Howard Floyd Manis

The Trustee in bankruptcy applied under s. 96(1)(b)(ii) of the Bankruptcy and Insolvency Act for a declaration that the bankrupt's 2018 transfer of his interest in a Florida property to his wife was a transfer at undervalue and void.

The court found that the transfer met the preconditions for a transfer at undervalue, including being to a non-arm's length party within five years of bankruptcy, and that the bankrupt intended to defraud, defeat, or delay creditors, as evidenced by "badges of fraud" such as existing lawsuits and inadequate consideration.

The court declared the transfer of the bankrupt's half interest in the property void and ordered the wife to pay half of the net proceeds from her subsequent sale of the property to the Trustee.

The moving party, a secured creditor and former spouse of the bankrupt, brought a motion to remove the trustee in bankruptcy for cause under section 14.04 of the Bankruptcy and Insolvency Act.

The moving party alleged misconduct regarding the trustee's handling of proofs of claim and voting at the first meeting of creditors, as well as the trustee's attempts to sell a condominium owned by a corporation whose shares were solely owned by the bankrupt.

The court found that the trustee acted in accordance with the BIA at the meeting of creditors and that its actions to preserve the condominium were not unreasonable.

The motion to remove the trustee was dismissed.

The Trustee in bankruptcy, msi Spergel Inc., brought a motion seeking various reliefs against the bankrupt, Jose Lava Suguitan, and his spouse, Sarah Morrison, as well as financial institutions and a bookkeeper.

The court granted orders compelling Mr. Suguitan to provide information and documentation regarding his personal affairs, and Ms. Morrison to answer undertakings from her examination.

The court also ordered banks and Ayesha Meher to provide Mr. Suguitan's personal banking and tax information.

However, the court dismissed the Trustee's request for corporate banking and accounting information, citing the principle of corporate separateness and insufficient evidence to pierce the corporate veil.

The motion for a declaration that the transfer of a Florida property was at undervalue, a preference, or a fraudulent conveyance was adjourned to a Commercial List judge due to the registrar's lack of jurisdiction for such declaratory relief.

The Royal Bank of Canada (RBC) sought the appointment of a receiver over the assets of the corporate and individual respondents due to undisputed defaults under security documents, with an outstanding debt exceeding $12 million.

Despite multiple adjournments granted by the court to allow the respondents to secure refinancing, no credible evidence of a firm financing commitment materialized, and the respondents failed to cooperate with the court-appointed monitor.

The court found it just and convenient to appoint a receiver, citing the respondents' lack of transparency and repeated failures to meet payment obligations or secure alternative financing.

The Trustee in Bankruptcy brought a motion to compel the bankrupt to produce required documents and information, and to evict a residential tenant from the bankrupt's condominium unit to facilitate its sale.

The court granted the unopposed order compelling the bankrupt to produce documents.

However, the court dismissed the request to order financial institutions to produce documents without notice, and dismissed the eviction motion, finding that the Trustee cannot circumvent the jurisdiction of the Landlord and Tenant Board under the Residential Tenancies Act.

The Trustee in bankruptcy sought court approval of its Amended Statement of Receipts and Disbursements.

The bankrupt objected, arguing that the fees of the Trustee and its counsel were excessive, particularly regarding time spent communicating with her children about the sale of a co-owned property and dealing with her complaints to the Office of the Superintendent of Bankruptcy.

The court found the fees to be fair and reasonable, noting the complexities involved and that the complaints were dismissed.

The Statement of Receipts and Disbursements was approved.

The appellant corporation appealed an Associate Justice's decision dismissing its motion under Rule 15.01(2) to be represented by a non-lawyer employee.

The Superior Court of Justice applied the palpable and overriding error standard of review.

The court upheld the Associate Justice's application of the Astrochrome test, finding no error in the determination that the proposed representative was not duly authorized by the board of directors and that it would be unfair to allow the representation.

The appeal was dismissed.

This endorsement addresses the issue of costs referred back to the court following previous motions and applications.

Cheadles LLP sought substantial indemnity costs of $38,137.85, while Walter Zanewycz argued no costs should be awarded.

The court found that costs were payable by Zanewycz to Cheadles LLP due to Zanewycz's conduct, which included unfocused materials, relitigation of matters, unsubstantiated allegations, and unrealistic claims.

Costs were awarded on a substantial indemnity basis, but the quantum was reduced from the amount sought, primarily by disallowing costs for multiple solicitors and law clerk time.

The final award was $18,000.00 inclusive of disbursements and HST.

Following the dismissal of the applicant's proceeding for an oppression remedy and fraudulent conveyance, the respondents sought substantial indemnity costs based on an offer to settle and unproven allegations of fraud.

The court found that Rule 49.10 did not entitle the respondents to substantial indemnity costs and that the allegations of fraudulent conveyance did not carry the moral opprobrium required for an elevated costs award.

The court also rejected the applicant's request for equitable set-off.

Costs were awarded to the respondents on a partial indemnity basis fixed at $18,550.

The bankrupt moved to rescind or annul a bankruptcy order after her father purchased the petitioning creditor's debt by way of assignment.

The bankrupt argued this constituted a fundamental change in circumstances, as her father had no intention of enforcing the debt.

The court dismissed the motion, finding no evidence that the bankruptcy order ought not to have been made at the time it was granted.

The court also declined to exercise its discretion to annul the bankruptcy, noting the public interest in the bankruptcy regime and the bankrupt's failure to explain why the petitioning creditor was forced to take numerous enforcement steps.

The applicant, the largest creditor of a bankrupt sports medicine clinic, brought an application under s. 38 of the Bankruptcy and Insolvency Act and the oppression remedy provisions of the Business Corporations Act.

The applicant alleged that the individual respondents flipped the bankrupt's assets and goodwill to a new corporation without paying fair market value, constituting a fraudulent conveyance or transfer at undervalue.

The court dismissed the application, finding no evidence that any assets with realizable value were conveyed to the new corporation prior to bankruptcy, nor any evidence of the business's going concern value.

The plaintiff brought an unopposed motion under Rule 49.09 to enforce a settlement agreement reached in a mortgage enforcement action.

The parties had agreed to all essential terms, including a payment of $725,000 by the defendant, but the defendant and her father subsequently failed to sign the finalized documents.

The court found the settlement clear, unambiguous, and not unconscionable, and granted the motion to enforce the settlement with costs.

The bankrupt applied for an absolute discharge from bankruptcy, which was opposed by his former spouse and the bankruptcy trustee.

The bankruptcy was filed shortly after the former spouse obtained a family law judgment for equalization and costs.

The court found that the bankrupt had transferred significant assets to his mother and a business associate prior to bankruptcy to defeat his former spouse's claims, and failed to disclose these transfers or a personal injury settlement to the trustee.

The court held that the bankrupt's conduct was evasive and untruthful, and that he used the bankruptcy process to avoid his family law obligations.

The court refused an absolute discharge and granted a conditional discharge requiring the bankrupt to pay $170,036.50 to the trustee, representing the compromised equalization claim and costs.

The applicant, an unsecured creditor, sought leave under s. 215 of the Bankruptcy and Insolvency Act to sue the licensed insolvency trustee.

She alleged the trustee improperly accepted an assignment in bankruptcy made by the bankrupt's wife using a power of attorney, arguing the power of attorney was defective and the wife was an undischarged bankrupt.

The court dismissed the motion, finding the power of attorney was valid, the wife was not mentally incapable under the Substitute Decisions Act, and the proposed claim disclosed no cause of action against the trustee.

The plaintiff brought a motion for contempt against the defendant judgment-debtor for failing to comply with court orders to attend an examination in aid of execution and produce bank records.

The defendant had previously been found in contempt and warned of incarceration if he did not comply.

Finding no mitigating factors and a flagrant disregard for the legal process, the court sentenced the defendant to 60 days in a provincial correctional institute, with conditions allowing for early release if he purged his contempt by participating in a meaningful examination and producing the required documents.

The plaintiffs, unpaid trades on a condominium construction project, brought motions to lift the statutory stays of proceedings under the Bankruptcy and Insolvency Act to pursue breach of trust claims under the Construction Lien Act against the individual directors of the insolvent developer.

The defendants cross-moved for summary judgment.

The court dismissed the motions to lift the stays, finding that the plaintiffs had previously settled their claims in exchange for a 'Trades Mortgage', the limitation period had expired, and there was no evidence of misappropriation or defalcation that would allow the claims to survive bankruptcy.

The actions against one of the directors were summarily dismissed.

The appellant sought full indemnity costs for his successful appeal and two underlying motions regarding his bankruptcy discharge and the treatment of a personal injury settlement.

The Court of Appeal declined to award full indemnity costs, finding that the Trustee's conduct was not reprehensible and that Rule 49.10 did not apply to grant a defendant substantial indemnity costs.

The court awarded the appellant partial indemnity costs of $5,000 for the motion before Spence J. and $10,000 for the appeal.

The appellant, a bankrupt who suffered severe injuries in a motor vehicle accident, appealed a motion judge's order regarding the calculation of his surplus income under s. 68 of the Bankruptcy and Insolvency Act.

The motion judge had included financial assistance payments, statutory accident benefits settlement proceeds, and portions of a personal injury settlement in the appellant's total income, resulting in a surplus income payment obligation and a $15,000 penalty for failing to disclose the settlements.

The Court of Appeal allowed the appeal in part, finding that the financial assistance loan, legal costs, and damages for future care and housekeeping should not have been included in the total income calculation.

The surplus income payment was set aside, but the $15,000 penalty for non-disclosure was affirmed.

The respondents brought a motion to dismiss an application seeking rescission of a trademark licence agreement and damages on the basis that the agreement constituted a franchise agreement under the Arthur Wishart Act (Franchise Disclosure), 2000.

The applicants argued that the relationship was substantively a franchise requiring statutory disclosure.

The court held that the agreement was a single trademark licensing arrangement within the exemption in s. 2(3)5 of the Act and lacked the hallmarks of a franchise relationship, including significant operational control or assistance.

As the Act did not apply, the contractual forum selection and choice of law clauses favouring New York were enforceable.

The application was dismissed and costs awarded to the moving parties.

In complex commercial litigation involving a Mareva injunction motion, counsel attended the court without following the Commercial List’s procedure for requesting an urgent appointment.

The court emphasized that counsel must contact the Commercial List Office before appearing urgently before a judge and may not bypass the process by attending unannounced in an attempt to vary a prior order.

Although the parties agreed to adjourn the Mareva motion and vary certain procedural timelines, the court criticized the improper attendance and ruled that the plaintiffs would not be entitled to claim costs for the unnecessary appearances.

The court granted the adjournment on consent with modifications and provided further scheduling directions for cross-examinations and the motion return.

The interim injunction remained in effect pending the rescheduled hearing.