SUPERIOR COURT OF JUSTICE – ONTARIO

COMMERCIAL LIST

IN THE MATTER OF the bankruptcy of Jay Tien Chiang, of the Town of Richmond Hill, in the Regional Municipality of York, in the Province Of Ontario

RE: Mendlowitz & Associates Inc., in its capacity as Trustee in Bankruptcy of Jay Tien Chiang, and Korea Data Systems (USA), Inc., Plaintiffs

AND:

Jay Tien Chiang, aka Jay Chiang, aka Tienchieh Chiang, Christina Chiang, also known as Suh Mei Tasi, aka Christian Chiang aka Suh Mei Tsai, aka Christina Suh Mei Tsai, aka Suh Mei Tasi Chiang, aka Christina Suh-Mei Chiang aka Suh-Mei Chiang, Chun Chun Wu, Jie Chu Wu, Chen Cheng-Yueh Tsai, Yu Chang Chiang also known as Y.C. Chiang, En Fu Chiang, Brenda Chang, Samson Chang, David Cheng, Everview Inc., 961266 Ontario Inc., 1204360 Ontario Inc., 1243723 Ontario Inc., Aamazing Technologies Inc., Wen Wang Chiang aka Wen Chiang aka Wen Wang, Crystalview Technology Corp., E.C. Holdings Ltd., Telepower International (Canada), Inc., Best Buy Electronics Inc., Su Feng Tsai aka Tsai Su Feng, Tsai Zheng Li, Tsai Zheng Ying, Asia Pacific Gateway (H.K.) Ltd., Century Group Holdings Ltd., Albany Investments Ltd., Mei Huang, Winner International Group Limited, Huang Chi Lung, Min Huang, Wainwright Ventures Ltd., New Global Investment Limited and Floratino Limited, Defendants

BEFORE: D. M. Brown J.

COUNSEL: C. Francis and M. Freake, for the plaintiff Trustee, Mendlowitz & Associates Inc.

G. Benchetrit, for the plaintiff, Korea Data Systems (USA), Inc.

H. Book, for defendant, Christina Chiang

T. Curry, for the defendant/bankrupt, Jay Chiang

HEARD: November 29, 2013

REASONS FOR DECISION

I. BIA s. 38 motion concerning the continuation of existing recognition and enforcement proceedings in Taiwan in which the Trustee is a co-plaintiff

[1] Jay Chiang is a bankrupt. The trustee in bankruptcy of his estate, Mendlowitz & Associates Inc., and his major creditor, Korea Data Systems (USA) Inc. (“KDS”), jointly commenced this Ontario action. The history of Chiang-related litigation in this province is set out in the reasons of Lax J. dated April 17, 2007[^1] and the more recent trial reasons of Associate Chief Justice Marrocco released July 9, 2012.[^2]

[2] This present motion has a narrow focus. KDS moves for orders pursuant to section 38 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, (i) authorizing it to proceed with a legal suit in Taiwan in its own name and at its own expense and risk and requiring the Trustee to assign and transfer to it all of its right in the Taiwan Proceeding, (ii) authorizing it to enforce the two Contempt Cost Orders in its own name and expense or, alternatively, (iii) an order pursuant to section 37 of the BIA reversing any step taken by the Trustee which would preclude or affect the ability of KDS to proceed with the Taiwan Proceeding. This later request for relief was directed at provisions in a settlement agreement entered into between the Trustee and Christina last month. At the hearing counsel for KDS indicated that in the event the Court grant relief under BIA s. 38, KDS would not pursue its request under BIA s. 37.

[3] The Trustee has filed an omnibus motion for directions, supported by an October 11, 2013 Report. One aspect of the motion was a request to seek advice and directions regarding “the Trustee’s rights and duties in relation to proceedings commenced by the Trustee and KDS USA against Christina Chiang in Taiwan”. The Trustee also filed a Supplementary Report dated November 27, 2013 on this motion.[^3] The Trustee does not want to continue the Taiwan Proceeding, and it opposes KDS’ BIA s. 38 motion.

II. Material facts

[4] In 2007 Lax J. of this Court held a lengthy contempt hearing. She found Jay Chiang and Christina Chiang in contempt of this Court[^4] and imposed custodial sentences.[^5] In 2009 the Ontario Court of Appeal upheld the findings of contempt, but varied the sentences.[^6] It is worth observing that in 2010, now Associate Chief Justice Marrocco of this Court concluded that Jay and Christina still had not purged their contempts; the sanctions hearing in respect of those findings has yet to be scheduled.[^7]

[5] Two cost orders flowed from the contempt proceedings heard by Lax J. On June 13, 2011, Lax J. ordered Christina Chiang and Jay Chiang to pay the co-plaintiffs – the Trustee and KDS – costs of $225,000 “within 30 days”. On January 7, 2009 the Ontario Court of Appeal ordered Christina and Jay Chiang to pay the co-plaintiffs costs of $50,000 “forthwith”. I will collectively refer to those two cost orders as the Contempt Cost Orders.

[6] On June 22, 2012, the Trustee and KDS, as co-plaintiffs, commenced a legal proceeding in the Taipei District Court, Taiwan, seeking the recognition and enforcement in Taiwan of the Contempt Cost Orders. The Trustee had signed a power of attorney on May 29, 2012 appointing Taiwan counsel to commence such a proceeding on its behalf.

[7] (Let me pause to note that KDS sought to redact from the public copy of the affidavit of its U.S. counsel, Mr. Steve Cameron, filed in support of this motion, paragraph 10 which simply recited Taiwan counsel’s description of what relief the co-plaintiffs were seeking in the Taiwan Proceeding. I am at an utter loss to understand how one could even begin to attempt to justify, under Ontario law, the redaction of a description in a filed affidavit of a foreign public legal proceeding. Although the description was contained in a communication from Taiwan counsel to Canadian counsel, the description of the Taiwan Proceeding involved merely the statement of public facts, not the disclosure of any privileged legal advice. I see no basis for the redaction.)

[8] Christina Chiang owns an apartment in Taiwan.[^8] Prior court proceedings in Taiwan confirmed her ownership of that property. From the materials filed on this motion, the asset which is the target of the recognition and enforcement proceeding in Taiwan is Christina’s apartment.

[9] The Taiwan originating process was served at Christina’s Taiwan apartment on November 13, 2012. If her siblings indeed occupy that apartment, it is a reasonable inference to draw that they became aware of the enforcement proceedings at that time.

[10] On July 9, 2012, Associate Chief Justice Marrocco released his trial decision in the recognition and preferences proceeding brought by the co-plaintiffs against the Chiangs and others. At trial both KDS and the Trustee were represented by the same counsel. In his Trial Reasons A.C.J. Marrocco recommended that the Trustee secure independent legal advice. He also made certain findings in respect of Christina Chiang, which I reproduce at some length for sake of completeness. He stated:

[523] I am satisfied that Christina Chiang assisted Jay Chiang in his attempts to defeat, hinder, delay and defraud Korea Data Systems (USA) Inc.

[524] I am not satisfied, on the evidence, that Christina Chiang participated in a conspiracy with her husband to hinder the plaintiffs’ collection efforts. In my view, it is not accurate to describe Christina Chiang as a co-conspirator because I am not satisfied that she agreed with her husband to achieve this result. It is more accurate to describe Christina Chiang as someone who assisted her husband's attempts to frustrate Korea Data Systems (USA) Inc.'s collection efforts… A conspiracy requires an agreement between two or more people to pursue a common object. Christina Chiang was not someone with whom the defendant, Jay Chiang, found it necessary to agree. He told her what transactions she was to carry out and she followed his instructions.

[535] Christina Chiang has signed several authorizations permitting the plaintiffs access to virtually all of her financial records. The plaintiffs have made use of these authorizations. I decline to make a general order requiring Christina Chiang to continue to provide authorizations. I also decline to make an order requiring the plaintiffs to stop making use of authorizations previously provided by Christina Chiang. Such an order is more properly dealt with in the contempt proceedings.

[536] Christina Chiang seeks a discharge of the Mareva injunction. I decline to make that order at this time because Christina Chiang is still in contempt of the orders of this Court. I will consider the appropriateness of continuing the Mareva injunction at the continuation of her contempt proceedings.

[537] I am not satisfied that the plaintiffs have demonstrated any damages subsequent to 2004 caused by Christina Chiang's conduct. Any damages that the plaintiffs have suffered as a result of Christina Chiang's conduct are more than sufficiently accounted for in the California judgment currently enforceable against her in Ontario. I decline to order any further damages.

[541] I will receive representations concerning the question of what order should be made concerning costs.

The trial judge declined to order a constructive trust over certain of Christine’s property and declined to make a production order against her.

[11] The Trustee retained independent counsel. The record disclosed that upon so doing, the Trustee parted company with KDS on what further steps should be taken against the Chiangs.

[12] Present counsel for the Trustee learned about the existence of the Taiwan Proceeding no later than February 5, 2013 when she received copies of the court documents from counsel for KDS. Although those documents largely were in Chinese, the face page of the Taiwan originating process clearly named, in English, both the Trustee and KDS. The covering email from KDS counsel unambiguously described the nature of the Taiwan Proceeding: “In late 2012 a claim was commenced in Taiwan for enforcement of the Ontario cost orders against the Taiwan property”.

[13] Late last year or early this year, Taiwan counsel advised KDS that the Taiwan court had requested information about the Contempt Cost Orders. KDS’ Canadian counsel drafted an explanatory affidavit. On March 18, 2013 Trustee’s counsel stated that she did not agree with any steps being taken at this time in the Taiwan proceedings.

[14] That same day Taiwan counsel advised that the court had given him seven more days to provide the requested information. He cautioned: “I cannot rule out the possibility that the case may be dismissed without the affidavit”. Discussions ensued amongst counsel for the Trustee and U.S. counsel for KDS, Mr. Steve Cameron. Trustee’s counsel ultimately advised on March 21:

Can you send me your revised draft. I am content you send in an affidavit (on behalf of KDS only) but I had concerns with some of the details.

Cameron responded by urging that the explanatory affidavit be filed in Taiwan on behalf of both plaintiffs. In its Report the Trustee stated that the affidavit was filed, but only on behalf of KDS, and “on the understanding that this was being done solely to avoid having the Taiwan Proceeding summarily dismissed and that the Trustee was not consenting to the Taiwan Proceeding”. KDS denied the existence of any agreement with the Trustee regarding further steps in the Taiwan Proceeding.

[15] According to the Trustee, it heard nothing further about the Taiwan Proceeding until September 17, 2013. At that time it became known that efforts had been made to serve Christina with documents concerning the Taiwan Proceeding at her mother’s home in Taiwan, and that prompted the Trustee to make inquiries about the status of that proceeding. The Trustee learned that a December 18, 2013 hearing date had been set by the Taiwan court at its own direction.

[16] The Trustee wanted to adjourn that hearing. Taiwan counsel advised that the consent of both the Trustee and KDS would be required to ask for an adjournment. KDS did not consent. The evidence was not completely clear about what happened next, but evidently some directions were given to Taiwan counsel to ascertain whether the court would grant an adjournment of the December 18 hearing. On November 24 Taiwan counsel advised:

I just confirmed with the court clerk that our judge decided to proceed the hearing on Dec. 18 as scheduled. The judge would want to hear our oral explanation about the difference between the plaintiffs on that day. I believe that the judge will not be likely to close the case at the hearing.

[17] In light of the imminent hearing in Taiwan, KDS and the Trustee brought these motions.

[18] Finally, the record disclosed that on October 3, 2013, the Trustee entered into a Memorandum of Agreement with Christina and Jay Chiang. Several portions of that Memorandum are relevant to this motion:

(i) Paragraph 6(g) provided that the Trustee had formed opinions independent of the agreement, one of which was that “the Taiwan Proceeding and any other proceeding to enforce the costs orders of Justice Lax and the Court of Appeal in respect of the Second Contempt Trial should be withdrawn or dismissed”;

(ii) Paragraph 8 stated:

The Trustee will instruct counsel for KDS USA and the trustee in the Taiwan Proceeding to seek an adjournment of the Taiwan proceeding, which is presently scheduled for a hearing on December 18, 2013, sine die until the Trustee has obtained directions from the court on continuing the Taiwan Proceeding. In the event counsel for KDS USA and the Trustee in the Taiwan Proceeding is unable or unwilling to seek an adjournment without instructions from KDS USA and KDS USA refuses to provide such instructions the Trustee will seek interim directions from the Ontario court in respect of the trustee’s right to adjourn the Taiwan Proceeding.

(iii) Paragraph 11 stated:

Subject to and without prejudice to the rights of KDS Korea, KDS USA or any other creditor in the Estate to seek leave pursuant to section 38 of the BIA to pursue claims against Christina Chiang, Benny Mendlowitz and the Trustee in its personal capacity and in its capacity as trustee in bankruptcy of Jay Chiang hereby release Christina Chiang from any claim against her of any nature whatsoever, whether in the existing proceedings or in any new proceedings, and whether now known or unknown, if such claims are in any way related to the proceedings described herein and in Appendix “A”. (emphasis added)

Item 70 on Appendix “A” listed the Taiwan Proceeding.

III. Positions of the Parties

[19] KDS wants to continue the Taiwan Proceeding; the Trustee wishes to be permitted to withdraw from that proceeding. Moreover, the Trustee opposes the BIA s. 38 motion brought by KDS.

[20] Counsel for Christina Chiang and for Jay Chiang appeared on this motion. I read the materials which they filed and I heard their oral submissions in support of the position of the Trustee. Nevertheless, as I will explain below, neither Christina, as a defendant in the Taiwan Proceeding, nor Jay, as the bankrupt, are entitled to formal standing on KDS’ BIA s. 38 motion, so I do not place any weight on their opposition to the order sought.

IV. Analysis

[21] KDS is a creditor of the bankrupt. As was stated by Blair J., as he then was, in Re Jolub Construction Ltd., in order to secure an order under BIA s. 38(1) a creditor must establish that “there is a sufficient case on the merits…to warrant the Court’s approval to proceed” or, to put it in the negative, “the court will not grant leave where the claim is obviously spurious”.[^9]

[22] There is no dispute on the evidence that KDS is a creditor with a claim to enforce the Contempt Cost Orders. Given that the Trustee was a co-plaintiff, and therefore co-beneficiary, to both Contempt Cost Orders, a proceeding to enforce and secure payment of those orders certainly falls with the meaning of a “proceeding…for the benefit of the estate of a bankrupt”.

[23] BIA s. 38 speaks about circumstances where a trustee refuses or neglects to take a proceeding. In the present case the Trustee has already commenced the Taiwan Proceeding; it now refuses to continue with its participation in that proceeding. No party suggested that in those circumstances the principles governing BIA s. 38 should not apply, so I have conducted my analysis based on those principles.

[24] In its written and oral submissions the Trustee advanced several reasons why KDS had not demonstrated a “sufficient case on the merits”. (As I stated, counsel for Christina and Jay adopted those submissions.)

[25] First Reason: In its November 27 Report the Trustee observed that on this motion Christina was taking the position that all prior cost awards against her had been satisfied from the proceeds of the sale of the 10 Cortina Court property. The Trustee stated: “The Trustee accepts that this is a reasonable position to take, which will be determined by Mr. Justice Marrocco in dealing with the set-off issues”.

[26] I could not see any reference in the Trial Reasons to a “set-off issue”. A.C.J. Marrocco wrote that he would entertain submissions “concerning the question of what order should be made concerning costs as far as Christina Chiang is concerned”. It may well be the intention of some parties to argue before him that if he awards costs of the trial in their favour, they should be set-off against prior cost orders made against the party. Be that as it may, the possibility of such submissions being made to the trial judge in the future does not detract from the simple fact that, as of today, the Contempt Cost Orders remain outstanding and are not subject to any set-off order by this Court. That is the factual reality which must govern the analysis in the face of the pending December 18 hearing before the Taiwan court.

[27] The Trustee could not point to any satisfaction piece, or equivalent documentation, evidencing the payment of the Contempt Cost Orders.

[28] Next, the Trustee’s intimation that a payment of $500,000 to it was used to satisfy the obligations of Christina and Jay under the Contempt Cost Orders does not bear scrutiny. Early enforcement proceedings against Christina resulted in the sale of her home at 10 Cortina Court, Richmond Hill. As noted by A.C.J. Marrocco in his reasons dated April 7, 2011 (2011 ONSC 2228) at paragraph 21: “These funds were recovered in action number 05-CL-5739 and were paid to the plaintiffs in partial satisfaction of the monies owed in that action.” KDS was the sole plaintiff in Action 05-CL-5739 in which judgment in the amount of U.S. $6.112 million was granted against Christina. On March 4, 2009, KDS signed an indemnity in favour of the Trustee, paragraph 4 of which stated:

As security for this indemnity, [KDS] undertakes and makes available to Mendlowitz the proceeds of the property at 10 Cortina Court, Richmond Hill, Ontario, which is now possessed by the first mortgagee…When said property is sold, the proceeds up to $500,000 Canadian will be held by Mendlowitz, as security for this indemnity. All proceeds over $500,000 will be sent to [KDS]. Mendlowitz will hold the money in an interest bearing account.

[29] Finally, although the Trustee has received slightly over $1 million by way of settlement of the Winners litigation, the Trustee did not file any evidence, such as a statement of receipts and expenses, to demonstrate that part of those funds have been used to satisfy the Contempt Cost Orders. Moreover, if they had, then KDS, which underwrote all the costs of the proceedings which generated the Contempt Cost Orders, should have been given notice, and it was not. From that I conclude that the Winners settlement proceeds have not been used to satisfy Christina’s obligations under the Contempt Cost Orders.

[30] Second Reason: The Trustee submitted that to grant leave under BIA s. 38 to permit KDS to assume the Trustee’s position in the Taiwan Proceeding would violate the “spirit” of a release previously given by the Trustee to Christina’s siblings who currently occupy the Taiwan apartment. I see no merit in that submission. The release dated April 2, 2013 was signed by both KDS and the Trustee. Christina was not a party to the release, nor did the release purport to release any claim against her.

[31] Third Reason: The Trustee argued that granting leave would allow KDS to breach some understanding reached between the Trustee and KDS earlier, in March of this year, when the Trustee consented to KDS filing an affidavit in the Taiwan Proceeding explaining the Ontario law of costs. I disagree. As reported by the Trustee in paragraph 295 of its Report, it consented to the filing of that affidavit solely “to avoid having the Taiwan Proceeding summarily dismissed and the Trustee was not consenting to the Taiwan Proceeding going forward”. Since March the Trustee has taken the position that it does not wish to proceed with the Taiwan Proceeding, as a result of which KDS, and the Trustee, are seeking orders from this Court in respect of the rights to enforce the Contempt Cost Orders. KDS has not breached any understanding. It has not acted unilaterally in respect of the Taiwan Proceeding. On the contrary, it now moves for formal relief from this Court to proceed in respect of the Trustee’s interest in the Contempt Cost Orders.

[32] Fourth Reason: The Trustee submitted that KDS has abused the process of this Court and should not be granted leave under BIA s. 38 to pursue the Trustee’s interest in the Taiwan Proceeding because that section was not intended to allow the prosecution of proceedings for ulterior purposes. I think some context is required on this point. The proceeding commenced in Taiwan, in respect of which KDS seeks a section 38 order in respect of the Trustee’s interest, seeks to recognize and enforce the Contempt Cost Orders. It is worth recalling what the Ontario Court of Appeal said in the opening sentence of its decision in that contempt proceeding:

This is one of the worst cases of civil contempt to come before this court.[^10]

Given that comment by the Court of Appeal, I do not accept the Trustee’s contention that KDS is acting with an ulterior purpose in seeking to enforce the cost orders awarded in that contempt proceeding.

[33] Earlier in these Reasons I held that neither Christina Chiang, a defendant in the Taiwan Proceeding, nor Jay Chiang, the bankrupt, had standing to be heard on this BIA s. 38 motion, although I reserved judgment on that point until after hearing them. That holding flowed from the well-established principle that neither the bankrupt nor the proposed defendant has standing to be heard on a section 38 motion.[^11] An exception to that restriction on standing exists where objections are made to a proposed section 38 order resting on allegations of abuse of process, non-disclosure, procedural irregularities, fraud and misrepresentation to the court. Such allegations, as our Court of Appeal has observed, require “the scrutiny of the court to ensure that the administration of justice and the integrity of the bankruptcy process [is] not undermined.”[^12] As noted, the Taiwan Proceeding seeks to enforce costs orders which flowed from “one of the worst cases of civil contempt” to have come before the Ontario courts. I have great difficulty understanding how an abuse of process argument could be fashioned in respect of the Taiwan Proceeding given that circumstance. Accordingly, I give no effect to this argument by the Trustee.

[34] When stripped of its “abuse of process” rhetoric,[^13] the Trustee’s submission really boiled down to a position that no further steps should be taken in the Taiwan Proceeding until the trial judge deals with all remaining issues from the trial, including the issue of whether Christina will be awarded any costs against KDS. Last week Christina filed a cost submission with the trial judge seeking substantial indemnity costs of $665,990.96. Responding cost submissions have not yet been filed with the trial judge.

[35] As mentioned, the trial decision was released in July, 2012. The parties proposed exchanging cost submissions at the start of this year. The Trustee then retained independent counsel. The delay associated with bringing new counsel up to speed, when coupled with the uncertainty about which outstanding issues the trial judge would deal with, has resulted in a situation where trial costs have not yet been decided. That is an unfortunate circumstance, but the reality with which I must deal is that the Taiwan court has declined to grant an adjournment of the December 18 hearing date and KDS has an undisputed interest in the Contempt Cost Orders. To defer a consideration of KDS’ BIA s. 38 request or to decline to grant such an order until the trial judge decides all remaining trial issues, including who owes whom how much in costs, risks jeopardizing the extant Taiwan Proceeding to enforce the Contempt Cost Orders. To impose such a risk on KDS, which enjoys rights under those Orders, would work a most unfair result on that judgment creditor.

[36] I should also observe that there is no dispute that it was KDS, not the Trustee, which funded all of the legal costs of the co-plaintiffs for the contempt proceeding which resulted in the Contempt Cost Orders.

[37] Consequently, I conclude that KDS has met the threshold for securing the order it seeks under BIA s. 38 in respect of the Taiwan Proceeding, as requested in paragraph 1 of its Notice of Motion. I grant the following order:

THIS COURT ORDERS that Korea Data Systems (USA) Inc. may proceed with the Taiwan Proceeding in its own name and at its own expense and risk and the Trustee, Mendlowitz & Associates Inc., shall assign and transfer to Korea Data Systems (USA) Inc. all of its right, title and interest in the Taiwan Proceeding and the subject-matter thereof.

[38] In respect of the order sought by KDS in paragraph 3 of its Notice of Motion, I am not prepared to grant the broad order sought. I think it fair, as a term of the order, to limit the assignment of the Contempt Cost Orders to the existing Taiwan Proceeding. Until A.C.J. Marrocco deals with the issue of trial costs in respect of Christina, I see no purpose in authorizing a global assignment of the Contempt Cost Orders which might only result in KDS in initiating new enforcement proceedings against Christina in some other jurisdiction.

[39] A.C.J. Marrocco has not yet dealt with the issue of the costs of the trial. Any cost award he ultimately makes may increase, reduce or eliminate any net obligation of Christina to pay costs to KDS and/or the Trustee, and the trial judge’s cost award may, or may not, provide a complete set-off in favour of Christina against the obligations she presently owes under the Contempt Cost Orders. Christina’s net obligation in respect of costs will not be known until all costs submission have been filed with A.C.J. Marrocco and he releases his decision on costs, which may be a number of months down the road.

[40] BIA s. 38(1) authorizes the court to include in any order such “terms and conditions as the court may direct”. So, in respect of the relief requested in paragraph 3 of the Notice of Motion, I grant the following order:

THIS COURT ORDERS that Korea Data Systems (USA) Inc. may enforce the Contempt Cost Orders in its own name and at its own expense and risk, but only in the Taiwan Proceeding, and the Trustee, Mendlowitz & Associates Inc., shall assign and transfer to Korea Data Systems (USA) Inc. all of its right, title and interest in the Contempt Cost Orders for purposes of the Taiwan Proceeding.

[41] Having granted orders under BIA s. 38, it follows that I dismiss the relief sought by KDS in paragraph 2 of its Notice of Motion under BIA s. 37. There shall be no costs of this motion.

[42] I order sealed the un-redacted motion record of KDS filed on this motion. KDS has filed a redacted one for the public record. I commented above that one redaction was not supportable at law.

[43] As I indicated at the hearing, I shall try to release scheduling directions on all further issues to the parties within the next week.

[44] I close by re-iterating the imperative, given the history of this proceeding, that the Trustee remain independent in its conduct. Certain passages in its factum on this motion could be read as indicating that the Trustee was going behind orders and judgments of this Court and offering its own views about the merits of the claim by KDS against the Chiangs. The Trustee must remain focused on discharging an independent, even-handed administration of the bankrupt’s estate. By making this comment I am in no way offering a view on the merits, or lack thereof, of positions taken on other issues by parties to this litigation. I simply re-iterate the importance that at least the Trustee, amongst all the players in this piece of litigation, act and be seen to act as an independent, court-appointed officer.

[45] I wish to thank counsel for providing me with helpful material within a short period of time.

D. M. Brown J.

Date: November 30, 2013

[^1]: 2007 12203.

[^2]: 2012 ONSC 3922.

[^3]: I would remind the Trustee about the need to ensure that reports filed with the Court are limited to statements of fact or fact-supported understanding, as well as proposed recommendations and the supporting reasons. Argument and speculation must be avoided: see Canrock Ventures LLC v. Ambercore Software Inc., 2011 ONSC 1138. For example, the last sentence in paragraph 13 of the November 27, 2013 Report was nothing more than speculation. It should not have been included in that report.

[^4]: 2007 12203 (ON SC).

[^5]: 2007 82789 (ON SC).

[^6]: 2009 ONCA 3.

[^7]: 2010 ONSC 4804.

[^8]: A.C.J. Marrocco dealt with the Taiwan apartment in paragraphs 316 through to 330 of his Trial Reasons, 2012 ONSC 3922.

[^9]: (1993), 21 C.B.R. (3d) 313 (Ont. Gen. Div.), para. 19.

[^10]: 2009 ONCA 3, para. 1.

[^11]: Shaw (Trustee of) v. Nicol Island Development Inc., 2009 ONCA 276, para. 44.

[^12]: Ibid., para. 48.

[^13]: I urge the Trustee to read very carefully the penultimate paragraph of these Reasons. The Trustee and its counsel must avoid taking positions or using language which will only further inflame an already volatile piece of litigation.