John Siwiec

The plaintiff brought a motion for summary judgment against the defendant, who had signed a personal guarantee for construction materials supplied to his corporation.

The corporation subsequently filed for bankruptcy.

The court found no genuine issue for trial regarding the enforceability of the guarantee, holding the defendant personally liable.

However, the court found a genuine issue for trial regarding the defendant's limitations defence, as there was insufficient evidence to conclusively determine whether the invoices constituted a running account or if a partial payment restarted the limitation period.

Partial summary judgment was granted for invoices issued within two years of the claim.

The defendant, having previously obtained summary judgment establishing the third party's obligation to indemnify her for liabilities arising from commercial loans, sought summary judgment for $150,000, representing the amount she paid to settle the plaintiff bank's claims against her.

The court found the settlement amount to be reasonable given the risks and potential liabilities involved, and granted judgment for $150,000 plus costs.

The court also granted a temporary stay of enforcement to allow the self-represented third party, who is subject to a vexatious litigant order, an opportunity to launch an appeal.

The plaintiff brought a motion for summary judgment seeking $84,725.09 to reconcile a final profit split under a magazine publishing agreement that ended mid-year in 2019.

The agreement required the defendant to provide a minimum of $150,000 in advertising revenue annually, with the first $150,000 of net profit paid to the defendant reflecting this contribution.

Because only one edition was published in 2019, the defendant contributed only $62,625 in ad revenue but argued it was still entitled to the full $150,000 profit priority.

The court applied principles of contractual interpretation and found that the profit priority was linked to the actual ad revenue contributed.

The court granted summary judgment in favour of the plaintiff.

The moving parties sought leave to appeal an interlocutory order striking out an affidavit filed in opposition to an application to recognize and enforce a foreign arbitral award.

The motion judge had struck the affidavit on the basis that it was clearly irrelevant and scandalous.

The court dismissed the motion for leave to appeal, finding no conflicting decisions on matters of principle and no good reason to doubt the correctness of the motion judge's order.

The applicant brought a motion to strike an affidavit filed by a respondent in an application to recognize and enforce a foreign arbitral award under the International Commercial Arbitration Act.

The affidavit alleged that the applicant had engaged in money laundering and other criminal activity relating to the investment that was the subject of the arbitration.

The court held that the affidavit attempted to relitigate issues already determined by the arbitral tribunal and would improperly create a “trial within a trial” on the merits of the award.

Because recognition and enforcement proceedings under the UNCITRAL Model Law permit only narrow defences, the affidavit was clearly irrelevant and scandalous.

The affidavit was struck, though it could remain in the record solely as part of the Paris annulment proceedings.

The bankrupt applied for a discharge from bankruptcy, which was opposed by the Department of National Defence and the bankrupt’s former spouse.

The court considered several grounds under s. 173(1) of the Bankruptcy and Insolvency Act, including that the bankrupt’s assets were worth less than fifty cents on the dollar of his unsecured liabilities, that he contributed to the bankruptcy through unjustifiable extravagance, and that he had previously been convicted of fraud by a Standing Court Martial.

Evidence also established that the bankrupt failed to disclose the disposition of a boat transferred to his children prior to bankruptcy.

Because multiple s. 173 facts were proven, the court held that an absolute discharge could not be granted.

A conditional discharge was ordered requiring payments totaling $8,500 to the trustee.

The moving party sought an order lifting the automatic stay of proceedings under s. 69.3 of the Bankruptcy and Insolvency Act to permit continuation of family law proceedings seeking equalization of net family property.

The dispute concerned whether the stay should prevent the moving party from pursuing remedies against exempt assets such as a pension and RRSPs that do not vest in the bankruptcy trustee.

Applying the principles from Schreyer v. Schreyer, the court held that lifting the stay would not prejudice the bankrupt estate because exempt assets are not available to ordinary creditors.

It was therefore equitable under s. 69.4 of the BIA to permit the family law proceedings to continue to determine equalization rights.

The stay was lifted and the trustee was directed to hold the estate open for a period related to the family law determination.