James P. McReynolds

The bankrupt applied for an absolute discharge from bankruptcy.

The trustee opposed the discharge under s. 173(1)(o) of the Bankruptcy and Insolvency Act, arguing the bankrupt failed to perform his duties by not disclosing and assisting in the realization of a 47-foot yacht.

The court found the bankrupt was evasive, uncooperative, and failed to fulfill his duties to disclose and deliver the yacht to the trustee.

Given the bankrupt's conduct and the need to maintain the integrity of the bankruptcy system, the court refused an absolute discharge and instead granted a conditional discharge requiring the bankrupt to pay $40,000 to the estate over 60 months.

The plaintiff commenced an action against the corporate defendant and its director shortly after the director made an assignment in bankruptcy.

Years later, after the trustee was discharged but the director remained an undischarged bankrupt, the plaintiff obtained default judgment against the director without notice.

The court held that commencing the action during the bankruptcy stay was a curable irregularity, not a nullity, and the stay lifted when the trustee was discharged.

However, the court set aside the default judgment because the plaintiff failed to serve the motion materials on the director before she was noted in default, contrary to the Rules of Civil Procedure.

The director was ordered to attend an examination in aid of execution on behalf of the corporate defendant only.

The plaintiffs, residential tenants of a luxury property, sought an interim injunction to regain possession after the defendant landlords unilaterally terminated the tenancy, changed the locks, and moved back in.

The plaintiffs had been absent from the property since December 2020 due to the pandemic.

The court applied the RJR-MacDonald test and dismissed the motion, finding that while there was a serious issue to be tried, the plaintiffs would not suffer irreparable harm as the corporate plaintiff could operate elsewhere and the individual plaintiff remained abroad.

The balance of convenience favoured the landlords, who could better maintain the property pending resolution of the disputes before the Landlord and Tenant Board.

The defendants brought a motion to set aside a default judgment related to a commercial lease dispute.

The court applied the five-factor test from Mountain View Farms Ltd. v. McQueen and found that while the defendants moved relatively promptly, they failed to provide a plausible explanation for their default and lacked an arguable defence on the merits due to a prior agreement waiving their claims.

The defendants' motion was dismissed.

The plaintiff's motion to amend the default judgment to reflect a prior payment was granted, reducing the principal amount to $85,850.00.

The plaintiffs (defendants to the counterclaim) brought a motion under Rule 56.01(1)(d) for an order requiring the corporate defendant (plaintiff by counterclaim) to post security for costs in the amount of $80,000.

The court found that while the corporate defendant was impecunious, it would be unjust to order security for costs because the counterclaim was closely related to the main action, the impecuniosity may have been caused by the moving parties' conduct, and the co-defendants undertook to pay any costs awarded against the corporate defendant.

The motion was dismissed.

The defendant moved to set aside a default judgment obtained after she failed to attend the trial.

She explained her absence was due to generalized anxiety disorder, feeling overwhelmed after her lawyer removed himself from the record on the eve of trial, and a pre-trial judge's prediction that an adjournment would be denied or granted on onerous terms.

The court found her explanation reasonable, noting she moved promptly to set aside the judgment and presented an arguable defence based on an oral family agreement and part performance.

The motion to set aside the default judgment was granted.

The moving party landlord brought a motion within a receivership proceeding seeking an order for the court-appointed receiver to pay $319,016 in occupation rent for the use of a marina.

The court examined whether the receiver's actions, such as changing locks and keeping assets on site, constituted occupation that deprived the landlord of use.

The court found that the receiver did not occupy the premises in the sense necessary to attract liability, noting that the landlord was given a key, found a new tenant, and insisted that third-party boats remain on site.

The motion was dismissed.

During a family law proceeding, a non-party corporation sought clarification regarding whether earlier disclosure and examination orders were stayed pending a forthcoming motion to set them aside.

The court considered whether it retained jurisdiction to grant or clarify a stay despite an appeal having been initiated, examining conflicting authorities interpreting Rule 63.02.

Adopting the view that the amended rule grants concurrent jurisdiction to both the trial court and the appeal court to grant a stay, the court held it retained jurisdiction.

Applying a balance of convenience analysis, the court found that requiring the non-party to comply with onerous disclosure obligations before the motion was determined would cause disproportionate prejudice.

The court ordered a stay of the prior orders until the motion to set them aside or change them is decided.

An automobile insurer commenced an action alleging that medical assessment centres and their principals conspired to submit fraudulent statutory accident benefits claims and supporting documentation, causing the insurer to pay over $500,000 in benefits.

The defendants moved under rule 21.01(b) of the Rules of Civil Procedure to strike the fresh as amended statement of claim for failure to disclose a reasonable cause of action.

The court held that the claims for fraudulent misrepresentation, negligent misrepresentation, negligence, unjust enrichment, and conspiracy were adequately pleaded and provided sufficient particulars.

The court rejected the defendants’ argument that the conspiracy claim merged with the tort claims at the pleadings stage, holding that the merger doctrine should not be used to strike a conspiracy claim before trial.

The only portion struck was the allegation that the defendants breached the Criminal Code, which was held to be scandalous in a civil pleading.