Kenneth H. Page

The bankrupt, an undischarged chiropractor, applied for a discharge from bankruptcy after making an assignment in 2019.

The trustee, CRA, and the Office of the Superintendent in Bankruptcy opposed the discharge on multiple grounds under s. 173(1) of the BIA, citing repeated failures to cooperate, non-disclosure of bank accounts, credit cards, corporate interests, post-bankruptcy equipment purchases, gambling activity, and inability to verify surplus income obligations.

The court found the grounds under ss. 173(1)(a), (c), (d), (e), (j), (k), (m), and (o) proven, rejected the bankrupt's credibility on key points, and concluded that the bankrupt was not an honest but unfortunate debtor.

The discharge was refused, with leave to re-apply in one year upon full cooperation and disclosure to the trustee.

Discharge hearing for a bankrupt real estate agent who filed for bankruptcy in October 2020 with significant debts including a substantial costs award from family law proceedings.

The Trustee opposed discharge on multiple grounds including failure to comply with surplus income obligations under section 68 of the Bankruptcy and Insolvency Act, failure to perform duties under the Act, and unjustifiable extravagance in living.

The bankrupt earned over $590,000 in gross income during the bankruptcy period but dissipated funds without remitting tax or HST installments.

The court found multiple section 173 facts proven and imposed a conditional discharge requiring payment of $40,000 plus 20% of proven claims, along with tax compliance conditions.

The Debtor (2184698 Ontario Inc.) brought a motion seeking to stop the court-appointed Receiver's sale process of a mortgaged property and for a declaration that the Receiver breached its duties under the Bankruptcy and Insolvency Act.

The Debtor alleged deficiencies in the listing price and asymmetrical information sharing.

The court dismissed the motion, finding no breach of the Receiver's duty to act in good faith and in a commercially reasonable manner.

The court held that the Receiver's actions, including the listing price based on appraisals and consultation with the Lender, were appropriate and in the best interests of all stakeholders.

The motion was deemed premature, and a previously granted interlocutory injunction was vacated, allowing the sale process to proceed.

Costs were awarded against the Debtor.

The appellant, Andrew Clifford Miracle, appealed an order appointing a receiver over his assets, which was granted to the respondent, Glenn Bogue, to satisfy a debt arising from an arbitration award.

The arbitration concerned the joint ownership of a store on Tyendinaga Mohawk Territory.

Andrew alleged the application judge erred by lacking authority for a final receiver order, miscalculating contingency fees, and, crucially, that the order contravened sections 29 and 89 of the Indian Act, which prohibit enforcement by a non-status Indian against assets situated on a reserve.

The Court of Appeal identified the Indian Act issue as a threshold matter, noting it was not fully litigated or determined in the lower court.

Consequently, the court remitted the matter to the application judge for a determination on the effect of the Indian Act, adhering to the principle that new issues are generally not decided on appeal.

No costs were awarded.

The applicant, a 30% shareholder, sought an oppression remedy against the corporate respondent and its sole officer/director, Winston Penny.

Penny was found to have engaged in oppressive conduct by violating court orders, failing to provide financial information, destroying records, and appropriating corporate funds for personal use through uncollectible shareholder advances and improper expenses.

The court found a clear breach of the applicant's reasonable expectations and imposed personal liability on Penny.

The remedy included a buyout of the applicant's shares and the appointment of a receiver due to Penny's untrustworthy management.

The court calculated a buyout value of $3,993,750 for the applicant's shares, allowing parties to contest the valuation.

Costs were awarded to the applicant on a substantial indemnity basis due to the "crude and obvious" nature of the oppression.

The applicant, a 30% shareholder, brought an application for oppression against the respondent corporation and its sole director.

The director failed to produce audited financial statements, breached multiple court orders, and misappropriated millions in corporate funds for personal use.

The court found the director's conduct to be oppressive and imposed personal liability.

A receiver was appointed, and the court set a rough buyout value for the applicant's shares at $3,993,750, giving the parties options to accept the valuation or have the receiver conduct a formal valuation.

Following a summary judgment motion where the plaintiff succeeded against the corporate defendant and one individual defendant (Brar) for breach of contract and fraudulent misrepresentation, but failed on the fraud claims against the other individual defendant (Sharma), the court determined costs.

The plaintiff was awarded substantial indemnity costs of $55,000 against Brar due to the finding of fraud.

The corporate defendant was held jointly and severally liable for $40,000 of those costs on a partial indemnity basis.

No costs were awarded to or against Sharma due to divided success.

The plaintiff, a factoring company, sought summary judgment against a transport company and its directors for breach of contract and fraudulent misrepresentation related to uncollectible accounts receivable.

The court granted summary judgment for breach of contract against all defendants and for fraudulent misrepresentation against one director (Brar).

However, the fraud claims against the other director (Sharma) were dismissed due to insufficient evidence of his knowledge or recklessness.

The court also addressed the principles of summary judgment, partial summary judgment, and piercing the corporate veil.

The appellants appealed the dismissal of their application to annul the bankruptcy of Katherine Anne Fast under section 181(1) of the Bankruptcy and Insolvency Act.

The respondents were neighbours who obtained a Small Claims Court judgment against the appellants for water damage.

Mrs. Fast filed for voluntary bankruptcy shortly after the appellants attempted to enforce the judgment.

The application judge dismissed the annulment application, finding that despite the appellants' evidence that Mrs. Fast's property was worth significantly more than disclosed and that her assets exceeded her liabilities, she had a monthly income-expense deficit.

The Court of Appeal reversed, finding that Mrs. Fast was not an insolvent person as defined by the BIA because her substantial assets were available to satisfy all her liabilities and there was no evidence she could not meet her obligations as they came due.

The appellant, Solstice Two Limited, appealed a decision granting relief from forfeiture to the respondent, Valeria Scicluna, who had advanced $293,685 toward the purchase of a condominium but failed to close due to job loss.

The application judge awarded the recovered funds to the bankruptcy trustee rather than to Scicluna.

The Court of Appeal dismissed both the appeal and cross-appeal, upholding the relief from forfeiture as appropriate given the grossly disproportionate nature of the forfeiture and confirming that the funds properly vest in the bankruptcy trustee under the Bankruptcy and Insolvency Act.

This endorsement addresses the costs of a successful motion brought by the defendant to set aside a judgment obtained by the plaintiff.

The court ordered the plaintiff to pay the defendant $12,000 in costs on a partial indemnity basis.

The decision emphasized the plaintiff's breach of its duty of full and fair disclosure on a motion brought without notice, and its failure to consent to set aside the judgment when offered without costs.

The court applied factors under Rule 57.01 of the Rules of Civil Procedure and section 131 of the Courts of Justice Act, balancing indemnity for the successful party with access to justice.

The court also dismissed the plaintiff's request to pay costs into court due to the defendant's bankruptcy, finding no basis to hold funds for a potential trustee claim.

The defendant moved to set aside a judgment granted without notice, which included a declaration under s. 178 of the Bankruptcy and Insolvency Act that the debt survived bankruptcy due to fraud.

The court found that the plaintiff had no right to seek judgment without notice, as the defendant had not been noted in default, and there were significant credibility issues regarding service and the underlying fraud allegation.

The court emphasized that s. 178 declarations should not be made on default judgment motions or without a proper assessment of the fraud claim.

Applying the test for setting aside default judgments, the court found the defendant moved promptly, had a plausible excuse for default (disputed service), and an arguable defence on the merits (credibility issues regarding fraud and limitations).

The judgment was set aside due to non-disclosure, failure to give notice, and improper use of s. 178 BIA.

The plaintiff brought a motion under section 103 of the Courts of Justice Act and Rule 42.01 of the Rules of Civil Procedure seeking leave to issue a certificate of pending litigation over residential property allegedly transferred to defeat creditors.

The court found the plaintiff demonstrated a high probability of success on its guarantee claim against the individual defendant following the corporation’s default.

Evidence suggested the transfer of the property to the defendant’s spouse for no consideration bore several badges of fraud, including the intention to place assets beyond the reach of creditors while continuing to benefit from the property.

The court concluded the balance of convenience favoured preserving the property pending resolution of the action.

Leave to issue the certificate of pending litigation was granted and a litigation timetable was imposed.

The plaintiff brought an application for summary judgment under Rule 20.04 of the Rules of Civil Procedure following the defendant’s default on a truck lease.

The defendant did not dispute the default, arrears, or interest calculation but challenged the value credited for the returned vehicle.

The court found the appraisal relied on by the plaintiff to credit $47,000 for the truck was vague and insufficient to determine the proper credit.

As the only genuine issue was the appropriate valuation of the returned vehicle, the court ordered a trial limited to that issue.

The appellant appealed a decision of the Master dismissing its appeal from the trustee in bankruptcy's notice of disallowance.

The trustee had disallowed the appellant's claim against the bankrupt on the grounds of an offsetting claim owed by the appellant to the bankrupt.

The appellant argued the debt had been written off and released.

The Superior Court of Justice applied the palpable and overriding error standard of review and found that the Master reasonably concluded the debt had not been legally released, despite any accounting write-offs.

The appeal was dismissed.

The plaintiff supplier brought a motion for summary judgment seeking payment of outstanding invoices for wholesale jewelry sold to the corporate defendant and enforcement of alleged personal guarantees by the individual defendants.

The defendants argued that returned merchandise and diamonds supplied to the plaintiff eliminated the debt and that factual disputes required a trial.

Applying the summary judgment framework under Rule 20 and the guidance in Combined Air Mechanical Services Inc. v. Flesch, the court weighed the evidence and made credibility findings on the paper record.

The court rejected the principal defendant's evidence, found the return inventory had been properly credited at original sale prices, accepted a limited credit for diamonds, and held that the corporate defendant remained indebted.

The court also found an enforceable oral personal guarantee by one individual defendant but not by the others.