Benjamin Gordon Blay

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.

This case conference order addresses procedural and factual disputes in an ongoing insolvency proceeding involving Eureka 93 Inc. and three related companies under the BIA.

The noteholders (Dominion Capital LLC) had postponed creditor votes on proposals, seeking further investigations and information regarding asset valuations and the validity of their claims.

The debtors challenged the noteholders' status as creditors for one proposal.

The court provided directions to resolve the gridlock, ordering the Proposal Trustee to assess and value the noteholders' proofs of claim, setting deadlines for examinations of witnesses, and mandating the completion of votes on the proposals.

The court emphasized the Trustee's role in validating claims and cautioned against allowing peripheral issues to unduly complicate the summary insolvency process.

This decision addresses the costs of an application and counter-application concerning corporate ownership and control of the "Tetra group" of companies.

The court previously dismissed the application brought by Lois Struthmann and Tansy Serediak and generally granted the relief sought by Aloysius (Al) Struthmann in his counter-application.

Mr. Struthmann, as the successful party, sought costs on a partial indemnity basis.

The court awarded Mr. Struthmann costs fixed at an all-inclusive amount of $38,000.00, payable jointly and severally by Lois Struthmann and Tansy Serediak.

The court rejected arguments that no costs should be awarded due to good faith or the absence of a formal liability finding, emphasizing the indemnity principle and the unsuccessful parties' refusal to accept an earlier settlement overture.

This decision addresses the costs of a dismissed application where the applicants, Victor Vetro and Linda Montanari, sought to remove Marilyn Gail Barbour as trustee of a property and transfer it to Ms. Montanari.

The application was dismissed by consent after Mr. Vetro's bankruptcy trustee intervened and settled a related application.

Ms. Barbour sought substantial indemnity costs, while the applicants argued for no costs.

The court awarded Ms. Barbour partial indemnity costs of $16,500, finding her to be the successful party on the costs issue, but not entitled to substantial indemnity based on the record before the court.

The plaintiff sought summary judgment against the individual defendants, Robert Paul Rawlings and Darlene Ann Rawlings, and a declaration that the judgment would survive their bankruptcy.

The plaintiff had paid deposits to Rawlings Constructors Limited for a custom home that was never completed, and the corporation subsequently went bankrupt.

The plaintiff argued that the individual defendants were personally liable due to fiduciary duty, fraudulent misrepresentation regarding a book's authorship, and that the corporate veil should be pierced.

The court dismissed the plaintiff's motion, finding no personal liability for the Rawlings post-bankruptcy, no fiduciary duty, no fraudulent misrepresentation, and no basis to pierce the corporate veil.

This corrigendum amends a previous decision regarding the proposal of Innovative Coating Systems Inc. The original decision did not approve the proposal but granted leave for the debtor to file an amended proposal within ten days, specifically removing a deemed release clause.

It also adds a sentence concerning the trustee's costs.

Middlesex Condominium Corporation No. 195 (MCC 195) brought a motion for partial summary judgment against Sunbelt Business Centres (Canada) Inc. (Sunbelt) regarding liability for hydro accounts and window replacement costs for commercial condominium units.

The court dismissed Sunbelt's limitation period defense, finding that the condominium's declaration was not an "agreement" to vary limitation periods and that MCC 195's claim was timely.

The court found Sunbelt liable for the hydro accounts servicing the commercial units, rejecting Sunbelt's interpretation that "separately metered for each unit" required one meter per legal unit.

However, the court found MCC 195 responsible for the cost of window replacement, determining that the windows were common elements and not exclusive use common elements, thus falling under the corporation's maintenance obligation.

The moving party corporation sought to set aside a default judgment in an action alleging breach of contract relating to approximately $800,000 advanced for construction of jail cells.

The corporation had initially chosen not to defend the action but later sought to file a defence and counterclaim asserting equitable set-off and alleging breach of contract and breach of trust by the plaintiff.

Applying the principles from Nobosoft Corp. v. No Borders Inc., the court considered the surrounding factual matrix, including the reasons for the delay, the absence of prejudice, and whether there was an arguable defence.

Although the proposed defence appeared weak and lacked specificity, the court held that an arguable defence existed and that the delay was not inordinate.

The default judgment was set aside on terms, including security for costs of $20,000 and payment of the plaintiff’s motion costs.