COURT FILE AND PARTIES
COURT FILE NO.: 13-57904
DATE: 2013/11/07
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
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
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: October 25, 2013
ENDORSEMENT
[1] Matters have arisen since the court’s endorsement released October 3, 2013, which impact the schedule of dates provided therein.
REMOVAL OF DIRECTORS
[2] The applicants in the Receivership Action have brought a motion for removal of the remaining Director(s) of the Foundation. Ms. Floyd-Assaly is to advise the parties whether she will consent to her removal as a Director of the Foundation by Wednesday, October 30, 2013. Should Ms. Floyd-Assaly not consent to her removal, the removal motion shall be scheduled.
ASSALY EXAMINATION AND CROSS-EXAMINATION
[3] The scheduled dates for the examination of Mr. Assaly and Mrs. Floyd-Assaly in Buffalo, New York, were last scheduled for October 17 and 18, 2013, but did not proceed. The Receiver has twice notified this court that two days is insufficient time.
[4] The above examination or cross-examination of Mr. Assaly and Mrs. Floyd-Assaly are hereby rescheduled and will proceed:
(a) on November 12 to November 15, 2013;
(b) commencing each day at 10 a.m.;
(c) at the offices of Metschi & Associates, 295 Main St., Suite 1098, Buffalo, New York;
(d) without any further notice of such examination beyond this endorsement;
(e) pursuant to the laws of Ontario, not pursuant to the law or rules of the state of Florida, New York or elsewhere.
[5] Pursuant to the consent of the parties:
(a) the liability of Directors of the Foundation as provided in para. 69 of this court’s October 16, 2013 endorsement (the “Endorsement”) is limited to Mr. Thomas G. Assaly and does not include the other Directors of that corporation;
(b) the following costs awards are payable in addition to the costs as fixed in the Endorsement, namely:
(i) order of this court dated July 2, 2013 - $15,000;
(ii) order of this court dated August 6, 2013 - $5,500;
(iii) order of the Ontario Court of Appeal dated August 30, 2013 - $750.
(c) any motion to vary a term of the Endorsement shall be served:
(i) by the moving party by Monday, November 4, 2013;
(ii) by the responding party by Thursday, November 14, 2013.
[6] The examination and cross-examination under para. 4 above shall include the issues in the Receivership Action, the Directors Removal Motion and the Connor/Clark motion.
Kane J.
Released: November 7, 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: November 7, 2013