Matthew R. Harris

Erich Genseberger moved to annul the bankruptcy of Kate Alexander under s. 181(1) of the Bankruptcy and Insolvency Act, alleging insolvency was not met or that the assignment was an abuse of process due to her conduct in ongoing family law proceedings and asset dissipation.

The Trustee and other creditors opposed, arguing the Debtor was insolvent at the time of assignment and her past conduct, while problematic, did not constitute an abuse of process for annulment purposes.

The court dismissed the motion, finding the Debtor was insolvent at the time of assignment and her conduct, while frustrating, did not meet the high bar for abuse of process required for annulment.

The family law stay was lifted to allow the equalization claim to proceed, and the matrimonial home was ordered to be sold by the Trustee for the benefit of all creditors.

The plaintiff was successful on an unopposed motion to amend the statement of claim to substitute the names of previously unidentified defendants.

The defendant Torrecampo opposed the motion without evidence of prejudice, leading to unnecessary cross-examinations and wasted time.

The court awarded the plaintiff partial indemnity costs of $9,000 plus HST and disbursements, finding the amount reasonable and proportionate under the Rules of Civil Procedure.

The appellant sought to set aside a Registrar's order dismissing her appeal for delay and to extend time to perfect the appeal.

The underlying appeal concerned a motion judge's decision to dismiss the appellant's action via reverse summary judgment, which sought to set aside a property transfer under power of sale due to alleged fraud and conspiracy.

The Court of Appeal granted the appellant's request, finding that despite some delay, she maintained an intention to appeal and had arguable grounds, particularly regarding the motion judge's assessment of "badges of fraud" in the context of a power of sale and the chargee's duties.

The court also clarified that a writ of possession requires a pre-existing order for possession, which the purchaser lacked.

The plaintiff brought a motion for summary judgment against the corporate defendant and its director for repayment of two loans and associated fees.

The court found that the fees charged on the loans amounted to effective interest rates of 150% and 180%, which exceeded the criminal rate of interest under the Criminal Code.

The court set aside the fees under the Unconscionable Transactions Relief Act but granted summary judgment for the principal amount of the loans.

The court also found the director personally liable as a guarantor, as she signed the promissory note without indicating she was signing solely in a corporate capacity.

The claimant and the bankrupt appealed two decisions of the Registrar in Bankruptcy that refused to extend the time for the claimant to appeal the Trustee's Notice of Disallowance of her claim to a beneficial interest in a property, and subsequently granted the Trustee's motion to sell the property.

The Superior Court found that the bankrupt had standing to appeal.

The Court held that the Registrar made palpable and overriding errors of fact in applying the test for an extension of time, specifically by ignoring evidence that the claimant formed an intention to appeal within the prescribed time and had a reasonable explanation for the delay.

The appeals were allowed, the Registrar's decisions were set aside, and the time to appeal the disallowance was extended.

The appellants, Amaryco Inc. and Fabrizio Lucchese, appealed a judgment obtained by the respondent, US Income Partners LLC, based on a consent to judgment in a settlement agreement.

The appellants defaulted on the agreement and argued the consent was ineffective because the statement of claim had not been issued prior to the consent.

The Court of Appeal dismissed the appeal, finding that the motion judge's reliance on Rule 1.04 of the Rules of Civil Procedure was appropriate as there was no prejudice to the appellants, and upholding the principle of substance over form.

The trustee in bankruptcy brought a motion to annul the bankrupt's discharge and vest the shares of a corporation in the estate as after-acquired property.

The bankrupt claimed his wife had owned the shares since incorporation.

The court found the bankrupt owned the shares while undischarged, noting he had admitted ownership in another proceeding and had fabricated corporate records and tax returns to support his wife's claim.

The court annulled the discharge, vested the shares in the trustee, and awarded substantial indemnity costs jointly and severally against the bankrupt and his wife.

The Trustee in Bankruptcy brought a motion for the partition and sale of a property in which the bankrupt allegedly held a 20% interest as a tenant in common with his mother.

The bankrupt and his mother claimed the 20% interest was a gift intended to pass only upon her death and was not an asset of the estate.

The court rejected this argument, finding the bankrupt held a 20% interest that vested in the Trustee.

Finding no malice or oppression by the Trustee, the court ordered the sale of the property, stayed for three months to allow the parties to resolve the matter.

The moving party defendant sought summary judgment to dismiss the plaintiff's claims of fraudulent conveyance and conspiracy.

The plaintiff alleged her former husband fraudulently conveyed shares in a company holding real property to his brother (the moving party) to defeat her family law judgment.

The court dismissed the motion, finding genuine issues requiring a trial, particularly regarding the relationships among the defendants, credibility, and whether the ten-year limitation period under the Real Property Limitations Act applied to the fraudulent conveyance claim.

The plaintiff law firm moved for leave nunc pro tunc to commence an action for unpaid fees after the defendant clients had already initiated an assessment of the accounts under the Solicitors Act.

The plaintiff argued the case was not ripe for assessment because the clients disputed the retainer.

The court denied leave, emphasizing the legislative policy that fee disputes should be diverted to the speedy and inexpensive assessment process, and held that pandemic-related delays in the Assessment Office do not justify bypassing this statutory framework.

The plaintiff brought a motion for summary judgment regarding a Lease and General Security Agreement for nutraceutical manufacturing equipment.

The defendants defaulted on payments, leading to the repossession of most of the equipment.

The court found no genuine issue requiring a trial, rejecting the defendants' claim that a subsequent settlement agreement altered the lease terms, as no payments were made under the alleged settlement.

Summary judgment was granted against all defendants for the outstanding balance, less the amount recovered from the sale of the repossessed equipment, and an order was made for the delivery of the remaining unrecovered equipment.

This decision addresses the costs arising from a motion for court approval of a consumer proposal, necessitated by a creditor's objection.

The Administrator of Ocean Dezarie Bonneau's consumer proposal sought costs against Brenden Higgins, a creditor, after Higgins' extensive objections, including allegations of non-disclosure and fraud, were largely rejected by the court and the Office of the Superintendent of Bankruptcy.

The court found Higgins' actions caused the proceedings to become unduly protracted and that his objection was illogical, as a bankruptcy would have resulted in a lower dividend for creditors.

The Administrator was successful in obtaining approval of the proposal.

The court awarded partial indemnity costs to the Administrator, assessing them at $2,200, inclusive of disbursements and HST, payable by Higgins within 200 days, with an extended payment period granted due to his reduced income.

A motion was brought by the consumer proposal administrator to review Ocean Dezarie Bonneau's consumer proposal, which was deemed accepted by creditors.

A creditor, Brenden Higgins, demanded the review and opposed approval, raising concerns about non-disclosure of assets, post-filing debt, family unit income, and alleged fraudulent activity and BIA offences.

The court found that while some issues, like the purchase of a luxury vehicle post-filing, had poor optics, they did not disentitle the debtor from the proposal.

The court also clarified the family unit composition and dismissed allegations of BIA offences and fraud, noting fraud claims must be pursued in separate civil proceedings.

Ultimately, the court approved the consumer proposal, finding it provided a superior return to unsecured creditors compared to bankruptcy.

The defendant Bang Chen moved to set aside a default judgment, prohibit the sale of two mortgaged properties (5 Upperview Place and 51 Dempster Street), set aside writs of possession, and stay the action.

The court dismissed the motion to prohibit the sale of 5 Upperview Place, finding the power of sale properly exercised despite claims of improper renewal, deficient redemption period, improper service, and incorrect amounts.

However, the court found the three-month interest penalty improper.

While the default judgment was not set aside due to lack of a defence on the merits, its enforcement was stayed for 51 Dempster Street, and possession of that property was restored to the defendants, pending an accounting of the amounts owed.

The moving party sought a declaration that the bankrupt's debt to it, arising from a US judgment for trademark infringement enforced in Ontario, not be released upon his discharge from bankruptcy.

The court found that the bankrupt had obtained property by false pretences by selling counterfeit goods on Amazon.

Applying section 178(1)(e) of the Bankruptcy and Insolvency Act, the court held that the debt survives the bankruptcy discharge, rejecting the bankrupt's public policy arguments regarding the quantum of statutory damages.

Following a guardianship trial where success was divided, the applicants sought full indemnity costs of the proceeding and costs of three interlocutory motions.

The court found that while the applicants were more successful than the respondents, their insistence on unworkable care plans and the parties' mutual animosity unduly lengthened the proceeding.

The court denied enhanced costs and costs of the interlocutory motions, awarding the applicants partial indemnity costs fixed at $56,760.72.

An appeal concerning the appointment of guardians for a 90-year-old mother's property and personal care.

David and Edward Carey, who were originally applicants, withdrew their support for the applicants' position and sought to be appointed as appellants.

The motion judge had previously removed them as applicants without making them respondents.

The appellate court dismissed the appeal, finding no error in the motion judge's decision to appoint guardians in the best interests of the mother.

The court ordered David and Edward Carey to pay costs of $5,000 to the respondents.

This final judgment addresses the ongoing dispute among Jennie Carey's adult children regarding her guardianship for personal care and property.

Jennie, 91 and suffering from dementia, was found incapable of making her own decisions.

The court's interim decision had appointed Robert and Arthur as co-guardians for personal care, and Robert, Arthur, and Edward as co-guardians for property.

However, due to severe animosity and unilateral actions by both Robert and Arthur, the co-guardians were unable to cooperate.

The court found Arthur's financial conduct inexcusable and Robert's unilateral care plans not in Jennie's best interest.

Consequently, the court restructured the guardianship: Robert Carey was appointed sole guardian for Jennie's property, while Arthur Carey and Edward Carey were appointed co-guardians for Jennie's personal care.

The decision emphasizes the need for guardians to prioritize the incapable person's best interests over personal conflicts.

The respondents moved to quash an appeal on the grounds that the order appealed from was interlocutory.

The underlying Superior Court application involved a family dispute concerning the care of a 91-year-old woman with dementia.

Following a five-day trial, the trial judge made orders regarding her physical and financial care and adjourned the balance of the trial, reserving the right to make final determinations if the parties could not agree.

The Court of Appeal held that the order was interlocutory because it did not determine the subject matter of the litigation, which remained outstanding.

The appeal was quashed with costs awarded to the respondents.

Third World Broadcasting Inc. (Plaintiff) sued Pakistan International Airlines (Defendant) for breach of contract or quantum meruit, seeking payment for advertising services provided from 2013-2016 after their last written contract expired in 2012.

PIA brought a motion for summary judgment, arguing the claim was without merit.

The court granted PIA's motion, finding no contract existed after 2012 and that Third World failed to prove its claim in contract or quantum meruit, as the services were provided gratuitously and speculatively, not at PIA's request or with its acquiescence.

PIA's counterclaim for defamation was abandoned and dismissed without costs.