Krista Bulmer

This is a costs endorsement following multiple motions heard on April 7, 2017.

The court addressed costs for motions concerning the production of Marineland's representative for discovery and the exchange of affidavits of documents.

For the representative production, neither party was awarded costs due to their respective conduct, as both contributed to delays.

For Marineland's motion for Demers to produce a further and better affidavit of documents, Marineland was awarded partial indemnity costs of $3,500, as Demers had initially resisted disclosure, putting Marineland to unnecessary expense.

Demers' motion for Marineland to produce a further and better affidavit of documents was dismissed without costs, as Marineland had delayed particularizing its claim, contributing to the necessity of Demers' motion.

The parties brought cross-motions concerning discovery.

Marineland sought an order for Phillip Demers to deliver a further and better Affidavit of Documents and for John Holer to be produced as Marineland's representative for examination for discovery.

Demers sought a further and better Affidavit of Documents from Marineland and the production of a different alternate representative.

The court ordered Marineland to produce John Holer for examination for discovery under specific health-related conditions, with Carmen Grimaldi as an alternate, for a total of seven hours.

Demers was ordered to provide an updated Affidavit of Documents including additional documents and a detailed Schedule B. Demers' request for a further affidavit of documents from Marineland was denied at this stage, but Marineland was ordered to particularize its damages claim by August 1, 2017.

Demers was not required to provide hard copies or lists of publicly accessible electronic records.

The applicants sought to set aside or vary two interlocutory awards made by an arbitrator, arguing that the arbitrator made findings on unpleaded allegations, resulting in a 'trial by ambush.' The underlying arbitration involved a dispute over share ownership and unpaid dividends, where the arbitrator dismissed the applicants' summary judgment motion based on a limitation period defence.

The Superior Court dismissed the application, holding that the court should not interfere with interlocutory arbitral decisions to avoid piecemeal review.

Furthermore, the court found no procedural unfairness, as the issues had been properly pleaded and the applicants had the opportunity to call reply evidence but declined to do so.

In a receivership proceeding, a corporate director sought leave to control litigation commenced by debtor companies against a secured creditor, arguing that the receiver faced a conflict in pursuing claims against the creditor that initiated the receivership.

The court held that the request constituted an impermissible collateral attack on a prior order directing the receiver to conduct a sales process for the litigation asset.

The court further determined that secured creditors may participate as bidders in a receiver’s sales process, including by way of credit bid, and that such participation is consistent with insolvency principles requiring maximization of value for stakeholders.

Applying analogous bankruptcy authorities, the court approved the receiver’s recommendation to sell the action to the secured creditor through a $1 million credit bid and rejected objections regarding valuation and fairness of the process.

The applicant, a secured creditor, applied to appoint a receiver over the assets of the respondent guarantor following a default on commercial loans.

The respondent cross-applied to lift a stay of proceedings to continue a $100 million damages action against the applicant for alleged breach of a forbearance agreement, and sought to have the proceeds from the sale of the primary debtor's assets paid into court.

The court held that the receivership order did not stay the debtor's action, but refused to order the funds paid into court as the respondent had no proprietary claim to the funds that superseded the applicant's first-ranking security.

The court appointed a receiver over the respondent, finding it just and convenient given the unconditional nature of the guarantee.