Mark A. Freake

The plaintiff sought to appeal a costs order arising from a fraudulent conveyance action.

The motion judge had ordered the plaintiff to pay the defendant's costs and refused to allow a set-off for the amount the defendant owed the plaintiff.

The defendant argued leave to appeal was required under s. 133(b) of the Courts of Justice Act.

The Court of Appeal held that leave was not required because the refusal of a set-off had a substantive effect on the plaintiff's legal rights, extending beyond mere entitlement to and quantum of costs.

The court also declined to order security for costs and directed that the costs appeal be heard with the main appeal.

The trustee in bankruptcy appealed a registrar’s decision holding that a trustee’s report filed in response to an appeal from the disallowance of a proof of claim was inadmissible and that evidence had to be provided by sworn affidavit.

The court held that the registrar erred in principle and law by interpreting the Rules of Civil Procedure as requiring affidavit evidence exclusively and by failing to follow binding authority recognizing the admissibility of reports from court officers such as trustees, receivers, and monitors.

The court confirmed that trustee reports are routinely accepted as evidence in insolvency proceedings under common law principles and are not barred by the Rules of Civil Procedure.

The appeal was allowed and the matter was directed to be reheard before a different registrar.

Following the dismissal of appeals and motions for leave to appeal regarding the appointment of a trustee for an inter vivos trust, the successful parties sought their costs.

The Court of Appeal determined that the normal loser-pays regime applied to the appeals, rather than costs being paid out of the estate, as the uncertainty regarding the trust's administration had been resolved by the application judge.

The court awarded partial indemnity costs to the successful beneficiaries and full indemnity costs to the trustee, payable jointly and severally by the appellants.

Following a fraudulent conveyance trial in which allegations of conspiracy and damages against a defendant were rejected, the successful defendant sought substantial indemnity costs.

Although the court had found the defendant assisted in attempts to hinder collection efforts, it declined to impose damages and granted no substantive relief against her.

The court held that her status as a contemnor did not bar a costs award, particularly given that the plaintiffs had pursued duplicative litigation contrary to earlier representations and had failed to prove damages.

Substantial indemnity costs were warranted due to unproven allegations of fraud and the breach of a prior representation to the court.

Costs of $665,990.96 were awarded jointly and severally against the opposing parties, with a solicitor’s lien recognized under the Bankruptcy and Insolvency Act.

The defendants, previously found in contempt of multiple court orders relating to bankruptcy and asset disclosure, sought an order requiring broad disclosure of documents from the plaintiffs for an upcoming contempt sanction hearing.

The court considered privilege claims over numerous documents, including solicitor‑client communications, settlement communications, and materials arising from joint retainers.

The court held that several documents were not protected or that privilege was displaced by competing public interests, including the integrity of ex parte orders and prior incarceration resulting from the proceedings.

Evidence suggesting potential fraud by related corporate actors and possible nondisclosure in earlier applications justified expanded disclosure.

The court ordered production of specified materials and directed that the corporate plaintiff produce all further relevant documents subject to a privilege schedule.

The Children's Lawyer and other appellants appealed a decision dismissing their application to appoint an independent trustee for an inter vivos spousal trust.

The appellants alleged that the respondents, who were directors of the corporation wholly owned by the trust, committed a breach of trust by declaring dividends in excess of net income.

The Court of Appeal dismissed the appeal, finding that the respondents' actions as directors were governed by the Business Corporations Act, not the trust agreement, and did not constitute a breach of trust.

The court also dismissed an application to admit fresh evidence and upheld the application judge's order that costs be paid out of the estate.

Following extensive trial reasons in complex bankruptcy and fraud proceedings, the court issued a second case conference memorandum addressing outstanding procedural and remedial issues.

The court directed that issues concerning damages recoverable by a creditor, tracing relief, and costs orders against certain defendants be scheduled before the associate chief justice who presided over related contempt proceedings.

The memorandum also clarified that a previously ordered constructive trust over the bankrupt’s property should be incorporated into the final order without further submissions.

The court established a timetable for written submissions on post‑judgment interest relating to an earlier judgment and on the terms of a Mareva injunction in aid of execution.

The decision functioned primarily as case management to finalize remaining issues in the litigation.

The case management judge issued directions regarding the scheduling and sequencing of outstanding issues in a complex bankruptcy proceeding.

The court ordered written submissions for issues concerning the disclosure of the Trustee's report and the release of funds, while deferring other matters, including examinations and discharge hearings, until the trial judge releases supplementary reasons and determines contempt sentencing.

A creditor brought a motion under s. 38 of the Bankruptcy and Insolvency Act seeking authorization to continue foreign enforcement proceedings after the trustee refused to proceed.

The proceedings in Taiwan sought recognition and enforcement of Ontario contempt costs orders against property owned by a defendant abroad.

The trustee opposed the motion, arguing the claims lacked merit, raised potential set‑off issues, and conflicted with settlements and releases.

The court held the creditor met the threshold under s. 38 because the costs orders remained outstanding and the proposed claim was not spurious.

Leave was granted permitting the creditor to continue the Taiwan proceeding at its own expense with assignment of the trustee’s interest for that limited purpose.

In a bankruptcy proceeding on the Commercial List, counsel alerted the court that its earlier endorsement had not addressed a specific tab in the Brief of Privileged Documents.

The court considered whether the materials contained in that tab were privileged.

Because the tab excerpted material from a settlement conference brief previously held to be privileged, the court confirmed that the tab itself was also privileged.

The endorsement was corrected by way of corrigendum to reflect that determination.

A motion arose in bankruptcy litigation concerning whether portions of a trustee’s report disclosed privileged communications from a prior joint retainer between the trustee and a creditor.

The creditor argued the materials were protected by solicitor‑client privilege, settlement privilege, and common interest privilege and sought to prevent their disclosure.

The court held that, in a dispute between former joint clients over removal of counsel, solicitor‑client privilege does not apply between the clients themselves, allowing the full record to be considered on that motion.

However, for the trustee’s broader motion for advice and directions involving third parties, several documents remained privileged because privilege jointly held by co‑clients cannot be unilaterally waived.

The court therefore ordered certain materials sealed for the removal motion but redacted from the public record for other proceedings.