Court File and Parties

Citation: 2025 ONSC 5665

Court File No.: BK-22-00000005-TP32

Date: 2025-10-15

Ontario Superior Court of Justice

Bankruptcy and Insolvency

Between:

COLLARD PROPERTIES INC.

Applicant/Creditor

- and -

COLLARD & MARKUS CONSTRUCTION INC.

Respondent/Debtor

Counsel

S. Erskine, Counsel for the Applicant/Creditor

P. Hiebert, Counsel for the Respondent/Debtor

Hearing Dates

Heard: November 10, 2023, July 31, 2024, August 1, 2024, February 7, 2025, September 12, 2025

Closing Submissions in Writing Received: September 29, 2025

Judge

The Honourable Justice M. Valente

Reasons for Decision

Overview

[1] The Applicant, Collard Properties Inc. ("Properties"), seeks a Bankruptcy Order in respect of Collard & Markus Construction Inc. ("Construction") pursuant to s.43 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the "BIA").

[2] The Respondent, Construction, disputes that Properties has met the test for a Bankruptcy Order and seeks a dismissal of the bankruptcy application (the "Application").

[3] The trial of the Application proceeded over five days at the conclusion of which the parties delivered written submissions.

[4] Pursuant to the agreement of the parties, all affidavits delivered in support of and in response to the Application together with the transcripts of the parties' cross-examinations on their respective affidavits were treated as evidence on the Application.

Background Facts

[5] Many of the background facts are undisputed.

[6] Construction was incorporated on June 17, 2021, and ceased operations on September 20, 2022. Construction is owned fifty percent by Jeffrey Markus and fifty percent by Collard Holdings Ltd. Construction was in the business of building and renovating residential homes. Construction's sole client was Properties.

[7] Properties is a real estate acquisition company that purchases and renovates apartment buildings. Clifford James Collard, also known as Jamie Collard, and his spouse, Leslie Collard, are officers and directors of Properties and its shareholders.

[8] Properties is a related corporation to Construction. Mr. Markus and Ms. Collard are directors of Construction.

[9] Construction earned its revenue through a management fee of twelve percent which it levied on its material, labour and subcontractor costs, and all of which were charged to Properties. From this revenue stream, Construction was to pay its expenses and earn a profit.

[10] It is the disputed position of Properties that Construction did not earn sufficient revenue to pay its expenses and is indebted to Properties.

[11] The parties agree that Construction was dependent on Properties to fund its start-up and initial operating costs.

[12] To evidence the advances of Properties to Construction for its start-up and initial operating costs, Construction entered into two promissory notes. The first note for $50,000 was signed by Mr. Markus on behalf of Construction in or about November 2021, although the note is dated August 27, 2021. The second note, in the amount of $162,508.45, was not signed by Mr. Markus but by Leslie Collard, on behalf of Construction, on July 7, 2022. Mr. Collard testified that the second note crystallized the amounts that Properties had continued to advance to Construction for its early operating expenses less all amounts repaid by Construction.

[13] By the time that Construction stopped operating, Properties maintains that it had advanced a total of $241,368.01 to fund start-up and operating costs while Construction repaid only $43,279.38.

[14] These amounts are disputed by Construction.

[15] The relationship between Properties and Construction did not take long to deteriorate.

[16] On August 3, 2022, Mr. Markus received a letter from a lawyer on behalf of Mr. and Ms. Collard proposing to purchase his fifty percent interest in Construction for an amount equal to Construction's outstanding indebtedness to Properties. Mr. Markus did not agree to the Collards' buyout proposal because he believed Construction had generated profits to which he was entitled as a fifty percent shareholder.

[17] On August 8, 2022, Mr. Markus deposited to Construction's bank account $174,736.90 in cheques after which he withdrew $150,000.

[18] The $150,000 withdrawal was made without board or shareholder approval and left insufficient funds in the corporation's account to pay its liabilities as they came due.

[19] Construction's lawyer, Dominic Alfred, requested that the $150,000 be returned to the corporation's bank account but Mr. Markus did not return the funds.

[20] Mr. Markus' lawyer, Philip Hiebert, advised by letter, dated August 15, 2022, that the $150,000 was to be held in trust until such time as a motion might be brought to determine Mr. Markus' entitlement to the funds. No motion was ever delivered.

[21] Instead, on Mr. Markus' March 8, 2023 cross-examination, he testified that the funds had been withdrawn to pay tax or subcontractor liabilities. However, neither of these liabilities were paid and the $150,000 remains in Mr. Hiebert's trust account.

[22] After the withdrawal of the $150,000 by Mr. Markus, Mr. Collard was concerned that additional sums would be removed from the Construction bank account without authorization. For this reason, Properties stopped paying Construction directly for the amounts owed on account of its labour, materials and subcontractor costs.

[23] Rather, Mr. Collard retained lawyer, Mr. Alfred, as trustee, to receive funds owed to Construction by Properties and to disburse those funds to pay Construction's creditors. Mr. Collard testified that Properties otherwise injected funds into Construction through Mr. Alfred's trust account after Mr. Markus' withdrawal of the $150,000 to keep Construction afloat.

[24] It is the position of Properties that it paid into Mr. Alfred's trust account a total of $224,440.82 to pay Construction's subcontractors and a further $63,373.00 to pay Construction's employees for work done on Properties' lands after August 18, 2022.

[25] These amounts are also disputed by Construction.

[26] Mr. Markus testified on September 12, 2025 that no subcontractor of Construction has complained to him that they were not paid for work done subsequent to August 18, 2022.

[27] Of the amounts paid by Properties into the Alfred trust account, no amount was paid on account of Construction's twelve percent management fee.

[28] On September 13, 2022, Mr. Markus advised Properties that Construction was experiencing labour and material shortages that prevented it from meeting its contractual obligations to Properties and suggested that Properties best find another construction company to meet its needs.

[29] On September 20, 2022, Properties confirmed its acceptance of what it considered to be Construction's termination of its involvement in Properties' projects, and in the alternative, accepted Construction's anticipatory breach and/or repudiation of its contractual relations.

[30] Construction's position is that Mr. Markus' communication of September 13, 2022, was neither a notice of termination nor an anticipatory breach of its contractual obligations; it was merely an honest request for help to keep Properties' construction project on schedule.

[31] On September 20, 2022, Construction stopped operating. After its cessation of business, Properties dealt directly with Construction's former subcontractors and employees to ensure that the projects that they were working on were completed.

[32] Once Construction stopped doing business, Properties also took possession of its tools and five vehicles. Properties subsequently used some, if not all, of the vehicles for its own purposes.

[33] These Construction assets were purchased in the summer of 2021 with funds advanced by Properties in the amount of $73,790.22. Three of the five vehicles were sold in November 2024 and March 2025 for the cumulative sum of $25,000 which was applied to Construction's Canada Revenue Agency ("CRA") harmonized sales tax ("HST") liability as addressed below in these Reasons.

[34] Mr. Markus' position is that Construction's assets are today valued at $100,000 to $140,000 and that Properties is otherwise indebted to Construction for the use of its vehicles at the monthly rate of $2,000 per vehicle.

[35] In late 2022, Construction commenced an action against Properties for the return of its chattels. That action is pending.

[36] The Application, issued on November 29, 2022, alleges that as of October 31, 2022, Construction owed CRA approximately $2,000 in unpaid HST liabilities. Mr. Markus admits in his affidavit, sworn December 7, 2022, that he was advised by CRA a few weeks earlier that the HST debt was $2,432.55.

[37] CRA's undisputed notice of assessment, dated December 12, 2022, however, assessed the HST liability in the amount of $72,254.72, including penalties. As a result of applying the $25,000 proceeds of sale from Construction's three vehicles, as of September 11, 2025, CRA confirmed the outstanding indebtedness to be $48,668.77.

[38] Properties alleges in the Application that Construction was indebted to it in the amount of $284,905.64 as of November 3, 2022.

[39] Properties also alleges that, within six months next preceding the date of the filing of the Application, Construction committed several acts of bankruptcy. Specifically, it:

a. ceased to meet its liabilities generally as they became due;

b. fraudulently gifted, delivered or transferred its property or any part thereof; and

c. assigned, removed, secreted or disposed of, or attempted, or is about to assign, remove, secrete or dispose of property with intent to defraud, defeat or delay its creditors or any of them.

[40] Properties seeks the appointment of Pollard & Associates Inc. ("Pollard") to act as trustee in bankruptcy. Pollard has agreed to act in such capacity.

[41] Construction denies that it is indebted to Properties and denies having committed any act of bankruptcy.

[42] Moreover, Construction alleges that Properties is indebted to it for, among other matters, work performed, and materials supplied pursuant to its agreement with Properties in the approximate amount of $350,000 as stipulated in three invoices, dated August 16, 2022, August 29, 2022, September 12, 2022, and a further estimate for services and materials supplied during the period of September 20 to 26, 2022.

[43] Construction also alleges that Properties orchestrated Construction's apparent insolvency to avoid paying its debts and to remove Mr. Markus as a director and shareholder of Construction without compensation.

[44] In the spring of 2023, Construction issued a statement of claim for, amongst other relief, damages in the sum of $332,893.68 for services rendered.

The Test for a Bankruptcy Order

[45] The test on an application for a bankruptcy order is set out in s.43 of the BIA:

43(1) Subject to this section, one or more creditors may file in court an application for a bankruptcy order against the debtor if it is alleged in the application that:

a) the debt or debts owing to the applicant creditor or creditors amount to $1,000; and

b) the debtor has committed an act of bankruptcy within the six months preceding the filing of the application.

[46] The court shall require proof of the facts alleged in the application, and, if satisfied with the proof, may make a bankruptcy order (s.43(6)). If, however, the court is not satisfied with the proof of the facts alleged in the application or is satisfied that the debtor is able to pay their debts, or that for other sufficient cause an order ought not to be made, it shall dismiss the application (s.43(7)).

[47] The burden of proof on an applicant in a bankruptcy application is the civil standard. Every allegation must be strictly proven by "sound and convincing evidence" (see: Re 0757376 B.C. Ltd., (2011), 2011 CarswellBC 2500 (B.C.S.C.), quoted with approval in The 2025 Annotated Bankruptcy and Insolvency Act, Lloyd W. Houlden, Jeffrey B. Morawetz and Janis, P. Sarra, Thomson Reuters at para. 347, p. 150).

Analysis

a) The First Element of the Test: A Debt Owing to the Applicant or Other Creditors of $1,000

[48] I agree with Construction that Properties cannot rely on the second promissory note, dated May 24, 2022, in the sum of $162,508.45. Apart from the note inaccurately describing the debtor as "CMC Construction", it is executed by Ms. Collard in her dual capacity as a director of both Properties and Construction. Ms. Collard was in conflict when she signed the note on behalf of both the creditor and debtor without the authorization of Mr. Markus.

[49] Apart from the promissory note of May 24, 2022, Properties relies on evidence of Construction's underlying indebtedness to it for Construction's start-up and initial operating costs. That evidence includes a summary of all advances made by Properties to Construction for these costs from July 6, 2021, to December 17, 2021, plus one further advance on October 5, 2022. The summary of advances is referred to by Construction in its submissions as the "Transfer Tracker" which nomenclature I adopt for purposes of these Reasons. The Transfer Tracker records total advances to Construction in the sum of $241,368.01.

[50] The Transfer Tracker was created by Properties for the purpose of the Application. The source of the Transfer Tracker data was generated from an accounting software program known as the "Monday Board". The Monday Board program was used to record all financial transactions between Properties and Construction. Where applicable, the transactions were broken down by the individual property unit for which Construction undertook work at the request of Properties.

[51] At all material times Construction was granted access to view but not edit the Monday Board accounting. Prior to the issuance of the Application, there is no evidence to suggest that Mr. Markus, or anyone on behalf of Construction, raised any issue with the accuracy of the Monday Board accounting.

[52] While Mr. Markus agreed on cross-examination that a significant sum of money was advanced by way of loan to Construction by Properties to fund its initial operations, he disputes that $241,368.01 was loaned to Construction for this purpose and that it repaid only $43,279.38 of the sums advanced.

[53] Construction submits that little weight should be given to the Transfer Tracker because it was produced by Properties on the eve of trial and that its late delivery resulted in Construction's limited cross-examinations of Properties' witnesses, Nicole Tomkinson, director of operations, and Mr. Collard. Secondly, Construction submits that the court should conclude that the Transfer Tracker data, like all of Properties' accounting, is generally inaccurate because of Properties failure to call Ms. Collard as a witness. In Construction's submission, Ms. Collard should have testified because she was involved in the day-to-day operations of both corporations and was a decision maker for both companies. Ms. Collard was not called, however, Construction submits because she would have offered evidence favourable to its position.

[54] I do not accept either of Construction's submissions.

[55] The Transfer Tracker was delivered two days prior to Ms. Tomkinson's testimony and more than eight months prior to that of Mr. Collard. In addition, the court offered Construction's counsel a great amount of time and latitude in the cross-examination of Properties' witnesses. I also am not prepared to draw any adverse inference by reason of Ms. Collard not testifying on behalf of Properties. There could be many reasons for Ms. Collard not testifying and there is no evidence to suggest that her testimony would impact negatively on Properties' position. Moreover, there was no obstacle preventing Construction from calling Ms. Collard should it have wished to test its theory.

[56] Construction further submits that of Properties' recorded loan advances of $241,368.01, $130,513.95 should be discounted. The latter amount, according to Construction, represents the cumulative sum allegedly paid by Properties to Construction's subcontractors during its first months of operation when pursuant to the parties' agreement, it was Construction that was to have paid its subcontractors after billing Properties and receiving payment.

[57] Mr. Collard's evidence is, however, that Properties paid certain of Construction's contractors directly to ensure timely completion of the projects because several subcontractors were not prepared to wait to be paid during the initial months of Construction's operations.

[58] I accept Mr. Collard's explanation. Even if I were to reject it, however, that would still leave a loan advance for Construction's start-up and early operating costs of $110,854.06 of which Mr. Markus conceded on cross-examination some $4,000 remains outstanding to Properties.

[59] To establish the minimum prerequisite indebtedness of $1,000, Properties also relies on the advances it made after August 18, 2022 for work done on its lands to pay Construction's payroll and operating expenses of $63,373 and its subcontractors' costs of $224,440.82, all of which remain outstanding.

[60] Construction raises no issue with the payroll and operating cost advances made by Properties after August 18, 2022. Of those amounts, I note that a final payroll expense of $22,000, advanced on October 5, 2022, is included in the Transfer Tracker.

[61] Construction does dispute, however, a myriad of payments totalling some $144,000 made to its subcontractors after August 18, 2022. Construction disputes the payments for several reasons, including the duplication of payments, the payment for work done subsequent to Construction's cessation of operations on September 20, 2022, and the payment of deposits for future work. Nonetheless, in the end, Construction's counsel concedes that $80,000 of the post August 18, 2022, subcontractor payments were made legitimately.

[62] Having found that Construction is indebted to Properties in the minimum amount of $1,000, Construction submits that the court's analysis does not end there because it has a substantial set off claim consisting of four elements.

[63] Firstly, Construction submits Properties is indebted to it in the sum of $44,418.55, which Properties debited to its account on August 18, 2022 for no justified reason.

[64] On the other hand, Mr. Collard testified that the disputed amount was paid from its account to Construction's credit card company on Construction's behalf as a part of a larger $60,022.73 payment, the difference for which Construction was not responsible. Properties tendered in evidence proof of the $60,022.73 payment from its account. Mr. Collard also testified that the credit card payment from Properties' account was made on August 18, 2022, when its access to the Construction account was blocked by Mr. Markus.

[65] Mr. Markus did not deny that Properties had no access to the Construction account on August 18, 2022, and nor did he offer any evidence to suggest that $44,418.55 was not credited to the Construction credit card account on or about August 18, 2022. Furthermore, Mr. Markus did not cross reference the Construction credit card statements to the spreadsheet prepared by Mr. Collard itemizing all credit card debits and credits, including the challenged $44,418.55 payment. In these circumstances, I conclude that Construction has not met its burden of establishing the alleged indebtedness by Properties.

[66] Secondly, Construction submits that Properties is indebted to it in the approximate amount of $350,000 for services and materials supplied to Properties for the period of August 16, 2022, to September 26, 2022. Apart from the fact that Construction's claim for payment for these services and materials is the subject of an unresolved contested civil proceeding in action No. CV-23-275, Construction offered no evidence in support of its damage claim. I am therefore unable to conclude that Properties is indebted to Construction in any amount for the supply of services and materials immediately prior to its cessation of operations.

[67] Thirdly, it is Construction's position that Properties is liable for the agreed twelve percent management fee due to it on the subcontractor and labour costs that Properties paid directly to Construction's contractors and employees during its initial months of operation ($130,513.95 according to Construction) and after August 18, 2022 ($287,813.82 based on the evidence of Properties).

[68] Without making any finding regarding Construction's entitlement to a management fee on these direct payments by Properties, were I to accept Construction's argument, at its highest that would equate to a payment of only $50,199.33, which is less than the $84,000 that Construction concedes is due and owing to Properties.

[69] Finally, it is Mr. Markus' evidence that Properties is indebted to Construction for the use of the use of its five vehicles from September 2022 at the rate of $2,000 per month per vehicle. Apart from no evidence that all five vehicles were used by Properties on a continuous basis, or otherwise, Mr. Markus offered no credible or reliable evidence with respect to commercially reasonable rental rates for the vehicles at issue. Without any such evidence, this court is not prepared to guess at an acceptable rental rate particularly given the lack of evidence regarding the nature of the vehicles and their use.

[70] Accordingly, I am satisfied that the first element of that test under s. 43(1) of the BIA (a debt or debts owing to the applicant or creditors that amount to $1,000) is satisfied.

b) The Second Element of the Test: An Act of Bankruptcy within Six Months of the Application

[71] As to whether the debtor has committed an act of bankruptcy within the six months preceding the filing of the application, s. 42(1) provides that a debtor commits an act of bankruptcy in each of the ten cases stipulated in the subsections that follows.

[72] Properties relies on the three of such instances as I have previously referenced in these Reasons. I find it necessary, however, to focus only on Properties' position that Construction ceased to meet its liabilities generally as they became due.

[73] I would make the initial observation that the jurisprudence is not clear as to whether a demand for payment must be made where the petitioning creditor asserts that the debtor has failed to meet their liabilities generally within six months of the application. There are cases that have held that there is no necessity to make a demand for payment in the six-month period preceding the filing of the application (see: Re The Pas Foundation and Excavation Ltd., (1975), 21 C.B.R. (N.S) 154 (Man. Q.B.); Re Aarvi Const. Co., (1978), 29 C.B.R. (N.S.) 265 (Ont. S.C.)). On the other hand, there are also cases that have found that a demand for payment during the six-month period is necessary to establish the act of bankruptcy (see: Re Harrop of Milton Inc., (1979), 22 O.R. (2d) 239; Re 307309 B.C. Ltd., (1991), 11 C.B.R. (3d) 187 (B.C.S.C.)).

[74] If a demand is necessary, the evidence is that demand was made on Mr. Markus to return the $150,000 that he withdrew from Construction's account which he failed to do and thereby caused Construction's inability, at least in part, to meet its liabilities as they became due.

[75] If, on the other hand, a demand is not necessary, then the act of bankruptcy is established on the record by:

a) Construction's failure to make any payments to Properties for the funds advanced to it in the six months preceding the Application, and according to Properties' record, no debt reduction payments since September 3, 2021;

b) The August 8, 2022, withdrawal of $150,000 from the Construction bank account by Mr. Markus which put the corporation in the position of not being able to meet its liabilities;

c) The admission by Mr. Markus on his out of court cross-examination that following the termination of Construction's contract with Properties in September 2022, Construction had no sources of revenue to pay its liabilities, and was therefore, unable to pay creditors generally; and

d) The CRA HST liability in excess of $2,000 as at the date of the filing of the Application, which was subsequently reassessed on December 12, 2022 in the amount of $71,254.72.

[76] The jurisprudence is clear that if the applying creditor provides evidence of other unpaid debts along with their own, an act of bankruptcy has been established (see: Re Cappe, [1993] O.J. No. 775 (Ont. Gen. Div.) at para. 22, affirmed, 1994 CarswellOnt 2604 (ONCA); Re Mastronard, at para. 24). In that instance, Lema J. in ATO Financial v. Coredent Partnership, 2020 ABQB 587, canvassed the authorities and concluded that one other creditor is usually sufficient to demonstrate that the debtor has ceased to meet their liabilities generally as they become due. I agree with this conclusion.

[77] For its part, Construction submits that the HST debt, although admitted, is not to be considered in any assessment of its failure to meet its liabilities generally within the stipulated six-month period. Its position is based on two submissions. Firstly, Construction argues that because Properties acted as Construction's "financial administration", it was responsible to pay the HST liability. Secondly, Construction relies on the decision of Dallas/North Group Inc., [1999] O.J. No. 5744, ("Dallas"), to urge this court to find that the HST is irrelevant.

[78] Whether or not Properties may have been Construction's "financial administration" (whatever that may be), it was the responsibility of the directors of Construction, of whom Mr. Markus is one, to ensure that the corporate returns were filed and the taxes paid. Furthermore, I find that Construction's reliance on the ruling in Dallas is misguided. In that case, the court found that the principal of the corporate debtor had no knowledge of the tax liability during the six-month period prior to the date of the application, and therefore, could not have addressed it. That is not this case. On Mr. Markus' own evidence, he recounts a telephone call with the CRA a few weeks prior to his affidavit, sworn December 7, 2022, in which he was advised of the precise amount of the $2,432.55 HST liability.

[79] Even if the debt owing to the CRA is ignored, there are three "special circumstances" in which the courts have granted a bankruptcy order pursuant to s. 43 because of a debt owed to one creditor. These circumstances are as follows:

a) a creditor is the only creditor of the debtor, and the debtor has failed to meet repeated demands of the creditor within the prescribed six-month period;

b) where the debt is significant and fraud or suspicious circumstances are present in the way the debtor has handled their assets which make it imperative that the processes of the BIA be set in motion immediately for the protection of the whole of the class of creditors; or

c) the debtor admits that they are unable to pay their creditors generally without identifying the creditors.

(see: Re Valente, 2004; Blanco Oy Ltd. v. Inside The Box Inc., 2015 ONSC 277, at paras. 5-8)

[80] In this case, I am satisfied that the second and third special circumstances have been established. Mr. Markus has handled Construction's assets suspiciously by withdrawing $150,000 from the corporation's bank account without director or shareholder approval for the conflicting purposes of initially holding the funds until a motion was brought by him to determine his entitlement to the money and the subsequent purpose of paying tax and trade liabilities. Neither of Mr. Markus' stated purposes have come to fruition.

[81] In the face of such contradictory and unrealized purposes, my view is that the creditors of Construction are entitled to the protection and management of the funds by a trustee in bankruptcy as an officer of this court.

[82] Furthermore, Mr. Markus has admitted in his out of court examination that with the termination of Construction and Properties contractual relationship, Construction is unable to pay its creditors generally.

[83] In conclusion, I am satisfied that the debt or debts owing by Construction to Properties, or its creditors generally, amount to $1,000 and that Construction has committed an act of bankruptcy within the six months preceding the filing of the Application, and therefore, Properties has met the test for a Bankruptcy Order pursuant to s. 43(1) of the BIA.

Should Discretion be Exercised to Dismiss the Application Pursuant to s. 43(7) of the BIA

[84] I am also satisfied that there is no other sufficient reason that would justify the exercise of this court's discretion pursuant to s. 43(7) to dismiss the Application.

[85] In Medcap Real Estate Holdings Inc. (Re), 2022 ONCA 318, at para. 14, the Court of Appeal made clear that notwithstanding the mandatory language of s. 43(7) of the BIA, the power to dismiss an application for bankruptcy is discretionary. However, the onus rests on the debtor to lead evidence sufficient to establish that it is solvent. To be sufficient such evidence must indicate the financial position of the debtor and this requires that financial accounts or statements be submitted (see: 1719108 Ontario Inc. c.o.b. as Zoren Industries, 2024 ONSC 909, at para. 81).

[86] Construction has led no such evidence. Accordingly, there is insufficient cause in this case to justify the exercise of my discretion to dismiss the application pursuant to s. 43(7).

Properties' Alleged Improper Purpose of the Bankruptcy Application

[87] Construction submits that Properties brought the Application to avoid paying its debts to its related corporation, to circumvent a judgment in action no. CV-23-275, and to intimidate Mr. Markus with the purpose of removing him as a director and shareholder of Construction without compensation. Construction therefore submits that the Application should be dismissed.

[88] I am unable to accept the submission.

[89] Without reaching any conclusion as to the success of Properties' defence to the amount claimed, I am of the view that Properties' defence is on its face not without merit. Additionally, it does not escape me that Properties delivered a statement of defence to Construction's claim for unpaid services and materials notwithstanding that action no. CV-23-275 was stayed by the provisions of the BIA unless leave was otherwise granted of which I see no indication on the record.

[90] Further, the issuance of an application for bankruptcy some four months after the rejection of Properties' offer to buy out Mr. Markus' interest in Construction for what Properties understood Construction's outstanding indebtedness to be does not equate to a finding that the Application was intended as an intimidation tactic to bring Mr. Markus to his knees to sell his interest for less than fair value. Something more is required; most particularly in circumstances where Mr. Markus withdrew $150,000 from Construction's account at a time when the corporation needed the funds to satisfy its liabilities generally. In my view, if any one event precipitated Properties' Application, it was the misguided withdrawal of the funds from Construction's account by Mr. Markus. The withdrawal of funds prompted Properties to fund Construction's cash flow deficiency until it was no longer prepared to do so.

[91] I therefore find that the Application was not filed by Properties for an improper purpose.

Disposition

[92] For all the above reasons, the Application is allowed.

[93] An order will issue adjudging Construction to be bankrupt. Pollard is qualified and is appointed to act as trustee in bankruptcy.

[94] Order to go in accordance with these Reasons.

Justice M. Valente

Released: October 15, 2025