Sam P. Rappos

The creditor, Baoling Zhang, brought a motion for an order under subsection 38(1) of the Bankruptcy and Insolvency Act, authorizing her, nunc pro tunc, to commence a proceeding against the bankrupt, Xiuzhen Guan, to challenge fraudulent conveyances of real property.

Zhang also sought leave to issue and register a certificate of pending litigation (CPL) on title to one of the properties.

The court granted the section 38 motion, finding that Zhang met all preconditions and that a nunc pro tunc order was warranted.

However, the request for a CPL was adjourned sine die, as the registrar in bankruptcy lacked jurisdiction to grant a CPL under the Courts of Justice Act and Rules of Civil Procedure for actions under the Fraudulent Conveyances Act.

The court did grant an interim preservation order for 45 days to prevent the property from being conveyed, allowing Zhang time to amend her claim to seek relief under section 96 of the BIA.

Johnstone & Cowling Management Inc. (JCM) brought a motion under section 69.4 of the Bankruptcy and Insolvency Act to lift the stay of proceedings against Hour Media Group Inc. (the bankrupt) and its principal, Carolyn Michele Hourigan, to commence an action for fraud, breach of trust, and conversion.

The bankrupt and Ms. Hourigan did not oppose the motion.

The court adjourned the motion, directing JCM to serve the Office of the Superintendent in Bankruptcy (OSB), emphasizing that the OSB is an interested party in all bankruptcy motions and applications due to its supervisory and intervention powers under the BIA and Bankruptcy Rules.

The court indicated it would grant the order if the OSB did not contact counsel or the court within 10 days of service.

Angella Briscoe, whose consumer proposal was annulled, commenced a Small Claims Court action against her insolvency trustee (Spergel Inc. and Colin Boulton) for negligence and breach of duty under the BIA.

The defendants moved to stay the Small Claims Action pending leave under BIA s. 215.

Briscoe brought a counter-motion seeking leave nunc pro tunc and an order to remove the defendants' counsel, Bruce Simpson, alleging conflict of interest due to his potential role as a witness in the Small Claims Action.

The court dismissed Briscoe's motion to remove counsel, finding that the "lawyer as witness" conflict was not applicable to the current motions in the consumer proposal proceeding, as Mr. Simpson was not a witness for those motions, and the Small Claims Action's continuation was still a threshold issue.

The self-represented plaintiff sought leave to amend his statement of claim against his former lawyers for negligence, specifically to include allegations related to the dismissal of a prior action (the Arcadia Action) for delay and to specify damages.

The defendants opposed, arguing abuse of process and failure to disclose a reasonable cause of action.

The court granted the plaintiff's motion for leave to amend, finding that a tenable cause of action was possible, but required the removal of certain statements that constituted an abuse of process by re-litigating previously decided issues.

The court also ordered the defendants to pay costs to the plaintiff.

The plaintiff brought a motion seeking a timetable for discovery and mediation, and costs for an earlier, abandoned motion to strike the defendant's statement of defence due to delay in document production.

The parties consented to a timetable, rendering the motion to strike moot, but the plaintiff pursued costs.

The court found exceptional circumstances warranted an award of costs to the plaintiff, citing the defendant's significant and unexplained delay of over 25 months in providing initial document disclosure.

The court awarded partial indemnity costs to the plaintiff, emphasizing the importance of timely disclosure for civil justice.

The plaintiff brought a motion seeking two heads of relief: (1) an order compelling defendants to deliver affidavits of documents, attend discoveries, and grant leave to amend the statement of claim; and (2) an order compelling judgment debtors (Pistachio Financier Corp. and Real Crowd Capital Inc.) to answer refusals and undertakings from an examination in aid of execution, and requiring CIBC to produce documents.

The court noted the defendants' delay in document production, leading to the first part of the motion being resolved by consent with costs awarded to the plaintiff.

The second part of the motion was adjourned sine die because it was brought in the wrong proceeding and lacked proper documentation (factum/compendium).

The court emphasized the importance of communication, cooperation, and commonsense, and best practices for filing factums.

The Administrator brought a motion under the Bankruptcy and Insolvency Act (BIA) to revive a consumer proposal that had been deemed annulled due to the debtor's default.

The primary legal question was whether the court had jurisdiction to revive a consumer proposal after the statutory five-year performance period had expired.

The court, relying on prior jurisprudence, including *Shareef Zahrawi*, affirmed its jurisdiction, citing BIA subsections 66.31(9) and 187(11).

Considering factors such as the proposal being near completion, the reason for default (insufficient work hours), and the absence of creditor opposition, the court granted the motion, waiving the debtor's defaults and allowing payments to resume.

The defendants brought a motion under Rule 31.10 of the Rules of Civil Procedure seeking leave to examine two non-parties (the plaintiff's supervisor and a human resources representative) regarding the plaintiff's employment performance and termination.

The plaintiff alleged loss of income and earning capacity due to a motor vehicle accident.

The court dismissed the motion, finding that the defendants failed to satisfy the first conjunctive factor of Rule 31.10(2)(a), as they had not demonstrated that they were unable to obtain the information from the plaintiff or that the plaintiff had constructively refused to provide it.

The court noted that the plaintiff had answered questions to the best of her ability and had provided her employment file, and that the defendants had not asked her to undertake to inquire further from her former employer.

The plaintiff brought a motion seeking an order for mandatory mediation with the defendant by September 25, 2023.

The defendant opposed, arguing that mediation should be delayed until early 2024 to allow for the completion of outstanding undertakings crucial for a full appreciation of the claim.

The court ordered mediation to take place by October 31, 2023.

However, the court dismissed the plaintiff's request for costs, finding the motion unnecessary given the defendant's reasonable proposals for a slightly later mediation date and the plaintiff's failure to demonstrate prejudice.

The court awarded costs of $500 to the defendant, emphasizing the importance of cooperation, communication, and common sense in civil proceedings.

The plaintiff, Capstack Advisory Services Inc., brought a motion to strike the statement of defence of Northern Lights Enterprise Inc. and Aalto Development Inc. due to their failure to serve an affidavit of documents.

The defendants argued the motion was premature and improper, requesting a reciprocal order for the plaintiff to provide a better affidavit of documents and a discovery timetable.

The court dismissed the motion to strike, finding the circumstances did not warrant such a severe remedy, partly due to the plaintiff's own delays and failure to respond to alleged deficiencies in its own disclosure.

Instead, the court ordered a specific timetable for both parties to complete their discovery obligations, emphasizing the "Three C's" of cooperation, communication, and common sense.

The plaintiffs brought a motion seeking to add David Shpilt and Pamela Atkinson as defendants, amend their statement of claim, register a certificate of pending litigation (CPL) against the Homewood Property, and validate service on Mr. Shpilt.

The court granted the motion with respect to adding Mr. Shpilt as a defendant, allowing the amendment of the statement of claim to include him, and validating service on him.

The balance of the motion, concerning Ms. Atkinson and the CPL, was adjourned due to insufficient service on Ms. Atkinson.

An interim order was issued to prevent the transfer or sale of the Homewood Property pending the adjourned hearing.