Miranda Spence

The applicant, Zeifman Partners Inc., sought declarations that payments made by a now-bankrupt company (Discovery Electric Ontario Limited) to its principal's family and a related company (Tuscany Lighting and Furniture Ltd.) were transfers at undervalue, and payments to a third-party supplier (Boz Electric Supply Ltd.) were preferential.

The court found the payments to the Baldassare family members and Tuscany were void under s. 96(1)(b) of the Bankruptcy and Insolvency Act (BIA), and the principal, Sam Baldassare, was held personally liable for these amounts.

The court dismissed the claim against Boz Electric Supply Ltd., finding those payments were made in the ordinary course of business, thereby rebutting the presumption of preference under s. 95(2) of the BIA.

A limitation period defence raised by all respondents was rejected, as the initiation of a Preference Motion was deemed the commencement of proceedings for the purposes of the Limitations Act, 2002.

This decision addresses the costs arising from a decade-long, four-action litigation where Romandale Farms Limited was the successful party.

Romandale sought substantial indemnity costs against Fram and Kerbel (and their associated entities).

The court found that Fram and Kerbel's conduct throughout the litigation was "reprehensible and deserving of sanction" including pursuing meritless claims for tactical reasons, making disingenuous arguments, and principals giving false evidence.

The court awarded Romandale substantial indemnity costs of $2,708,651.57, inclusive of fees and disbursements, payable jointly and severally by Fram and Kerbel, finding the amount fair and reasonable given the complexity, stakes, and the losing parties' conduct.

The appellant appealed an order regarding cross-examination on his affidavit in a bankruptcy proceeding.

The respondent confirmed it would not attempt to cross-examine the appellant before the disposition of the bankruptcy trial, rendering the appeal moot.

The Court of Appeal declined to exercise its discretion to hear the moot appeal and dismissed it, awarding costs to the respondent.

The applicants, Spacebridge Inc. and David Gelerman, sought an order allowing Gelerman to complete his term as a director of Baylin Technologies Inc. and for the release of share certificates held in trust.

Baylin and 2385796 Ontario Inc. brought a cross-application seeking a declaration that Gelerman breached Baylin’s Majority Voting Policy and an order for his resignation.

The court found Baylin’s Majority Voting Policy to be oppressive, unfairly prejudicial, and in unfair disregard of the applicants' reasonable expectations, as it deviated materially from TSX requirements and was designed to remove Gelerman.

The court also found that Baylin was not entitled to set-off the share certificates against indemnity claims, as the shares had already been "paid" by delivery to the trustee.

The application was allowed, setting aside Baylin's policy and ordering the release of shares, and the cross-application was dismissed.

An appeal concerning the interpretation of a will provision granting an employee an option to purchase the testator's auto supply company.

The application judge determined the purchase price to be $529,611 (calculated using the formula in the will with adjustments for salary normalization and deductions for improperly made support payments), and dispensed with the requirement for a collateral mortgage against the employee's residence.

The Court of Appeal upheld the application judge's decision, finding no error in treating the employee as a potential purchaser rather than a beneficiary, in dispensing with the collateral mortgage requirement, in accepting the employee's expert valuation for salary purposes, and in deducting the support payments from the purchase price.

The moving parties, a company and its CEO, commenced a private prosecution against a court-appointed receiver under the Environmental Protection Act, alleging the receiver stored excess organic waste.

The receiver brought a motion to stay the prosecution, arguing the moving parties failed to obtain leave of the court as required by the receivership order and that the prosecution was an abuse of process.

The Superior Court of Justice held that a private prosecution is a 'proceeding' requiring leave under the receivership order.

The court refused to grant leave and stayed the prosecution, finding it was an abuse of process because the moving parties were attempting to relitigate the exact same allegations that had previously been dismissed by the Superior Court and the Court of Appeal in a prior motion for leave to sue the receiver.

Multiple actions arising from a complex land development dispute involving co-ownership agreements for two farm properties in Markham.

Fram alleged Romandale breached the co-ownership agreements by entering into a conditional agreement to sell its interest to Kerbel.

Kerbel later entered into a settlement agreement with Fram to delay the closing of its purchase from Romandale for decades.

The court found that Romandale did not breach the co-ownership agreements.

Furthermore, the court held that Kerbel repudiated its agreement with Romandale by entering into the settlement agreement with Fram, which fundamentally altered the timeline for closing.

All claims by Fram and Kerbel against Romandale were dismissed, and Romandale was granted a declaration that its agreement with Kerbel was at an end.

A motion to set aside orders of a chambers judge denying leave to appeal.

The core issue was whether an appeal from a decision denying leave to sue a court-appointed receiver is governed by the Bankruptcy and Insolvency Act (BIA) or the Courts of Justice Act (CJA).

The receiver was appointed under both statutes.

The applicant argued that since the leave to sue provision could be grounded in provincial law under the CJA, the appeal should follow the CJA route, which permits appeals as of right within 30 days.

The respondent argued that the BIA governs because the receivership proceedings are BIA proceedings and the appeal provisions are in operational conflict.

The court held that the BIA governs the appeal route because the leave to sue provision is authorized by the BIA through necessary implication of section 243(1), and federal paramountcy applies to the conflicting appeal provisions.

The debtor brought a motion seeking to prohibit the Royal Bank of Canada (RBC) from cross-examining him on an affidavit filed in a Certificate of Pending Litigation (CPL) motion.

The CPL motion was part of a civil action related to an alleged fraudulent conveyance, which also formed the basis of RBC's bankruptcy application against the debtor.

The court granted the debtor's motion, affirming the `Re Debtor` principle that a petitioning creditor cannot compel evidence from a debtor to prove a disputed bankruptcy application.

The court held that civil procedure rules allowing cross-examination cannot be used to indirectly circumvent substantive bankruptcy law, especially when the debtor disputes the debt and alleged acts of bankruptcy.

A non-party to an application sought to transfer the proceeding and a related garnishment hearing from Kitchener to Toronto under Rule 13.1.02.

The court dismissed the motion, finding that the moving party was not a party to the application, the application had already been finally disposed of, and a garnishment hearing is a motion rather than a 'proceeding' subject to transfer under Rule 13.1.02.

The appellants appealed the disallowance of their claims in a bankruptcy proposal proceeding.

They claimed a 20% beneficial interest in the proceeds of a commercial property sale based on an amended trust declaration, and advanced an unsecured claim for damages alleging oppressive conduct.

The court dismissed the appeal, finding no certainty of intention to create an express trust, no basis for a constructive trust, and no evidence of oppressive conduct by the bankrupt corporation.

A priority dispute arose between Royal Bank of Canada (RBC), a secured creditor of bankrupt contractor A-1 Asphalt Maintenance Ltd., Guarantee Company of North America (GCNA), a bond company and secured creditor, and certain employees represented by unions.

The central issue was whether funds paid to the receiver by owners, which constituted "trust funds" under section 8 of the Construction Lien Act (CLA), were excluded from the bankrupt's estate available to creditors pursuant to section 67(1)(a) of the Bankruptcy and Insolvency Act (BIA).

The motion judge found the funds were not excluded and were available for distribution.

The Court of Appeal allowed the appeal, holding that provincially created statutory trusts satisfying general principles of trust law are preserved from distribution to ordinary creditors under the BIA.

The applicant sought to exercise an option under a secondary will to purchase the shares of the deceased's business.

The estate trustee and the applicant disputed the calculation of the purchase price based on an earnings formula, as well as the terms of the purchase.

The court determined the appropriate earnings calculation, rejected the estate trustee's attempt to impose unilateral conditions such as a spousal guarantee and restrictive covenants, and ordered that certain funds withdrawn by the estate be credited against the purchase price.

The applicant was granted 30 days to exercise the option at the determined price.

SusGlobal Energy Belleville Ltd. brought a motion to reopen a prior motion seeking leave to sue the receiver (BDO) for damages, and to introduce fresh evidence.

The court dismissed the motion, finding that SusGlobal failed to meet the test for introducing fresh evidence as the evidence was available at the original hearing and would not have changed the outcome.

The court also found no miscarriage of justice in refusing to relax the reasonable diligence rule.

The Second Mortgagees (Janodee Investments Ltd. and Meadowshire Investments Ltd.) brought a motion seeking an order for 1482241 Ontario Limited to pay an over-holding fee of $63,900, as stipulated in a second mortgage agreement.

The fee was triggered because the mortgage was not repaid or renewed by its maturity date. 1482241 Ontario Limited, which had filed a notice of intention to file a proposal under the Bankruptcy and Insolvency Act, argued that the fee constituted an interest penalty contrary to section 8 of the Interest Act.

The court, applying principles from Dunlop Pneumatic Tyre Co. v. New Garage & Motor Co., found the over-holding fee to be an unenforceable penalty.

The court reasoned that the fee was arbitrary, not a genuine pre-estimate of damage, and would overcompensate the Second Mortgagees while depleting assets available to other creditors.

Consequently, the motion was dismissed.

This decision addresses four motions in consolidated construction lien actions.

Lien claimants Vestacon Limited and Plan Group Inc. sought to validate their liens against properties owned by 1302207 Ontario Limited (Peter Co.) and 364 Richmond Street West Inc. (Richmond Co.), following the bankruptcy of the tenant, Arc Productions Ltd. The court declared all three Certificates of Substantial Performance (CSPs) invalid due to premature issuance and insufficient property descriptions.

Consequently, Vestacon's lien was found to be timely, having been registered within 45 days of contract completion.

The court also affirmed the validity of Vestacon's Section 19 notices to the landlords, establishing their liability.

Furthermore, Vestacon's lien was extended to include the 364 Richmond Street West property, and leave was granted to add Richmond Co. as a defendant.

For Plan Group's lien, while the CSPs were invalid, a genuine issue for trial was found regarding the exact date of last supply, leading to the dismissal of the owners' motion to declare Plan Group's lien expired.

The moving party, Arden Holdings Inc., acquired the bankrupt's commercial lease pursuant to an assignment order under s. 84.1 of the Bankruptcy and Insolvency Act.

The lease contained a co-tenancy provision granting a rent reduction that was expressly stated to apply only so long as the bankrupt was the tenant.

The landlord argued this provision was personal and non-assignable.

The court held that under s. 84.1, the assignee steps into the shoes of the bankrupt and acquires all rights and obligations.

The court found the rent reduction was not personal by its nature, and the landlord's objection was out of time as it should have been raised prior to the assignment order being granted.

The defendants brought a motion to strike portions of the plaintiff's amended statement of claim, specifically allegations of express/implied misrepresentation and breach of duty to disclose against Larry Davis.

The court struck out the claim based on express/implied misrepresentation, finding the particulars insufficient and the alleged representation too remote in time.

However, the court dismissed the motion to strike the claim based on a breach of a duty to disclose, acknowledging the arguable existence of a "special relationship" between a proposed borrower and a bank that could create such a duty.

The Royal Bank of Canada (RBC) sought substantial indemnity costs following a successful summary judgment motion against Michael A. Lunardi.

Lunardi had provided a personal guarantee and raised a defence of non est factum, which was rejected in the prior summary judgment.

RBC's guarantee agreement included a clause for legal costs on a "solicitor and own client basis." The court found that RBC was entitled to substantial indemnity costs as per the contractual term, which was freely entered into and not unconscionable.

The court also determined the appropriate amount, rejecting Lunardi's argument that the costs were excessive, noting that the amount sought was only slightly higher than Lunardi's own partial indemnity costs outline.

The plaintiff brought a motion under Rule 26.01 of the Rules of Civil Procedure for leave to amend its statement of claim to add allegations of negligent misrepresentation against the principal of the defendant corporation, following news of his criminal indictment in New York.

The defendants opposed the amendments, arguing they lacked particularity and contained evidence rather than material facts.

The Master granted the motion, finding the proposed amendments set out a claim tenable at law, but ordered the plaintiff to provide additional particulars regarding the specific statements made, the special relationship, and the costs claimed.