Jeffrey J. Simpson

The plaintiff, Business Development Bank of Canada, moved for summary judgment to enforce a personal guarantee against the defendant Kelly Ann Bovair.

Bovair resisted, arguing the guarantee failed for want of consideration or was unconscionable due to alleged misrepresentations by her spouse and co-defendant, Justin Carter, and the bank's failure to ensure independent legal advice.

The court granted summary judgment to the plaintiff, finding the guarantee valid and enforceable, as consideration flowed to the principal debtor, and the bank had no obligation to ensure independent legal advice given the lack of evidence it knew or should have known of fraud, misrepresentation, or undue influence.

This appeal concerned the enforceability of an unlimited and continuing guarantee executed by the appellant, Jaimee Lynn Gdak, in favour of Clearflow Commercial Finance Corp. The appellant, a director and officer of the principal debtor (Trigger Wholesale Inc.), argued she was released from the guarantee due to material changes in the indebtedness, lack of independent legal advice, lack of sophistication, unconscionability, and Clearflow's alleged breach of agreement.

The Court of Appeal upheld the motion judge's decision, finding the guarantee valid, binding, and enforceable.

The court affirmed that the appellant had contracted out of common law protections regarding material changes and found no errors in the lower court's findings regarding her sophistication, the need for independent legal advice, or the interpretation of the guarantee.

The applicant brought a motion to enforce personal guarantees executed by the respondents, a husband and wife who were directors of the debtor corporation.

The husband did not oppose the motion.

The wife argued she was released from her guarantee due to an undisclosed material change in the principal amount of the indebtedness, lack of independent legal advice, and that the applicant had released her through its conduct during restructuring negotiations.

The court found that the guarantee explicitly allowed for changes in the amount of obligations, the wife was a sophisticated business owner who did not require independent legal advice, and the applicant had not provided an express written waiver as required by the guarantee.

The motion was granted and both respondents were found liable.

The plaintiff, Trisan Construction, brought a second motion for summary judgment against its former lawyer, Mark A. Epstein, to quantify damages arising from Epstein's admitted negligence.

Epstein had failed to advise Trisan of their ability to bring a breach of trust claim against the directors of Bianchi Contracting (2004) Inc. (BCI) under the Construction Lien Act.

The court found that Epstein's negligence caused Trisan to suffer damages and, after considering Mr. Bianchi's identified assets and various contingencies inherent in debt collection, fixed the damages at $50,000.

The court declined to include potential recovery from a tracing action against RBC, as that was not part of the initial negligence finding.

The respondent brought a motion requiring the applicants to post security for costs and pay outstanding costs awards before proceeding with their application regarding a hotel development dispute.

The court found that the respondent was prima facie entitled to security for costs under Rule 56.01 and that the applicants failed to establish impecuniosity or a real possibility of success.

The court ordered the applicants to pay $22,748.74 in outstanding costs and post $50,000 in security for costs within 30 days, staying the application until compliance.

The applicant Trustee in Bankruptcy and Receiver sought approval of its reports and a declaration that a 2009 transfer of a half-interest in a residential property by the bankrupt to his spouse was a transfer at undervalue under the Bankruptcy and Insolvency Act and a fraudulent conveyance under the Fraudulent Conveyances Act.

The court approved the Receiver's reports but dismissed the application regarding the property transfer.

The court held that the 'transfer' under s. 96 of the BIA occurred when the transfer documents were executed, not when they were registered, placing it outside the five-year lookback period.

Furthermore, the transfer was made for valid consideration as part of a matrimonial settlement, and there was no intent to defeat creditors.

The applicants, a group of companies owned by Dondeb Inc., sought an Initial Order under the Companies' Creditors Arrangement Act (CCAA) to enable an orderly liquidation of their assets.

The application was opposed by approximately 75% of the secured creditors, who argued for individual receiverships due to a lack of confidence in the applicants' principal and the burden of CCAA administrative costs.

The court dismissed the CCAA application, finding it unlikely that a successful plan could be developed and approved by the creditors.

Instead, the court issued a Global Receivership Order, which was supported by the opposing creditors, to achieve an orderly liquidation at a lower cost.