Richard Derek Howell

The appellant, Vdopia Inc., appealed an order requiring it to pay US$373,731.23 to the court-appointed receiver of the respondents.

Vdopia Inc. argued that the motion judge erred by not considering its outstanding counterclaim for equitable set-off.

The Court of Appeal found no error, affirming that the motion judge's finding of indebtedness was well-supported by the record and that the appellant failed to adduce any evidence to support its set-off claim despite ample notice.

The appeal was dismissed, and costs were awarded to the receiver.

This appeal addresses whether a trustee in bankruptcy can initiate an equalization claim under the Family Law Act (FLA).

The Court of Appeal held that while an unexercised equalization entitlement constitutes "property" under the Bankruptcy and Insolvency Act (BIA) and vests in the trustee, the "personal as between the spouses" provision in s. 7(2) of the FLA prevents anyone other than a spouse from initiating such a claim.

The court found no operational conflict between the FLA and BIA, thus dismissing the trustee's appeal to initiate the claim.

A bankruptcy trustee applied to commence an equalization claim under the Family Law Act on behalf of a bankrupt husband, where neither spouse had initiated such a claim post-separation.

The court dismissed the application, holding that the right to an equalization of net family property is inchoate and personal to the spouses until exercised.

It does not become "property" within the meaning of the Bankruptcy and Insolvency Act and therefore does not vest in the trustee until a spouse has commenced the claim.

The court also found no basis for a federal paramountcy argument as there was no conflict between the statutes if the right remained unexercised.

A bankruptcy trustee sought a declaration that a property interest held in the name of the bankrupt’s brother was held in trust for the bankrupt and therefore formed part of the bankrupt estate.

The trustee argued the brother was added to title solely to facilitate mortgage refinancing and had no beneficial ownership.

The respondents asserted the brother contributed significant funds toward the purchase and mortgage payments and held a beneficial interest proportionate to those contributions.

The court rejected the credibility of the respondents’ evidence and preferred contemporaneous documentary records showing the transfer was made for financing purposes only.

The court set aside the transfer of joint tenancy, held the brother had no legal interest in the property, but recognized a trust interest for his $15,000 contribution.

A contested discharge hearing in a bankruptcy proceeding involving approximately $700,000 in admitted claims brought by two principal creditors.

The trustee, the Office of the Superintendent of Bankruptcy, and the creditors opposed the bankrupt’s discharge, alleging lack of cooperation, inadequate disclosure of assets, and potential beneficial ownership of valuable classic vehicles held through corporations controlled by the bankrupt’s sons.

Evidence suggested that the bankrupt’s financial affairs and inter‑corporate transactions were opaque and that assets, including collectible cars, may not have been fully disclosed.

The court concluded the bankrupt had not provided full transparency and imposed strict conditions on discharge.

The discharge was made conditional upon substantial repayment to creditors and was suspended for a defined period.

The bankrupts appealed a Superior Court decision that lifted an automatic stay under s. 69.4 of the Bankruptcy and Insolvency Act, allowing the respondent bank to proceed with an action for fraudulent misrepresentation.

The bankrupts had continued to draw on a line of credit after the collateral mortgage securing it was discharged.

The Court of Appeal dismissed the appeal, agreeing with the appeal judge that the background circumstances could support an inference that the bankrupts' use of the line of credit amounted to a false representation or false pretence.

The appellant appealed an order finding that a judgment debt against the bankrupt did not survive his discharge from bankruptcy.

The Court of Appeal dismissed the appeal, agreeing with the motion judge that the bankrupt was released from the judgment debt pursuant to s. 178(1)(d) of the Bankruptcy and Insolvency Act.

The respondent in an appeal brought a motion for security for costs.

The appellant, an impecunious corporation, had originally brought a motion in bankruptcy proceedings claiming its pre-bankruptcy judgment against the respondent survived his discharge.

The court held that the Rules of Civil Procedure apply to security for costs on appeal in bankruptcy matters.

The court found that the appellant's original motion was sufficiently analogous to an action to be treated as a discrete proceeding under rule 56.01, entitling the respondent to security for costs.

The appellant trustee in bankruptcy appealed the dismissal of its motion to annul the respondent's discharge from bankruptcy.

The appellant argued that a finding in a prior proceeding established that the respondent had fraudulently concealed assets.

The Court of Appeal dismissed the appeal, holding that issue estoppel did not apply because fraud was not pleaded or necessarily bound up with the determination in the prior proceeding, and the respondent had no notice that fraud was an issue.

The court also held that a subsequent bankruptcy order against the respondent did not stay the appeal.

The appellants appealed a trial judgment finding that the undischarged bankrupt acquired shares and diverted property in violation of the Bankruptcy and Insolvency Act.

The trial judge found that the bankrupt collaborated to conceal assets from the trustee and ordered an accounting by the corporate appellants.

The Court of Appeal dismissed the appeals, finding ample evidence to support the trial judge's conclusions on share ownership, jurisdiction, and credibility, and upheld the award of substantial indemnity costs.

The appellants appealed a trial judgment finding them liable for fraud, awarding damages and punitive damages, and granting an oppression remedy.

The appellants operated a petroleum supply business that became insolvent.

They continued to order gasoline from the respondent without intending to pay, using the proceeds to pay themselves and their lawyers.

The Court of Appeal upheld the finding of fraud and the compensatory damages of $539,658.41 for gasoline delivered after January 9, 1997.

However, the Court struck the oppression declaration, the $300,000 punitive damages award, and the order subordinating the appellants' secured claims, allowing the appeal in part.