Martin Zvi Black

The Third Party, RE/MAX Ontario-Atlantic Canada Inc. o/a RE/MAX Integra, brought a motion to strike portions of the Amended Third Party Claim filed by the Defendant, RE/MAX Core Realty Inc. The claims sought to be struck included allegations of unfair business practices, breaches of common law duties of fair dealing and good faith, breaches of the Arthur Wishart Act, and intentional interference with economic relations.

The court struck the claims for unfair business practices (by consent) and intentional interference with economic relations (without leave to amend).

The claims for breaches of common law and statutory duties of good faith were struck but with leave for the Defendant to amend its pleading to include necessary material facts linking the allegations to the Franchise Agreement.

The court also clarified that allegations regarding a disciplinary matter could be included as particulars for the good faith claims, provided they were properly tied to the Franchise Agreement.

The bankrupt, Raymond Henry Lalonde, sought discharge from bankruptcy.

Jevco Insurance Company, an unsecured creditor, opposed the discharge on two grounds under the Bankruptcy and Insolvency Act: assets not equaling $0.50 on the dollar of unsecured liabilities (s. 173(1)(a)), and putting creditors to unnecessary expense by a frivolous or vexatious defence (s. 173(1)(f)).

The court found the s. 173(1)(a) ground was met, as the bankrupt's assets were significantly less than 50% of liabilities, and he was responsible for signing the indemnity.

The court did not find the s. 173(1)(f) ground met regarding a frivolous defence, as the statement of defence was not in evidence.

However, the court found the bankrupt's conduct in filing false Articles of Dissolution for a corporation, stating no proceedings were pending, to be dishonest.

Balancing the interests of the bankrupt and creditors, and considering the dishonesty, the court granted a conditional discharge, requiring an additional payment of $6,000 to the Trustee for the benefit of creditors, in addition to the $50,000 for equity repurchase.

The applicant sought to prove a lost will where the original could not be found after the testator's death.

The next-of-kin respondents argued that the presumption of intentional destruction by the testator had not been rebutted, which would result in an intestacy.

The court reviewed the testator's organized nature, her consistent statements affirming the sole beneficiary, and her understanding of the consequences of intestacy.

The court found sufficient evidence to rebut the presumption of revocation and admitted a copy of the will to probate.

The appellants appealed an order declaring a family trust invalid and vesting its assets in the respondent Trustee in Bankruptcy.

The respondent moved to dismiss the appeals, and the alleged trustee of the trust brought a cross-motion.

The Court of Appeal found significant irregularities regarding the notice provided for the original hearing, noting that the hearing proceeded in the absence of the undischarged bankrupt and any representative of the trust.

The court set aside the original order and remitted the matter for a new hearing in the Superior Court of Justice to ensure procedural fairness.

The plaintiff corporation brought a motion for summary judgment to enforce a mortgage against the defendant corporation.

The dispute involved two brothers, one acting as the plaintiff's director under a power of attorney from their father, and the other as the sole shareholder of the defendant.

The defendant argued that an oral agreement precluded enforcement and that the father lacked capacity to grant the power of attorney authorizing the action.

The court rejected the oral agreement defence based on the Statute of Frauds and the parol evidence rule.

However, finding a genuine issue regarding the father's capacity, the court stayed the motion for 30 days to allow the defendant's principal to commence proceedings under the Substitute Decisions Act to challenge the power of attorney.

The plaintiffs discontinued their main action, and the defendants subsequently abandoned their counterclaim and third party claim.

The defendants brought a motion for costs of the main action, arguing the plaintiffs' claim was devoid of merit and that the counterclaim and third party claim were a natural consequence.

The court found the main action was not self-evidently frivolous and held that each party should be entitled to recover the costs of defending the proceeding launched against them on a partial indemnity scale.

The calculation of costs was referred for assessment.

Following the dismissal of the Estate's appeal of the Receiver's disallowance of its proof of claim, the successful parties sought costs.

The court awarded costs to the Receiver on a substantial indemnity scale and to the Applicants on a partial indemnity scale.

The court also held the trustee of the Estate personally liable for the costs award, jointly and severally with the Estate, as the trustee initiated the unsuccessful appeal and there was no evidence of estate assets to satisfy the award.

In bankruptcy proceedings concerning the estate of the bankrupt, the court considered two motions: a trustee motion to approve the sale of the estate’s one‑half interest in a residential property to a secured claimant for $25,000, and a creditor’s motion alleging fraud, seeking annulment of the bankruptcy, sanctions against the trustee, and authorization for criminal prosecution under the Bankruptcy and Insolvency Act.

The court approved the trustee’s proposed sale, finding the offer commercially reasonable given uncertainty in valuation, litigation risk, and potential costs of partition and sale.

The creditor’s extensive allegations of fraud and misconduct were rejected due to lack of cogent evidence and the court declined to authorize prosecution under s. 205(3) of the Act.

The request to annul the bankruptcy under s. 181 was also dismissed due to delay and insufficient grounds.

The court held that the trustee had acted reasonably in administering the estate and dismissed all claims against it.

The applicant sought court assistance to compel financial disclosure from corporations associated with the respondent within the context of a family law arbitration.

The arbitrator had previously ordered disclosure but concluded the respondent had not fully complied and lacked jurisdiction to compel production from non-party corporations.

The court ordered the respondents to produce the information listed in an exhibit and required the applicant to execute a confidentiality agreement covering all disclosed materials.

The court upheld the arbitrator’s direction that the respondent bear the costs of locating and compiling disclosure while the applicant would pay photocopying at the Legal Aid rate.

The applicant was found substantially successful and awarded partial costs of the motion.

A construction company brought a motion for summary judgment seeking damages after its employee fraudulently forged company cheques and deposited them into a third party’s bank account.

The employee forged signatures on twelve cheques and deposited them into the cohabiting partner’s account, from which most funds were withdrawn.

The court held that the tort of conversion is one of strict liability and that depositing funds belonging to another into an account without legal entitlement constitutes conversion, regardless of the account holder’s innocence or lack of knowledge of the fraud.

Summary judgment was granted against both the employee and the account holder for the remaining loss.

The court also declared that the employee’s liability arose from fraud and misappropriation while acting in a fiduciary capacity and would not be released in bankruptcy.

An employee of the respondent defrauded the company by preparing cheques payable to a variation of a legitimate supplier's name and depositing them into his own account at the appellant bank.

The trial judge found the appellant bank liable for conversion and ordered it to pay damages.

On appeal, the appellant argued that conversion requires blameworthy conduct, and raised defences under the Bills of Exchange Act, including the fictitious payee and holder in due course defences.

The Court of Appeal dismissed the appeal, affirming that conversion is a tort of strict liability and that the statutory defences did not apply because the drawer intended to pay a legitimate debt and the cheques were not delivered by an authorized party.

The debtor filed an assignment in bankruptcy while owning a motor vehicle subject to an unperfected conditional sales contract held by the appellant.

The appellant filed a proof of claim for the balance owing, which the trustee disallowed as a secured claim but allowed as an unsecured claim.

The appellant appealed, arguing it was entitled to priority over the trustee for the first $5,000 of the vehicle's value under the motor vehicle exemption in s. 2.6 of the Execution Act.

The Court of Appeal dismissed the appeal, holding that the plain wording of s. 2.6 provides an exemption only for a motor vehicle not exceeding $5,000 in value, and does not exempt the first $5,000 of a vehicle worth more than that amount.

The appellant appealed a decision finding that a competing tender contained only minor irregularities that could be corrected within 48 hours under the municipal purchasing bylaw.

The Court of Appeal dismissed the appeal, finding no error in the motions judge's determination.

The cross-appeal was withdrawn, and costs were awarded to the respondent municipality.

The respondent employee resigned mid-year and successfully sued for a pro rata share of his non-discretionary profit-sharing bonus.

The appellant employer appealed, arguing that the bonus was calculated at year-end and no pro rata share should be implied.

The Court of Appeal dismissed the appeal, upholding the trial judge's finding that the profit-sharing plan was an integral, non-discretionary part of the compensation package and that there was no clear practice denying the bonus upon mid-year departure.