R. Fisher

Costs decision following two motions: the plaintiff trustee in bankruptcy's summary judgment motion against the corporate defendant for unpaid invoices relating to frozen seafood products, which was dismissed, and the individual defendant's motion to dismiss the action against her personally, to which the plaintiff consented.

The court declined to award substantial indemnity costs based on the defendant's offer to settle, finding the offer required complete capitulation and was not a significant compromise.

Costs on a partial indemnity scale were fixed at $17,929.63 for the summary judgment motion and $2,034 for the dismissal motion, payable within 60 days.

The plaintiff brought a motion for summary judgment on a business loan against the corporate borrower and the individual guarantor.

The individual defendant argued she was told by a representative of the plaintiff that she would not be personally liable on the guarantee.

The court utilized its expanded fact-finding powers to hear oral evidence from the individual defendant.

The court found the defendant's evidence lacked credibility and concluded she knew she was guaranteeing the loan.

Summary judgment was granted for the outstanding loan amount.

The applicants and respondents entered into joint venture agreements to invest in commercial real estate projects through jointly owned companies.

The applicants discovered that the respondents were commingling funds, failing to make their required equity contributions, and diverting the applicants' funds to their own personal benefit and to companies they solely owned.

The court found that the respondents breached their contractual and fiduciary duties and were unjustly enriched.

The court imposed constructive trusts over several properties owned by the respondents, appointed a receiver over the respondents' assets, and cancelled the respondents' shares in the jointly owned companies where they had not contributed equity.

The Receiver of Atlas Block Co. Limited moved for approval of the distribution of net sales proceeds from certain assets between two secured creditors, RBC and BDC, and for approval of its allocation of fees and costs.

BDC objected to the distribution, arguing the purchase price allocation in the approved Asset Purchase Agreements undervalued the real property compared to historic appraisals.

The court rejected BDC's objection, noting BDC had not opposed the sale approval motion and the appraisals were dated and less reliable than the market-tested sale price.

The court also approved the Receiver's pro rata allocation of shared costs, finding it prima facie reasonable and noting BDC's delayed objection.

The plaintiffs, Nashaat and Taghreed Aly, claimed a partnership interest in a family grocery business, Nader Halal, operated by Adel Tohamy.

The court found a valid oral agreement from 2001 granting the Alys a 20% interest.

In a related family law application, Adel's former wife, Naiema, sought to set aside two separation agreements that released her claims to the family businesses and spousal support.

The court set aside both agreements under s. 56(4) of the Family Law Act due to Adel's deliberate failure to disclose significant assets, unconscionability, and duress.

The court also found the defendants engaged in spoliation of evidence by destroying financial records and ordered the appointment of a receiver over the businesses pending the damages phase of the trial.

The applicant bank brought an application under s. 243 of the Bankruptcy and Insolvency Act for the appointment of a receiver and manager over the respondents' assets.

The respondents opposed the application, arguing it was premature and that they should be given more time to address the outstanding demand for payment.

The court found that the respondents were in default, had failed to make agreed-upon payments from a prior adjournment, and that the applicant's security position was eroding.

Concluding that it was just and convenient to do so, the court granted the application and appointed a receiver.