Howard F. Manis

The court-appointed receiver brought a motion seeking a declaration that the debtor had no automatic right of appeal from an Approval and Vesting Order under the Bankruptcy and Insolvency Act, and an order denying leave to appeal.

The debtor argued it had an automatic right of appeal under s. 193(a) or (c) of the BIA, or alternatively sought leave under s. 193(e).

The Court of Appeal held that the debtor had no automatic right of appeal, as the order did not affect future rights or result in a direct loss exceeding $10,000.

The Court also denied leave to appeal, finding the proposed appeal lacked merit, did not raise an issue of general importance, and would unduly hinder the insolvency proceedings.

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 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 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.

The trustee in bankruptcy sought directions on whether $100,000 of a $275,000 motor vehicle accident settlement, allocated for 'loss of future competitive advantage', constituted property of the bankrupt under s. 67 of the Bankruptcy and Insolvency Act or income under s. 68.

The court applied a purposive approach, finding that the essential nature of the award was compensation for lost future income.

Consequently, the court held that the settlement funds were 'akin to income' and should be treated as income under s. 68 of the BIA, rather than property.