Heath P.L. Whiteley

The Trustee in Bankruptcy brought a motion seeking to revive a 2004 fraudulent conveyance action against the Bankrupt and his brother, and to set aside a 2007 order and notice of discontinuance.

The court dismissed the motion, finding that the Trustee had settled the action against the brother in 2007.

Furthermore, the court held that the fraudulent conveyance claims were res judicata, as they had been fully litigated and dismissed in a prior family court proceeding where the Trustee actively participated as an intervenor.

The court also refused to approve the Trustee's reports due to factual inaccuracies and declined to authorize criminal proceedings.

Finally, the court ordered the Trustee to pay partial indemnity costs personally, as it had pursued adversarial litigation without inspector authority and knowing the estate had no funds.

The plaintiffs sought damages for wrongful dismissal, unpaid commissions, and punitive damages arising from the termination of a sales and marketing role in condominium developments.

The court found that the plaintiff was an employee rather than an independent contractor, notwithstanding the use of corporate invoices for payment.

After being terminated without notice, the plaintiff was entitled to commissions on completed condominium sales, damages for five months’ reasonable notice, and punitive damages due to the defendant’s post‑termination conduct, including intimidation and a baseless counterclaim alleging theft of documents.

The court rejected the defence based on the Real Estate and Business Brokers Act because it was not pleaded and because the plaintiff acted as a full‑time employee.

Judgment was granted in favour of the plaintiff and the defendant’s counterclaim was dismissed.