COURT FILE AND PARTIES
COURT FILE NO.: 13-57904
DATE: 2013/10/03
Receivership Action
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
Applicants
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
Bankruptcy Action
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
Nature’s Walk Promissory Note Action
Court File No.: CV-13-00489332
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
THOMAS ASSALY and MILLENNIUM EDUCATIONAL & RESEARCH CHARITABLE FOUNDATION formerly known as THOMAS G. ASSALY CHARITABLE FOUNDATION
Plaintiffs
and
LILY BACIC, RONALD AYOUB, ALISON AYOUB, DONALD HUTCHINSON, GLORIA HUTCHINSON, KIM KRUK, DALE HEIN, PAMELY STONE, CAROLINE LEWANDOWSKY, JIM LEWANDOWSKY, ANNE LEFIER, GARY McGINN, DAVID HAMILTON, JAMES MILLER, HELENE LAMADELEINE, MARY LOU FISHER, ROBERT ALLAN BRETT, RICHARD MELCER, STEPHEN CALDWELL, WENDY CALDWELL, BARRY DOUCETTE, COLLEEN MOORE, MICHELLE VEZEAU, DAVID KORNELSEN, KEVIN HARSH, LUC MALTAIS, COLLEEN MALTAIS, A.A.N.T. SOFTWARE CORPORATION, TERRANCE FINNIGAN, JAMES JOSS, DAVID WISKOWSKI, MOSES LITWACK, TOMY ISSA and GEORGE BOSZORMENY, JEFF MAZIK, TERRI MAZIK, PATRICK CAICCO and MARLENE CAICCO
Defendants
BEFORE: Kane J.
COUNSEL:
Justin R. Fogarty and Pavle Masic, counsel for the Applicants in the Receivership Action and the Applicants in the Bankruptcy Action
John E. Smith, counsel for the Respondents Thomas G. Assaly and Karen Floyd-Assaly in the Receivership Action
Jason Dutrizac, counsel for Doyle Salewski, the Receiver in the Receivership Action
Shael Eisen, counsel for Millennium Educational & Research Charitable Foundation (“the Foundation”) in the Receivership Action
Howard F. Manis, counsel for the Foundation and Thomas G. Assaly in the Nature’s Walk Promissory Note Action
HEARD VIA TELECONFERENCE: September 25 and 30, 2013
ENDORSEMENT
[1] Matters have arisen since the orders of Kershman J., dated September 4 and 10, 2013 in the Bankruptcy Action which impact the schedule of dates provided therein.
REMOVAL OF DIRECTORS AND CONNOR/CLARK
[2] The applicants in the Receivership Action have brought a motion for removal of a Director(s) of the Foundation. The Foundation has brought a motion regarding Connor/Clark. Such motions, now scheduled to proceed on October 11 and 12, 2013, are adjourned on consent to a future date to be set through the trial coordinator.
ASSALY EXAMINATION AND CROSS-EXAMINATION
[3] The scheduled dates for the examination of Mr. and Mrs. Assaly in Ottawa on September 26 and 27, 2013 are hereby cancelled due to their allegation that they will not be permitted under United States immigration law to re-enter that country at the conclusion of such examinations.
[4] Counsel for the Assalys advises that alternate United States visa permission may be applied for by Mr. and/or Mrs. Assaly to permit their periodic attendance in Canada as required for these proceedings. It is this court’s expectation that Mr. and/or Mrs. Assaly will apply immediately for any visa permission required from the Government of the United States of America to thereby permit their attendance in Canada in these proceedings. The Assalys shall immediately apply for such visa permission and thereupon provide counsel for the parties with a) confirmation of the date of their visa application to the United States immigration authority and b) the date of issuance of such visa permission permitting their re-entry into the United States of America immediately upon issuance of the same or notice of rejection of such application(s).
[5] The cancelled September 26 and 27, 2013 examinations and cross-examinations under paragraph 1 above shall proceed on October 17 and 18, 2013, in the City of Buffalo, New York at the offices of Metschl & Associates, 295 Main St., Suite 1098, Buffalo, N.Y., commencing each day at 10:00 a.m. No notice of examination or cross-examination beyond this endorsement is required. This accommodation of the Assalys’ U.S. visa issue(s) is without prejudice to the Ontario location of future steps in these actions.
[6] The examination and cross-examination under paragraph 5 above shall be conducted pursuant to the laws of Ontario, including the Ontario Rules of Civil Procedure, R.R.O. 1990, Reg. 194 and not pursuant to any laws of the United States of America. Mr. and Mrs. Assaly will be represented on those examinations and cross-examinations by Canadian counsel and not by U.S. counsel.
[7] The examinations and cross-examinations under paragraphs 5 and 6 above shall involve the issues in the Receivership Action, the Directors Removal Motion and the Connor/Clark motion.
[8] Having accommodated the current visa issue of Mr. and Mrs. Assaly under paragraphs 4 and 5 above, they shall by Friday, October 4, 2013, provide Mr. Dutrizac in trust with funds in the amount of $7,500 for immediate reimbursement of the reasonable transportation and accommodation costs of counsel for the applicants in the Receivership Action, counsel for the Receiver and the Receiver, to, from and in the City of Buffalo under paragraph 5 above.
[9] Mr. Manis shall advise opposing counsel by Wednesday, October 2, 2013, whether the plaintiffs consent to an order changing the venue of the Nature’s Walk Promissory Note Action to Ottawa.
Kane J.
Released: October 3, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Lily Bacic, et al
Applicants
AND
Millennium Educational & Research Charitable Foundation et al
Defendants
BEFORE: Kane J.
ENDORSEMENT
Kane J.
Released: October 3, 2013