R. Graham Phoenix

In the context of CCAA proceedings for a land lease community, the senior secured lender brought a motion to appoint a receiver.

The CCAA stay of proceedings was expiring, DIP financing was exhausted, and no viable restructuring plan or purchaser had emerged.

The court found it just and convenient to appoint a receiver to stabilize the community, ensure continuation of essential water and sewage services, and facilitate a credit bid by the secured lender.

A separate unopposed motion to lift the stay to allow repossession of unused modular homes was also granted.

The applicant creditor, Heliotrope Investment Corporation, applied for bankruptcy orders against the respondents, Martha and Gary Beach.

The applicant alleged the respondents owed debts exceeding $1,000 and had committed an act of bankruptcy by ceasing to meet their liabilities generally as they became due.

The respondents opposed the applications, arguing they had sufficient assets, the debts were disputed in related civil proceedings, and the applications were brought for an improper purpose.

The court found that the applicant established the debts and the act of bankruptcy.

The court rejected the respondents' arguments, finding no sufficient cause to dismiss or stay the applications, and issued the bankruptcy orders.

The applicants sought a declaration of ownership over certain equipment and assets ("BuiltRite Assets") and an order compelling respondents to release them, asserting a first-ranking security interest.

The dispute centered on whether a Quitclaim effectively transferred ownership of "Trailered Assets" to Strongco Plastics Ltd. The respondents argued the Quitclaim lacked certainty and consideration, and that claims against the Hernandezes were stayed due to bankruptcy.

Marcelo Hernandez also cross-applied for compensation for work performed.

The court found the Quitclaim unenforceable due to lack of certainty and consideration, dismissing the applicants' claims regarding asset ownership.

The court also found ESC Enterprises Inc. unjustly enriched by Marcelo Hernandez's services and awarded him compensation.

The appellants, major creditors of a bankrupt estate, appealed a Superior Court decision that varied a registrar's taxation of the trustee's final Statement of Receipts and Disbursements.

The registrar had drastically reduced the trustee's fees to $1, disallowed significant legal disbursements, and ordered the trustee to personally pay solicitor and client costs due to misconduct.

The Superior Court judge restored many of the fees and disbursements, finding the registrar exceeded his jurisdiction.

The Court of Appeal allowed the appeal in part, finding the registrar did have jurisdiction under s. 152(6) of the BIA to review previously taxed solicitor accounts.

The Court fixed the trustee's fees at $49,464.44, allowed $100,000 for the estate solicitor's fees, and ordered the trustee to personally pay half of the appellants' costs of the taxation hearing on a solicitor and client scale due to his misconduct.

The Registrar and customers of a bankrupt motor vehicle leasing company appealed the dismissal of their motion to vary a vesting order and for leave to sue the trustee in bankruptcy.

The vesting order had transferred the bankrupt's lease portfolio to assignees free and clear of customer claims for security deposits.

The Court of Appeal dismissed the appeal, finding that the appellants' proprietary or economic rights were not directly affected by the order, as the contractual obligation to refund deposits remained with the bankrupt.

The court also held that a motion to vary under s. 187(5) of the BIA or Rule 37.14 cannot be used to substantively change an order or as a substitute for an appeal.

The vendor and purchaser of certain businesses disagreed on the method of calculating working capital adjustments under an asset purchase agreement.

An accounting firm, KPMG, was directed to calculate the adjustments according to approaches advocated by both parties.

The purchaser sought leave to appeal an order requiring it to make a payment based on KPMG's calculation, arguing KPMG exceeded its jurisdiction.

The Court of Appeal denied leave to appeal, finding that KPMG stayed within its mandate and its determination was final and binding.

In a CCAA proceeding, the appellant sought to enforce a Memorandum of Agreement to purchase the debtor's assets after missing a deadline.

The motion judge found the agreement had expired.

The respondents moved to quash the appeal on the basis that leave was required under s. 13 of the CCAA.

The Court of Appeal held that leave was required because the order was made under the CCAA.

The Court dismissed the appellant's cross-motion for leave to appeal, finding no basis to interfere with the motion judge's findings on expiration and estoppel, and concluding the proposed appeal lacked significance to the practice.