Lori Goldberg

In a CCAA proceeding, the Monitor brought a motion for advice and directions seeking to challenge $2.3 million in payments in kind made by the debtor to a trade creditor as oppressive.

The court dismissed the motion, finding that the Monitor had not been empowered to bring such proceedings on behalf of the debtor corporations and that it was inappropriate for the Monitor to drop its neutrality to pit creditors against each other.

Furthermore, the Monitor failed to prove that any creditors held reasonable expectations that were breached by the transfers.

The Monitor in a CCAA proceeding sought to declare void as an unjust preference $12 million in HST payments made by the insolvent debtor to the Canada Revenue Agency shortly before commencing a proposal proceeding.

The court dismissed the motion, finding that the payments were funded by an inter-company loan specifically earmarked for the tax liability, meaning the transaction was economically neutral to the debtor and did not prejudice the recovery of unsecured creditors.

The defendant contractor brought a motion for summary judgment alleging the plaintiff subcontractor repudiated a contract for the supply and installation of structural steel on a retail construction project.

The plaintiff asserted the defendant wrongfully terminated the contract and claimed payment under a construction lien.

The court found numerous genuine issues requiring a trial, including whether either party fundamentally breached or repudiated the contract, whether time was of the essence where no delivery date appeared in the subcontract, whether consultant review of shop drawings was required before fabrication drawings were produced, and whether delays were attributable to the contractor or consultants.

The court also held that issues concerning the timeliness and quantum of the construction lien, damages, mitigation, and credibility disputes could not be fairly determined on a summary judgment motion.

Following a liability determination in favour of the plaintiff contractor, the court addressed a motion and cross‑motion concerning undertakings, refusals, and production relevant to the upcoming damages phase of trial.

The court limited relevance to matters affecting damages.

Several undertakings were ordered answered and certain disclosure ordered, including financial statements and notes referencing the litigation.

Some questions were declined as unnecessary or premature, and counsel were directed to attempt agreement on the scope of further production.

The moving municipality was largely successful and awarded partial indemnity costs.