Jeremy K. Sacks

Downing Street Financial Inc. sought leave to appeal an order dismissing its motion for summary judgment and granting summary judgment to the responding parties, which dismissed an action related to a co-tenancy agreement and alleged fraudulent conveyances/preferences under the Bankruptcy and Insolvency Act and other provincial statutes.

The Court of Appeal dismissed the motion for leave to appeal, finding that the proposed appeal was not prima facie meritorious and did not raise issues of significance to insolvency practice.

The court upheld the motion judge's findings that the parties dealt at arm's length and that deadlocked shareholders do not have de jure control for the purposes of the BIA, and that there was no intent to defeat creditors.

The plaintiff brought a motion seeking two heads of relief: (1) an order compelling defendants to deliver affidavits of documents, attend discoveries, and grant leave to amend the statement of claim; and (2) an order compelling judgment debtors (Pistachio Financier Corp. and Real Crowd Capital Inc.) to answer refusals and undertakings from an examination in aid of execution, and requiring CIBC to produce documents.

The court noted the defendants' delay in document production, leading to the first part of the motion being resolved by consent with costs awarded to the plaintiff.

The second part of the motion was adjourned sine die because it was brought in the wrong proceeding and lacked proper documentation (factum/compendium).

The court emphasized the importance of communication, cooperation, and commonsense, and best practices for filing factums.

The appellants appealed a motion judge's order striking paragraphs from their amended statement of defence.

The primary issue was whether leave to appeal was required under section 13 of the Companies’ Creditors Arrangement Act (CCAA) and, if so, whether it should be granted.

The Court of Appeal applied a purpose-focused inquiry, concluding that the motion judge's order was 'made under' the CCAA because it was incidental to the CCAA proceedings and impacted the restructuring.

Consequently, leave to appeal was required.

The court then denied leave, finding that the appellants did not meet the criteria for granting leave, as the appeal lacked prima facie merit, was not of significant interest beyond the parties, and would unduly hinder the progress of the action and CCAA proceedings.

The plaintiffs sought a Mareva injunction against multiple defendants in a dispute involving cryptocurrency investments.

The motion was dismissed for the third time, as the plaintiffs failed to provide sufficient evidence of a strong prima facie case or a real risk of asset dissipation by the defendants.

The court found the dispute to be primarily contractual, not indicative of fraudulent asset flight.

Costs were awarded to the defendants on a substantive indemnity scale.

This appeal concerned whether a "Royalty Purchase Agreement" constituted an advance of credit subject to the criminal interest rate provisions of section 347 of the Criminal Code.

The appellant, Hybrid Financial Ltd., argued that a buyout option payment under the agreement resulted in a criminal rate of interest.

The application judge had dismissed Hybrid's claim, characterizing the agreement as an equity investment and finding the payments not to be 'interest' or triggered by a voluntary act.

The Court of Appeal overturned this, holding that the substance of the transaction was an advance of credit, the buyout payment constituted 'interest' under the broad definition in section 347, and a contractual 'Maximum Permitted Rate' clause prevented the application of the 'voluntary act' exception, ensuring a lawful rate.

The matter was remitted to the Superior Court for determination of the buyout amount under the adjusted rate.

The appellant, Professional Court Reporters Inc. (PCR), appealed a summary judgment decision concerning a sublease default by the respondents, Pistachio Financier Corp. and Real Crowd Capital Inc. o/a R2.

PCR sought damages for lost profit, post-judgment interest at a contractual rate, and costs on a higher scale, all of which were denied or limited by the motion judge.

The Court of Appeal upheld the motion judge's decision to deny lost profits, finding insufficient evidence to establish a loss.

However, the Court allowed the appeal regarding post-judgment interest and costs, ruling that contractual terms for interest and costs should be enforced absent exceptional circumstances, which were not present.

The Court of Appeal for Ontario issued a costs endorsement following an appeal hearing related to the Companies’ Creditors Arrangement Act (CCAA) proceedings of Urbancorp Cumberland 2 GP Inc. and related entities.

The panel reviewed the costs requests from the appellants and respondents and found the amounts reasonable.

Specific costs were ordered to be paid out of the Estate of the Cumberland Group to the appellants (Toro Aluminum, Speedy Electrical, Dolvin Mechanical) and two respondents (Guy Gissin, Tarion Warranty Corporation).

The Monitor and the Attorney General of Ontario did not seek costs.

This appeal concerns the effectiveness of a statutory trust under s. 9(1) of Ontario's Construction Lien Act (CLA) in Companies' Creditors Arrangement Act (CCAA) insolvency proceedings.

Unpaid contractors (appellants) claimed a trust over proceeds from the sale of condominium units by the insolvent developer (Cumberland Group).

The motion judge denied the trust, relying on Re Veltri Metal Products Co., reasoning that the CCAA Monitor's involvement prevented the trust from arising.

The Court of Appeal allowed the appeal, clarifying that a s. 9(1) CLA trust can be effective in CCAA sales processes and is only displaced by federal paramountcy if it conflicts with a specific CCAA priority.

The court distinguished Veltri, stating it did not prevent a s. 9(1) trust when proceeds exceed mortgage debt and expenses, and confirmed the "deemed receipt" rule.

The Monitor of a CCAA-protected company appealed a motion judge's decision dismissing its motion to disallow a creditor's claim secured by a guarantee.

The creditor, Speedy Electrical Contractors Ltd., had provided a personal loan and performed electrical work for Urbancorp entities.

When Speedy threatened legal proceedings and held a construction lien, the parties entered into a debt extension agreement whereby Speedy agreed to discharge its lien and extend the loan in exchange for a secured guarantee from King Residential Inc. (a related Urbancorp entity) over condominium units.

The Monitor argued the guarantee was a transfer at undervalue under section 96 of the Bankruptcy and Insolvency Act and a fraudulent conveyance under the Fraudulent Conveyances Act.

The motion judge found Speedy and KRI were dealing at arm's length and that fraudulent intent was not established.

The Court of Appeal dismissed the appeal, upholding the motion judge's findings.

The plaintiff, Concord Plumbing & Heating Ltd., brought a partial summary judgment motion against the defendant Northern Structures Ltd. for $114,959.01 in unpaid invoices for mechanical work on a Canadian Tire store construction project.

The motion was brought within a larger construction lien action.

The court first granted leave to bring the motion, finding it would expedite resolution if successful.

However, the court ultimately dismissed the partial summary judgment motion, citing the risk of duplicative proceedings and inconsistent findings due to intertwined issues with Canadian Tire's deficiency claims against Northern and Concord, and the complexity of determining deficiency claims on the record presented.

The appellants retained Birkshire Group Inc. to perform home renovation work.

After the relationship deteriorated, Birkshire registered a construction lien and sued for the balance owing.

The appellants counterclaimed and sued other respondents.

At trial, the judge awarded Birkshire damages and recognized a lien.

The appellants appealed, arguing the trial judge failed to address evidence from two witnesses called after the close of evidence.

The trial judge had determined this evidence was material to credibility issues but made no reference to it in his reasons.

The Court of Appeal found the trial judge's reasons deficient and allowed the appeal, ordering a new trial.

The Plaintiff, a numbered corporation, sought summary judgment for HST payment on a property sale to the Defendant, Lucia Pessoa Park, amounting to $364,000.

The Defendant brought a cross-motion for summary judgment regarding municipal development fees owed by the Plaintiff.

The court dismissed the Plaintiff's claim for HST, finding the sale was exempt as a used residential unit under the Excise Tax Act, and that even if HST were payable, the Plaintiff was deemed to have collected it due to a statutory declaration.

The court granted the Defendant's cross-motion for development fees, which the Plaintiff had conceded.

This ruling addresses costs and procedural issues following a prior decision that directed a trial due to inconsistent evidence, rather than granting summary judgment on an application.

The court ordered the matter transferred to the Small Claims Court, as agreed by the parties.

The court declined to make its previous factual findings binding on the trial judge or to issue an order regarding adverse inferences for a missing witness.

Costs were awarded to the respondents, as the applicants were found responsible for initiating the proceedings in the Superior Court via an application, which was deemed an incorrect format given the material factual disputes.

The applicants sought declarations regarding real estate commission entitlement and breach of fiduciary duty by their agent, Amir Mizrahi and Bridlepath and Progressive Real Estate Inc., arising from a property sale.

The core dispute involved whether a verbal agreement for a reduced commission of 2.75% in a dual agency scenario superseded the written listing agreement's 4.0% commission.

The court found significant factual inconsistencies in the evidence, particularly concerning the parties' contractual intentions, Mizrahi's knowledge of the applicants' understanding, and the nature of the agency relationship.

Consequently, the court determined that the issues could not be resolved on an application and ordered that the matter proceed to trial, allowing for viva voce testimony and a full assessment of credibility.