Mark A. Freake

This decision concerns motions brought by Pride Group Holdings Inc. and related applicants under the Companies' Creditors Arrangement Act (CCAA) for interim relief in their restructuring proceedings.

The court addresses requests for approval of interim distributions, payment of direct costs, application of deferred payments for working capital, and approval of certain activities of the Monitor.

The court grants the requested relief, finding it necessary to maintain liquidity and continue the wind-down process, and holds that the proposed mechanisms are equitable and consistent with the CCAA’s remedial objectives.

The applicant, Castle Building Centres Group Ltd., sought bankruptcy orders against Steven D. Parkes and Jeff A. Parkes based on a $2.2 million judgment debt.

The respondents opposed, arguing no debt was owing due to waiver, guarantees being inapplicable to a subsidiary's debt, and valid counterclaims for rebates.

They also claimed the application was for an improper purpose and that Jeff Parkes was medically infirm.

The court found the judgment debt valid and binding, rejecting the respondents' attempts to re-litigate issues already decided by summary judgment, upheld on appeal, and denied leave to appeal by the Supreme Court of Canada.

The court also dismissed arguments of improper purpose and medical infirmity, concluding that the requirements for a bankruptcy order were met and there was no basis to exercise discretion to dismiss the application.

The applicant, an experienced litigation lawyer, sought leave to bring a motion to set aside the Registrar's dismissal of his appeal in a bankruptcy proceeding.

The appeal had been dismissed for failure to perfect it within the ordered timeframe.

The court found that the applicant's conduct, including repeated delays and failure to comply with rules, indicated an attempt to stall the enforcement of the bankruptcy order.

The motion for leave was dismissed with costs.

Bluecore Capital Inc., the respondent on appeal, brought a motion to lift the automatic stay of a bankruptcy order against Sergio Grillone, the appellant, and for an order requiring Mr. Grillone to post security for costs of the appeal.

The motion judge granted the motion, finding that Mr. Grillone had not diligently prosecuted his appeal, his grounds of appeal were very weak, he had failed to satisfy previous cost orders, and the relative prejudice strongly favoured lifting the stay to allow a trustee to manage his assets for the benefit of creditors.

The court also ordered Mr. Grillone to post $30,000 as security for costs.

The applicant, Bluecore Capital Inc., brought a bankruptcy application against the respondent, Sergio Grillone, a former lawyer, based on his failure to repay a litigation funding loan.

The respondent brought a motion for a mis-trial, alleging evidence tampering and perjury by the applicant's counsel and witness regarding the version of the loan agreement entered into evidence.

The court dismissed the mis-trial motion, finding the evidentiary irregularities were inadvertent and did not cause a miscarriage of justice.

The court granted the bankruptcy application, finding the applicant proved a debt exceeding $1,000 and an act of bankruptcy.

The court held that special circumstances existed to allow a single creditor application due to the respondent's litigious conduct and the multiplicity of claims against him, making a bankruptcy proceeding the most efficient way to manage his estate.

The appellants, The Rehill Company Limited and its owners, appealed a summary judgment that enforced their personal guarantees for corporate debt owed to Castle Building Centres Group Ltd. and dismissed their counterclaim.

The Court of Appeal dismissed the appellants' motion to introduce fresh evidence, finding a lack of due diligence and that the evidence would not have affected the outcome.

The court upheld the motion judge's findings that the debt was owed to the respondent, the rebate claim was not a genuine issue for trial, there was no breach of a subordination agreement, and the personal guarantees were continuing and enforceable.

The appeal was dismissed, and costs were awarded to the respondent.

The plaintiff brought a motion for summary judgment to enforce personal guarantees executed by the individual defendants for the corporate defendant's debt of over $2.3 million.

The corporate defendant was in receivership.

The individual defendants raised numerous defenses, including an alleged oral agreement to waive the guarantees, breach of a subordination agreement, and a counterclaim for unpaid rebates and damages for forcing the company into receivership.

The court rejected all defenses, finding no genuine issue requiring a trial, and granted summary judgment while dismissing the counterclaim.

The Trustee in bankruptcy sought court orders for access to the bankrupt's leased premises and an extension of the three-month period under s. 38(2) of the Commercial Tenancies Act to elect to retain or assign the lease.

The Landlord opposed, arguing the Trustee had no right to access or assign the lease, and no legal basis existed to extend the period.

The court found that the Trustee, distinct from the Receiver, retained its rights under the CTA, including access for marketing the lease.

The court also held it had jurisdiction to extend the s. 38(2) period, not through inherent jurisdiction, but by applying s. 2 of Ontario Regulation 73/20 (the COVID-19 Suspension Order), which suspends periods for steps in proceedings.

The court granted a 90-day extension, subject to conditions regarding occupation rent, and ordered the parties to bear their own costs due to the mixed result.

The appellant appealed the dismissal of his action against the respondents following trial.

The core issue was whether the trial judge erred in refusing to permit the appellant to amend his pleadings during trial to assert a claim in negligence.

The appellant had originally pleaded claims for assault and breach of the Residential Tenancies Act but abandoned these during trial, seeking instead to amend to plead negligence relating to the loss of his pet cat.

The trial judge refused the amendment, finding it would constitute a new cause of action that was statute-barred under the Limitations Act, 2002.

The Court of Appeal upheld this decision, finding that the original pleading did not contain sufficient material facts to support a negligence claim and that the proposed amendment sought to introduce new material facts rather than merely clarify or provide alternative relief based on facts already pleaded.

The plaintiff, 8174709 Canada Inc., brought a motion for partial summary judgment against the defendant, CBV Collection Services Ltd., for outstanding rent on a commercial lease.

The defendant brought a cross-motion to strike portions of an affidavit based on settlement privilege.

The court dismissed the plaintiff's motion for summary judgment, finding it was not an appropriate case for partial summary judgment due to genuine issues requiring a trial regarding the existence of a binding lease and breach of agreements.

The defendant's cross-motion was also dismissed without prejudice.

The plaintiff appealed a Master's order requiring the production of its solicitor's transaction file, while the defendants cross-appealed the Master's exclusion of docket entries and the costs award.

The Master had found that the plaintiff impliedly waived solicitor-client privilege by filing an extensive affidavit from its solicitor in support of a summary judgment motion.

The Superior Court dismissed both appeals, upholding the Master's finding of waiver and the exclusion of dockets as irrelevant.

The court awarded substantial indemnity costs against the plaintiff for appealing an issue it had effectively conceded before the Master.

The self-represented plaintiff sued the property management company and its manager following his eviction, alleging assault and breaches of the Residential Tenancies Act after his cat went missing during the removal of his belongings.

At trial, the plaintiff withdrew the assault and statutory breach claims, seeking instead to amend his pleadings to claim negligence.

The court dismissed the motion to amend, finding the negligence claim was statute-barred and not supported by the original pleadings.

The court also dismissed the plaintiff's action, finding the defendants complied with the 72-hour property retention requirement under s. 41 of the Act.

The defendants' counterclaim for rent arrears was dismissed for lack of standing.

The applicant condominium corporation sought relief from an allegedly oppressive shared facilities agreement (CRA) imposed by the declarant developer, and brought several actions for construction deficiencies and property management breaches.

The court found the CRA produced an oppressive result due to the conflicted manager's conduct and amended the agreement to allow the condominium to terminate the manager without cause.

The court also ruled on multiple summary judgment motions regarding construction deficiencies, dismissing the first action as a nullity for lack of statutory notice to owners, and granting summary judgment on various specific deficiency claims based on limitation periods and warranty coverage.

Damages were awarded for specific proven deficiencies and against the former property manager for failing to maintain insurance records.

The defendant appealed a master's order dismissing its motion to amend its statement of defence and counterclaim to add the plaintiff's sole director and his other corporations as parties.

The master had dismissed the motion due to a lack of evidence supporting the amendments and a finding that the pleadings did not disclose a tenable cause of action.

The Divisional Court allowed the appeal, holding that evidence is not required on a motion to add a party absent prejudice or abuse of process.

Furthermore, the proposed pleadings, which alleged the director used his corporations interchangeably to shield himself from liability, disclosed a tenable claim for alter ego liability.

The defendants moved to dismiss the plaintiffs' action for negligence as statute-barred under the Limitations Act, 2002.

The plaintiffs, second mortgagees, alleged the defendants failed to serve them with a notice of sale when the first mortgage went into default.

The court found that the plaintiffs knew or ought to have known they suffered damage and were worse off by September 2012, when they were served with a statement of claim in a related action.

As the plaintiffs commenced their action in January 2015, more than two years after discovering the claim, the action was dismissed as statute-barred.

The defendants brought a motion to dismiss the plaintiffs' negligence action on the basis that it was statute-barred under the Limitations Act, 2002.

The plaintiffs, who held a second mortgage, alleged the defendants failed to serve them with a notice of sale when the first mortgage went into default.

The court found that the plaintiffs discovered the damage when they were served with a statement of claim in a related action, which occurred more than two years before they commenced their claim.

The motion was granted and the action was dismissed with costs.

The Receiver brought a motion to distribute funds to the secured creditor, RBC, and to approve its fees.

The Union opposed, claiming a super-priority for unpaid pension and other benefits under the BIA over all companies in the receivership, and sought to claw back the Receiver's fees.

The court held that the CRA's deemed trust for unremitted source deductions under the Income Tax Act takes priority over the Union's BIA super-priority claims.

The court also rejected the Union's attempt to extend its claims to other corporate entities in the group, finding no evidence they were related employers or participated in the pension plan.

The Union's attempt to claw back the Receiver's fees was dismissed as an impermissible collateral attack.

The appellant creditor sought a declaration that the bankrupt's judgment debt survived his discharge from bankruptcy under s. 178(1)(d) of the Bankruptcy and Insolvency Act.

The trial judge dismissed the claim, finding that the bankrupt owed no fiduciary duty to the appellant, even though he had breached a fiduciary duty to a third party.

The Court of Appeal dismissed the appeal, confirming that s. 178(1)(d) applies only if the bankrupt owed a fiduciary duty directly to the creditor seeking the declaration.

The landlord appealed a decision declaring its Notice to Vacate void and granting a permanent injunction restraining it from re-entering the leased premises.

The landlord sought to demolish the building and argued the lease limited the tenant's remedies to damages.

The Court of Appeal dismissed the appeal, finding the limitation clause did not apply to the landlord's arbitrary repudiation and trespass, and upheld the permanent injunction as an appropriate remedy to protect the tenant's property rights.

The appellant, Korea Data Systems (USA), Inc., was successful on a complex motion heard by the Court of Appeal for Ontario.

The court awarded the appellant costs fixed at $25,000, inclusive of disbursements and taxes, to be paid jointly by the Trustee and Christina Chiang.