COURT FILE AND PARTIES
COURT FILE NO.: 13-56663
DATE: 2013/07/11
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN: (Inspection Proceeding)
COLLEEN MOORE, BARRY DOUCETTE, RONALD X. AYOUB, KIM KRUK, DALE HEIN, PAMELA STONE, CAROLINE LEWANDOWSKY, ANNE LEFIER, GARRY McGINN, DAVID HAMILTON, JAMES MILLER, HELENE LAMADELEINE, MARY LOU FISHER, ALLAN BRETT, DONALD HUTCHINSON, GLORIA HUTCHINSON, RICHARD MELCER, STEPHEN CALDWELL, MICHELLE VEZEAU, DAVID KORNELSEN, KEVIN HARSH, COLLEEN MALTAIS, LUC MALTAIS, BOB MECH, A.A.N.T. SOFTWARE CORPORATION, TERRENCE FINNIGAN and JAMES JOSS
Applicants
AND
THOMAS G. ASSALY, ASSALY INVESTMENT PROGRAM CORPORATION, ASSALY FINANCIAL CORPORATION, ACT 1 CORP., ASSALY CREDIT & TRADE CORP., ASSALY ASSET MANAGEMENT CORPORATION, MILLENNIUM SPRINGS DEVELOPMENT & CONSTRUCTION CORP. (aka MILLENNIUM SPRINGS PROPERTIES LTD.) and MILLENNIUM EDUCATIONAL & RESEARCH CHARITABLE FOUNDATION (formerly the THOMAS C. ASSALY CHARITABLE FOUNDATION)
Respondents
AND BETWEEN: (Receivership Proceeding)
COURT FILE NO.: 13-57904
ONTARIO SUPERIOR COURT OF JUSTICE
IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 101 OF THE
COURTS OF JUSTICE ACT, R.S.O. 1990, c. C.43, AS AMENDED
AND IN THE MATTER OF SECTION 248(3)(b) OF THE
ONTARIO BUSINESS CORPORATIONS ACT, R.S.O. 1990, CHAPTER B.16
AND IN THE MATTER OF SECTION 241(3)(b) OF THE
CANADA BUSINESS CORPORATIONS ACT, R.S.C. 1985, c. C-44
AND IN THE MATTER OF SECTION 253(3)(b) OF THE
CANADA NOT-FOR-PROFIT CORPORATIONS ACT, S.C. 2009, c.23
AND IN THE MATTER OF THE
BANKRUPTCY AND INSOLVENCY ACT, R.S.C. 1985, c. B-3
BETWEEN:
LILY BACIC, RONALD AYOUB, SANDRA AYOUB, DONALD HUTCHINSON, GLORIA HUTCHINSON, KIM KRUK, DALE HEIN, PAMELA STONE, CAROLINE LEWANDOWSKY, LIM LEWANDOWSKY, ANNE LEFIER, GARY McGINN, DAVID HAMILTON, JAMES MILLER, HELENE LAMADLEINE, MARY LOU FISHER, ALLAN BRETT, RICHARD MELCER, STEPHEN CALDWELL, WENDY CALDWELL,BARRY DOUCETTE, COLLEEN MOORE, MICHELLE VEZEAU,DAVID KORNELSEN, KEVIN HARSH, LUC MALTAIS, COLLEEN MALTAIS,
BOB MECH, A.A.N.T. SOFTWARE CORPORATION, TERRANCE FINNIGAN, JAMES JOSS, DAVID WISKOWSKI, MOE LITWACK, TOMY ISSA and GEORGE BOSZORMENY
Applicant(s)
AND
MILLENNIUM EDUCATIONAL & RESEARCH CHARITABLE FOUNDATION (formerly the THOMAS C. ASSALY CHARITABLE FOUNDATION), ASSALY INVESTMENT PROGRAM CORPORATION, ASSALY FINANCIAL CORPORATION, ACT 1 CORP. and MILLENNIUM SPRINGS DEVELOPMENT & CONSTRUCTION CORP. (aka MILLENNIUM SPRINGS PROPERTIES LTD.) THOMAS G. ASSALY, KAREN FLOYD-ASSALY, and FRANK H. FEE, III
Respondents
AND BETWEEN: (Bankruptcy Proceeding)
Court File No.: 33-165343
ONTARIO
SUPERIOR COURT OF JUSTICE
IN BANKRUPTCY AND INSOLVENCY
IN THE MATTER OF THE BANKRUPTCY OF MILLENNIUM EDUCATIONAL &
RESEARCH CHARITABLE FOUNDATION (formerly the THOMAS C. ASSALY
CHARITABLE FOUNDATION) a registered charity carrying on business in the City of Ottawa, in the Province of Ontario
BEFORE: Mr. Justice Paul Kane
COUNSEL:
Justin Fogarty, counsel for the Applicants in the Inspection Proceeding
John E. Smith, counsel for the Respondent, Thomas G. Assaly, in the Inspection Proceeding
Christopher Morris, counsel for Doyle Salewski, in capacity as Inspector
Jason Dutrizac, counsel for Doyle Salewski, in capacity as Interim Receiver
Martin Black, counsel for Robert G. Assaly
Pat Santini, appearing as agent for Shael Eisen, counsel for Millennium Educational & Research Charitable Foundation (“the Foundation”)
Andrew Matheson, counsel for TD Bank and TD Waterhouse
HEARD: July 9, 2013
ENDORSEMENT
Endorsement
1On July 9, 2013, the Inspector brought a motion in the Inspection Proceeding: (a) to settle its accounts as well as those of independent counsel to the Inspector; (b) for an order that the Respondents, Thomas G. Assaly, and Millennium Educational & Research Charitable Foundation [“the Foundation”] are responsible for payment of those accounts; and (c) for an increase in the amount of the Administrative Charge within the Inspection Proceeding.
2Also returnable on July 9, 2013, was the Ex Parte Interim Receivership Appointment and Restraining Order made July 2, 2013, in the Receivership Proceeding and the Bankruptcy Proceeding.
3Counsel for the Foundation is outside of Canada until July 18, 2013. Counsel’s agent therefore sought an adjournment of the above Inspector’s motion to permit its counsel to prepare and attend upon argument of the same. The Inspector opposed the adjournment.
4This court orders that the adjournment is granted on the terms hereinafter set forth:
Inspection Proceeding
Inspection Proceeding
(a) The Inspector’s motion to approve its accounts, to approve the accounts of its independent counsel, for an order that the Foundation and Mr. Assaly are personally liable to pay such accounts and to increase the monetary limit in the Administrative Charge are all adjourned to proceed preemptory on August 7, 2013, at 10 a.m.
(b) The Applicants are also to present on August 7, 2013, at 10 a.m., the accounts of their solicitors in the Inspection Proceeding for inspection and settlement.
(c) The Inspector and the Applicants as the moving parties in relation to the above, shall serve and file all of their materials they rely upon on the Respondents and interested parties by July 16, 2013.
(d) Any questions by the Respondents or others affected as to the accounts of the Inspector, its independent counsel or the Applicants are to be communicated to them in writing no later than July 24, 2013. The issuers of those accounts are to reply to such questions no later than July 29, 2013.
(e) Any party opposing the above motion brought by the Inspector or the Applicants is to file any opposing material in relation thereto by August 2, 2013.
(f) Factums and Book of Authorities in relation to the above motion are to be served and filed four days prior to August 7, 2013.
Receivership Proceeding and Bankruptcy Proceeding
Receivership Proceeding and Bankruptcy Proceeding
5The two Ex Parte Interim Orders in these proceedings restraining the dissipation of assets of the Corporate Respondents, Thomas G. Assaly and Karen Floyd-Assaly and appointing a Receiver of such Respondents, each issued July 4, 2013, were returnable on July 9, 2013.
6Given today’s adjournment of the above Inspector’s motion in the Inspection Proceeding and due to the unavailability today of counsel for the Foundation, the scheduled motion by the Applicants to extend the Ex Parte Restraining Order and appointment of the Receiver is hereby adjourned to proceed preemptory on August 6, 2013 at 10 a.m. upon the terms hereinafter set forth:
(a) The Ex Parte Orders of this court restraining the dissipation of assets and the appointment of an Interim Receiver issued on July 4, 2013 are hereby extended upon all of the same terms and provisions as set forth therein until August 6, 2013 and the issuance thereafter of a decision seeking a further extension thereof. Thomas G. Assaly today did not oppose this extension of the two above Ex Parte Orders.
(b) The Applicants are to serve and file any additional materials they intend to rely upon in support of their motion by July 19, 2013.
(c) The Respondents and any other party affected by these Ex Parte Orders must file any responding material no later than July 26, 2013.
(d) The Factum and Book of Authorities of the parties shall be served and filed no later than four days before August 6, 2013.
Estate Trust
Estate Trust
7An estate trust of the late Thomas C. Assaly was discussed in general terms on July 9, 2013. Any party seeking removal of J. E. Smith as counsel for Thomas G. Assaly is required to serve their motion record on Mr. Smith no later than July 16, 2013. In such event, counsel for such moving party and Mr. Smith are requested to obtain the earliest possible date in July, 2013, through the office of the trial coordinator in order to argue such motion.
Accounting Under Restraining Orders
Accounting Under Restraining Orders
8This court granted an Interim Restraining Order on June 20, 2013, in the Receivership Proceeding. This court later granted an Ex Parte Restraining Order in the Receivership and Bankruptcy proceedings on July 2, 2013 as issued on July 4, 2013.
9The above two orders restrain such Respondents from the expenditures of money or assets except for reasonable living expenses and legal fees as provided for therein.
10The Respondents including Thomas G. Assaly and Karen-Floyd Assaly relying upon the above exception are required to file an accounting of all expenditures made by them since June 19, 2013, pursuant to that reasonable exception by August 1, 2013.
Kane J.
Released: July 11, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Moore et al v. Assaly et al (Inspection Proceeding)
AND
Bacic et al v. Millennium Educational & Research Charitable Foundation et al (Receivership Proceeding)
AND
Millennium Educational & Research Charitable Foundation (Bankruptcy Proceeding)
BEFORE: Kane J.
ENDORSEMENT
Kane J.
Released: July 11, 2013