Randy Schliemann

This endorsement concerns a hearing regarding the bankruptcy of Yen Thi Duong and 18960088 Ontario Inc. The court accepted a proposed release plan for Ms. Duong, with the consent of the Trustee in Bankruptcy and the Office of the Superintendent of Bankruptcy.

The release was granted subject to specific terms, including Ms. Duong's adult daughter acting as surety, posting a $10,000 performance bond, surrender of Ms. Duong's passport, compliance with obligations under section 158 of the Bankruptcy and Insolvency Act, and attendance for examination under section 163 of the Bankruptcy and Insolvency Act.

The court directed Ms. Duong's release from custody upon fulfillment of the bond and passport surrender.

The Bank of Montreal (BMO) brought a motion for summary judgment against 9310088 Canada Inc. (the Company) and its guarantors, Leonardo Mauro and Tatjana Djukovic-Mauro, for outstanding loan amounts.

The Company defaulted on its loan obligations due to a landlord lockout and cessation of business operations.

The defendants argued that BMO failed to withdraw monthly payments, was contractually required to sell assets before demanding payment from guarantors, acted negligently, breached a duty of good faith, and that the doctrine of non est factum applied.

The court found the Company was in default, BMO was not required to realize on assets first, BMO did not act negligently or in bad faith, and the non est factum defence was inapplicable.

Summary judgment was granted in favour of BMO for the full outstanding amounts against the Company and the limited guarantee amount against the individual guarantors, along with pre and post-judgment interest and costs.

The plaintiff, Powerone Solutions Inc., brought a motion for summary judgment seeking damages for breach of contract against the defendant, Trans-Tec Inc. The contract involved the sale of fixed assets and inventory, with a 'time is of the essence' clause.

The defendant argued that the plaintiff breached the contract by failing to provide access to the assets until July 31, 2018, due to a landlord lockout, and raised defenses of contract ambiguity, frustration, and set-off.

The court found a genuine issue requiring a trial regarding the interpretation of the contract, particularly concerning access to assets and the application of the parol evidence rule.

The court also determined that the issue of estoppel by convention and the effect of document destruction required a trial.

Consequently, the motion for summary judgment was dismissed, with costs to be addressed separately.

The plaintiff bank moved for default judgment against the defendants for civil fraud in obtaining small business loans.

The individual defendant submitted a fictitious invoice for equipment that was never purchased and transferred the loan proceeds to various numbered companies.

Shortly after the bank began investigating, the defendant transferred his interest in his home to his spouse for no consideration.

The court found the defendant liable for fraudulent misrepresentation, awarded the outstanding loan amount plus $150,000 in punitive damages, and voided the property transfer as a fraudulent conveyance.

The Trustee brought motions to find the respondent in civil contempt for failing to attend compelled examinations under s. 163(1) of the Bankruptcy and Insolvency Act.

Despite numerous attempts at service and clear evidence that the respondent had actual knowledge of the orders compelling her attendance, she repeatedly failed to appear.

The court applied the three-part test from Carey v. Laiken and found the respondent in contempt beyond a reasonable doubt.

A warrant for her arrest was issued under Rule 60.11(4) to compel her attendance at the penalty hearing.

The plaintiff bank brought a motion for default judgment against a corporate borrower and its directing mind for fraudulent misrepresentation.

The defendants obtained a $350,000 small business loan by submitting a false invoice for equipment and subsequently misappropriated the funds.

The court granted default judgment for the outstanding loan balance of $432,323.41, pierced the corporate veil to hold the individual defendant personally liable for the fraud, and awarded $50,000 in punitive damages against each defendant.

The court declined to impose a constructive trust at this stage but granted a tracing order to allow the bank to follow the misappropriated funds.

The plaintiff bank brought a motion for summary judgment against the defendant for $340,859.77 owed on a line of credit, and for an order dismissing the defendant's counterclaim.

The defendant argued the debt claimed was under a different loan and that the bank breached its contract with his wife, who had guaranteed the loan.

The court found no genuine issue requiring a trial, holding that the evidence established there was only one loan and that the defendant had no standing to claim breach of the guarantee contract.

Summary judgment was granted to the plaintiff, the counterclaim was dismissed, and full indemnity costs were awarded.

The plaintiff bank brought a motion for default judgment against a corporate borrower and its principal for debt collection and fraudulent misrepresentation.

The defendants obtained a $350,000 small business loan using fabricated invoices and false representations about purchasing medical equipment.

The court granted default judgment, finding the defendants jointly liable for the outstanding debt of $442,723.36.

The court also awarded $150,000 in punitive damages for the organized fraud, granted a constructive trust and tracing order, and declared the debt survives bankruptcy under s. 178 of the Bankruptcy and Insolvency Act.

The plaintiff bank sued the defendant for an unpaid credit line, and the defendant counterclaimed.

Ahead of a summary judgment motion, the defendant served a summons to examine the plaintiff's lawyer and sought to cross-examine the plaintiff's affiant on a newly filed affidavit.

The plaintiff moved to quash the summons, and the defendant moved to compel the cross-examination.

The court quashed the summons as an overly broad fishing expedition and an abuse of process, but permitted a brief, 30-minute cross-examination of the affiant limited to the new matters raised in her recent affidavit.

The appellant, a professional accountant and second-time bankrupt, appealed a conditional discharge order requiring him to pay $325,000 to the Trustee.

The application judge found the appellant untruthful, evasive, and in breach of disclosure obligations under the Bankruptcy and Insolvency Act, including failing to disclose businesses, records, property, vehicle sales, and loans/inheritance from his mother.

The Court of Appeal dismissed the appeal, affirming the conditional discharge was based on the appellant's conduct and disclosure breaches, not surplus income under s. 68.

The court also addressed improper ex parte communications by the Trustee, finding no miscarriage of justice.

The appellants appealed a motion judge's decision enforcing a settlement agreement.

The core issue was the interpretation of an email clause regarding the direction of share purchase monies, specifically whether the phrase 'Subject to any contrary direction by His Honour' allowed the motion judge to direct funds into court for creditors.

The Court of Appeal upheld the motion judge's interpretation, finding it was open to him based on the record.

The appellants' application to introduce fresh evidence was dismissed as irrelevant or already dealt with by the settlement terms.

The appeal was dismissed with costs.

The plaintiff bank brought a motion for summary judgment against a corporate defendant and its principal for defaulting on a small business loan and personal guarantee.

The defendants argued they did not receive independent legal advice and that the COVID-19 pandemic frustrated the contract, as their restaurant was forced to close.

The court granted summary judgment, finding no requirement for independent legal advice and holding that the pandemic did not render the repayment obligations radically different from what was originally agreed.

The bankrupt, a CPA and CMA, sought a discharge from his second bankruptcy.

The Trustee and a major creditor opposed the discharge, alleging the bankrupt failed to disclose assets, continued to operate his accounting business post-bankruptcy, and failed to perform his duties under the Bankruptcy and Insolvency Act.

The court found the bankrupt was not an honest and unfortunate debtor, having hidden assets, failed to keep proper books, and misled the Trustee.

The court granted a conditional discharge, requiring the bankrupt to pay $325,000 to the Trustee for the benefit of his creditors.

The plaintiff, an undischarged bankrupt, commenced a professional negligence action against his former lawyer without disclosing the cause of action to his trustee in bankruptcy.

The defendants moved to dismiss the action on the basis that the plaintiff lacked legal capacity to sue, as the cause of action vested in the trustee under s. 71 of the Bankruptcy and Insolvency Act.

The court dismissed the action, finding that the plaintiff lacked capacity and that the claim could not be validated nunc pro tunc because the limitation period had expired.

Dale Ottewell, a creditor in the bankruptcy of Christine Ann Davidson, appealed the dismissal of his motions for leave to commence a proceeding under s. 38 of the Bankruptcy and Insolvency Act (BIA) and to examine individuals under s. 163(2) of the BIA.

The s. 38 motion sought to include a house, beneficially owned by the bankrupt, in the estate, despite a prior family law order where Ottewell consented that the house would not be part of the bankrupt's property.

The Court of Appeal dismissed the appeal, finding no error in the lower court's discretionary refusal to grant leave under s. 38, as Ottewell failed to demonstrate sufficient merit and was attempting to indirectly contravene a prior consent order.

Leave to appeal the s. 163(2) motion was also denied as it concerned a procedural matter without general importance.

The appellant, a creditor in a bankruptcy proceeding, appealed two decisions by Masters sitting as Registrars in Bankruptcy.

The appellant sought an order under s. 38 of the Bankruptcy and Insolvency Act (BIA) to pursue a claim that a property registered in the respondent mother's name was beneficially owned by the bankrupt former spouse.

He also sought an order under s. 163(2) of the BIA to examine witnesses regarding the property and the bankrupt's alleged undisclosed income.

Both Masters dismissed the motions, primarily relying on a prior consent family law order (the "Vallee Order") which explicitly stated the property would not form part of the bankrupt's estate for any purpose.

The court dismissed both appeals, affirming that the Masters did not err in principle or law.

It was held that the appellant failed to establish threshold merit for the s. 38 motion given the Vallee Order, and it would be inequitable to allow him to indirectly pursue what he had expressly agreed not to.

For the s. 163(2) motion, the court found the appellant did not demonstrate "something amiss" with the estate administration, concluding the proposed examinations were a fishing expedition.

This costs endorsement arose from the non-cooperation of Tim Long Chang, the sole officer of the bankrupt Accountable Solutions Accounting Professional Corporation (ASAPC), with the trustee, Albert Gelman Inc. Mr. Chang failed to provide required financial documents and attend creditor meetings, necessitating a motion to compel his examination under oath pursuant to s. 163 of the Bankruptcy and Insolvency Act.

Justice Hainey initially ordered compliance and examination, with costs to be determined by the hearing judge.

Master Kaufman, Registrar in Bankruptcy, found Mr. Chang's failure to comply was due to his blaming the trustee for the bankruptcy.

The motion and examination were deemed necessary.

Costs were awarded to the trustee, payable by Mr. Chang, in the amount of $11,000, after reductions for estimated counsel fees and hours related to a separate examination.

The Bank of Nova Scotia moved for summary judgment against the corporate defendant for outstanding loan and credit line amounts.

Despite being advised multiple times to retain counsel or seek leave for non-solicitor representation, the defendant failed to appear or file evidence.

The court applied the Hryniak v Mauldin framework, found no genuine issue requiring a trial, and granted summary judgment to the Bank, including principal, interest, and costs.