James Aston

The defendants moved to strike the plaintiff's claim for abuse of process, arguing that the prior decision in Leavens v. Schwartz (the "Shotgun Decision") had finally disposed of the matter.

The plaintiff sought to challenge a buy/sell transaction that had been enforced by the court, alleging that the defendants had engaged in a secret investment arrangement with third-party financiers without disclosure.

The court found that the claim constituted an abuse of process because the underlying subject matter was identical to the prior proceeding, the issues could have been raised before the prior judge, and the plaintiff was essentially seeking to undo a final court decision with which he was dissatisfied.

The court struck the claim without leave to amend.

This is a costs endorsement following the dismissal of a contempt motion brought by succeeding estate trustees against former estate trustees for alleged breach of a document production order.

The court awarded costs to the successful respondents (former estate trustees), payable from the estate assets rather than personally by the applicants.

The court rejected the applicants' argument that success was divided and clarified that contempt motions must be used as a last resort, not a routine enforcement tool.

The court also addressed the principles governing costs awards in estate litigation and the entitlement of estate trustees to indemnification for reasonably incurred legal costs.

The court considered an application by Aggregated Investments Inc. for the appointment of a receiver over the assets of the respondents, including real property, under the Courts of Justice Act and the Bankruptcy and Insolvency Act.

The application was dismissed.

The court found that a bona fide defence existed regarding the underlying debt, specifically whether Aggregated breached its duty of good faith by accepting a reduced recovery and shifting value to a related party.

The court held that the appointment of a receiver was not just or convenient in the circumstances, given the triable issue as to the propriety of the debt and the conduct of Aggregated.

The defendants, Jonathan Rosenthal and Benjamin Barrett, acting as Estate Trustees of Cyril Hirsch Rosenthal's Estate, brought a motion seeking an order to lift the deemed undertaking rule under Rule 30.1.01(8) for certain documents ("Pervez Productions") disclosed by Paragon Protection Ltd. in this proceeding.

They sought leave to use these documents in a related Estate Proceeding and a pending contempt motion against a former estate trustee, Syed Pervez.

The court granted the motion, finding that the interests of justice outweighed any potential prejudice to Paragon, especially given the close relationship between the proceedings and the fact that the documents were already ordered to be produced and were relevant.

The People's Trust Company, as assignee of Enlightened Funding Corporation, brought a motion seeking an order to compel Deloitte Restructuring Inc., the court-appointed Receiver of Velocity Asset and Credit Corporation and 926749 Ontario Ltd., to produce documents relevant to the personal bankruptcy application against Hugh Waddell, the principal of the Respondents.

Despite Waddell's non-cooperation and previous adjournments, the court dismissed the motion.

The court found that the Receiver's appointment order, specifically section 4(m) concerning information sharing, was not broad enough to authorize production for purposes outside the receivership's primary objectives.

The court emphasized that the documents were sought to prosecute the bankruptcy application against Waddell, not to advance the receivership of the Respondents.

The court noted that other avenues exist within the Bankruptcy Application to compel such production.