Michael A. Penny

The moving party landlord brought a motion within a receivership proceeding seeking an order for the court-appointed receiver to pay $319,016 in occupation rent for the use of a marina.

The court examined whether the receiver's actions, such as changing locks and keeping assets on site, constituted occupation that deprived the landlord of use.

The court found that the receiver did not occupy the premises in the sense necessary to attract liability, noting that the landlord was given a key, found a new tenant, and insisted that third-party boats remain on site.

The motion was dismissed.

The plaintiffs brought a motion under s. 69.4 of the Bankruptcy and Insolvency Act seeking declarations regarding the scope of the statutory stay following the bankruptcy of one defendant and requesting that the stay be lifted for certain claims.

The court held that claims for injunctive and declaratory relief and claims for monetary damages arising after the bankruptcy were not claims provable in bankruptcy and therefore were not subject to the stay under s. 69.3.

With respect to claims for pre-bankruptcy monetary damages, the court found that the test for lifting the stay was met because the allegations involved fraud and fiduciary breaches potentially falling within s. 178 and the action involved complex, multi-party claims requiring full civil procedure.

The bankrupt defendant was a central participant whose involvement was necessary for a complete adjudication.

The stay was lifted for pre-bankruptcy claims, although enforcement of any resulting monetary award remained stayed.

The applicants sought a declaration that they were entitled to supplementary pension benefits under the respondent's supplementary pension plan following a partial wind up of the registered pension plan.

The partial wind up triggered statutory 'grow in' benefits under the Pension Benefits Act, allowing the applicants to retire early with unreduced pensions.

The court interpreted the supplementary plan's formula, which explicitly excluded 'grow in' benefits from the calculation of the base pension amount.

The court found that when the 'grow in' benefits were excluded, the applicants' base pension amounts were less than the pension benefits they actually earned, resulting in no supplementary benefits being payable.

The application was dismissed, and the court declined to order costs payable from the pension fund.

The moving defendant sought to set aside an undefended trial judgment in a malicious prosecution action under Rule 52.01(3), asserting inadvertence, a viable defence, and lack of prejudice.

The court held that the defendant had actual or effective notice of the trial through repeated mailings and personal service, and that he deliberately chose not to open or respond to documents from opposing counsel.

The court rejected late-filed evidence intended to undermine personal service and gave little weight to a physician's note tendered to explain the defendant's psychological state.

Finding deliberate non-attendance, uncompensable prejudice, and an abuse of process, the court declined to exercise its discretion to set aside the judgment.

The parties separated in 1999 after a 17-year marriage.

Following the wife's death in 2011, her estate obtained a summary judgment order declaring that all property owned by either party at separation was co-owned equally and held in trust.

At trial to determine the equalization payment, the court rejected both experts' extreme interpretations of the summary judgment order.

The court found the order did not impose retroactive trust obligations that would penalize post-separation consumption or require compounding interest.

The court also determined that substantial bonuses paid to the husband by his company post-separation were remuneration for his active management services, not shareholder distributions, and thus were not subject to equal division.

After valuing the respective assets, the court ordered the husband to pay the estate an equalization payment of $7,932,647.50.

A judgment creditor brought a motion under s. 50.4(11) of the Bankruptcy and Insolvency Act to terminate the automatic 30‑day stay following the debtor’s notice of intention to make a proposal.

The debtor sought an extension of the stay under s. 50.4(9).

The court found the debtor failed to establish good faith, due diligence, or a likelihood of presenting a viable proposal, providing only vague assertions of possible negotiations while having no active business, revenue, or meaningful assets.

Given the absence of evidence of any realistic restructuring plan and the veto power of the principal creditor, the statutory requirements for an extension were not met.

The court dismissed the debtor’s motion for an extension and granted the creditor’s motion to terminate the stay.

A commercial tenant brought a motion under s. 37 of the Bankruptcy and Insolvency Act to reverse a bankruptcy trustee’s decision to disclaim a lease following the court-approved sale of the bankrupt landlord’s assets.

The purchaser had insisted that the trustee terminate the tenant’s lease as a condition of closing.

The court held that s. 30(1)(k) of the BIA does not authorize a trustee of a bankrupt landlord to disclaim a lease granted by the landlord; such termination rights are governed by provincial law.

Because the tenant was not in breach and provincial law provided no unilateral termination power, the trustee lacked authority to issue the termination notice.

The notice was declared void and the lease remained in force.

The applicants sought declarations under s. 248 of the Ontario Business Corporations Act that the moving party beneficially owned 50% of the shares of a corporation formed in connection with a logistics business restructuring and that a shareholder loan of approximately $2.8 million was owed.

The respondents denied that any binding agreement or partnership existed and asserted that payments made were loans.

The court found overwhelming objective evidence that the parties had agreed to a 50/50 partnership and share ownership arrangement, including communications, conduct toward third parties, and treatment of a $3.5 million invoice representing the value of services contributed to the restructuring.

The court concluded that the respondent’s subsequent exclusion of the applicant from corporate management was oppressive.

As a remedy, the court ordered a buyout of the applicant’s 50% interest at fair value to be determined through an independent valuation process and confirmed the existence of the shareholder loan.

In supplementary reasons following a family law trial, the court addressed outstanding issues regarding a certificate of pending litigation (CPL), the tax treatment of a spousal support lump sum, and costs.

The court ordered the CPL discharged to allow the respondent to refinance a property to pay the equalization payment.

The court also reduced the lump sum spousal support award to make it tax neutral.

Finally, the court found the applicant to be the substantially successful party and awarded him costs for disbursements and out-of-pocket legal fees, but denied his claim for compensation for his time spent as a self-represented litigant.

The appellant mother appealed an Ontario Court of Justice order making the child a Crown ward without access.

She argued the children’s aid society failed to fulfill its statutory duty under the Child and Family Services Act to provide guidance, counselling, and other services to assist the family, and that the trial judge erred in declining to extend the period of society wardship.

The court held there was ample evidence supporting the trial judge’s findings that the mother’s repeated involvement in violent domestic relationships and inability to regulate anger posed ongoing risks to the child.

Although the society could have communicated better in some respects, the record showed that many attempts to provide services were refused or frustrated by the mother’s conduct.

The appellate court found no palpable and overriding error and concluded an extension of society wardship would not have been appropriate in any event.

The parties separated after a nine-year marriage during which they both worked at a motel owned by the respondent.

The applicant sought equalization of net family property and spousal support.

The court determined the date of separation value of the motel and the integrated matrimonial home, rejecting the applicant's claims for occupation rent and cottage carrying costs.

The court ordered the respondent to pay an equalization payment of $659,833.64.

The court also found the applicant entitled to compensatory spousal support due to economic disadvantage from the marriage breakdown, awarding a lump sum of $44,412 based on the Spousal Support Advisory Guidelines.

The parties sought clarification on the settlement of an order following a judgment declaring a bulk sale void for non-compliance with the Bulk Sales Act.

The applicant trustee argued that the respondent purchaser's liability to account for the 'value of the stock in bulk' under s. 16(2) of the Act included the HST paid on the transaction.

The court applied the modern principle of statutory interpretation and held that the plain and ordinary meaning of 'value of the stock in bulk' does not include value-added taxes like HST.

The respondent's maximum liability was therefore capped at the purchase price excluding HST, less amounts paid to secured creditors.

In this costs endorsement following a summary judgment ruling on liability in a software licence and copyright dispute, the plaintiffs sought partial indemnity costs of both the motion and the action to date.

The court held it was premature to award costs of the motion because the action had been bifurcated by the plaintiffs and the defendant had an outstanding monetary offer to settle the entire action, engaging the potential costs consequences of Rule 49.10(2).

The court declined to award action costs at this stage and deferred entitlement to motion costs until after the damages trial.

It nevertheless fixed the plaintiffs' partial indemnity costs of the summary judgment motion at $280,000 inclusive, should those costs later be awarded.

On a motion for interim spousal support arising from a lengthy unmarried cohabitation, the court found a prima facie case that the claimant was a spouse within the meaning of the Family Law Act and had entitlement to support.

The court held that interim support could rest on both a compensatory element and, more importantly, a non-compensatory needs basis measured against the parties' highly extravagant lifestyle and the payor's substantial means.

The court further held that support should presumptively commence when notice of the claim was given and ordered retroactive interim support from April 26, 2012.

After considering gross-up principles under the Child Support Guidelines and the discretionary use of the SSAG in a high-income case, the court fixed interim support at $25,000 per month until trial.

The applicant sought declaratory relief that its contractual option to acquire up to a 20 percent interest in an LNG terminal project remained valid despite the project's evolution from an import facility to an export facility.

Applying orthodox contractual interpretation principles, the court held the project had evolved but had not become a brand-new project, and the option therefore continued to attach to the existing development.

The court further implied a term requiring disclosure of sufficient financial information to permit the applicant to determine the value of the option and verify the exercise price, holding that such disclosure was necessary for business efficacy and consistent with the organizing principle of good faith in contractual performance.

The disclosure was made subject to confidentiality protections to be negotiated by the parties.

On a family law motion arising from pending claims for spousal support and equalization, the moving party sought leave to call an appraiser originally retained by the opposing party and to rely on his valuation reports at trial.

The court held there is no property in an expert witness as to facts observed and independent opinions, subject to protection for any privileged communications or counsel work product.

The appraisal report's limiting conditions and professional appraisal standards were interpreted as protecting the appraiser from third-party liability, not as giving the retaining party an exclusive right to the witness's testimony.

Objections going to the quality and reliability of the report were found premature and left to qualification, admissibility, and weight at trial.

On a summary judgment motion in a software licensing dispute, the court interpreted a licence agreement governing enterprise use of document conversion software.

The court held that the agreement did not impose a one-server-per-licence restriction, but it did restrict use to the AIX platform and to association with IBM's CMOD database.

The moving parties obtained declarations that use outside those limits breached the licence and infringed copyright under the Copyright Act.

Estoppel and limitation defences based on technical support knowledge did not raise a genuine issue requiring a trial on liability.

Damages were directed to a trial rather than a reference.

Non-party insured lawyers moved under Rule 37.14(1) to set aside or vary an earlier order permitting garnishment of the professional liability policy of a lawyer and law firm, where the prior order effectively exhausted the policy limits.

The court held the moving parties were persons affected by the earlier order and had failed to appear because they were not served and did not receive adequate, meaningful notice.

On the merits, however, the court rejected the new coverage and priority arguments, holding the underlying orders requiring payment of client trust funds engaged the policy and supported garnishment.

The motion was dismissed, and no costs were awarded because all sides bore some responsibility for the duplicative proceedings.

On an application for an initial order under the Companies’ Creditors Arrangement Act, the court considered whether an insolvent group of residential development companies should obtain CCAA protection, including a stay, monitor appointment, DIP financing, and priority charges.

A secured creditor opposed inclusion of one raw-land project and sought instead to realize through a receiver.

The court held that, on the specific facts, the prejudice to that secured creditor was not materially greater in a CCAA claims process than in a receivership, particularly given the undertaking to pay out the first mortgage in the amount ultimately determined by the court.

The initial order was granted, including the stay, monitor appointment, DIP facility, and administrative and directors’ charges.

The applicant sought a bankruptcy order against the respondent arising from an admitted unpaid debt under a software distribution arrangement.

The respondent relied on a proposed but unissued counterclaim as a basis to deny effective indebtedness and resist bankruptcy.

The court held that the debt was liquidated and admitted, that special circumstances permitted a finding of an act of bankruptcy based on non-payment to the disclosed creditor, and that the proposed litigation was vague, unsupported, and appeared intended to hinder enforcement.

A bankruptcy order was granted and costs were awarded to the applicant.