Rachel Moses

The appellant appealed a motion judge's decision to vary a procedural consent order and order the disclosure of an audit report.

The Court of Appeal dismissed the appeal, finding that the motion judge properly varied the consent order because the respondent's counsel was unaware of material facts when consenting.

The Court also upheld the disclosure of the audit report, as there was unanswered evidence that the Trustee had already declared its existence and contents to a third party, making it unnecessary to decide the broader issue of whether a Trustee in Bankruptcy can claim litigation privilege.

The appellant appealed a receiving order finding he had committed an act of bankruptcy by failing to meet his liabilities.

The respondent cross-appealed the trial judge's costs order, which denied the respondent costs and ordered it to pay the appellant's costs for part of the trial.

The Court of Appeal dismissed the appeal, finding ample evidence supported the trial judge's conclusion that the appellant was unable to meet his obligations.

The Court allowed the cross-appeal on costs, holding that the trial judge unreasonably exercised his discretion by ignoring the appellant's evasive conduct and the respondent's presumptive entitlement to costs under the Bankruptcy and Insolvency Act.

The respondent was awarded 90% of its costs on a full indemnity basis.