Sean N. Zeitz

The appellant advanced funds to finance the cost of repairs by third parties to an aircraft owned by the respondent.

It brought a motion for a declaration that it had a non-possessory lien under the Repair and Storage Liens Act.

The motion judge dismissed the claim, finding the appellant was not a 'repairer' under the Act.

On appeal, the Court of Appeal upheld the decision, confirming that advancing funds to finance repairs does not constitute making a repair or bestowing skill, labour, or money on the aircraft.

The appeal was dismissed.

The moving party brought a motion to set aside an ex parte order that required him to apply for a Certificate of Appointment as Estate Trustee for his late father's estate.

The responding party, a foreign judgment creditor, had obtained the ex parte order to facilitate the enforcement of a $44 million US judgment against the estate.

The court found that while the responding party had made adequate disclosure on the ex parte motion, it lacked standing to seek an order for assistance under the Rules of Civil Procedure because it did not yet have a crystallized, domesticated judgment in Ontario.

The ex parte order was therefore set aside.

The applicant sought to continue an interim injunction over an aircraft owned by the respondent, an agency of the Kingdom of Swaziland, claiming a non-possessory lien under the Repair and Storage Liens Act for funds advanced for refurbishment.

The court found the respondent was not immune under the State Immunity Act due to the commercial activity exception.

However, the court dismissed the motion, finding the applicant was not a 'repairer' under the Act, the limitation period had expired, and there was no irreparable harm to justify an injunction.

A motion by proposed intervenors was also dismissed.

The aircraft was ordered released to the respondent, with a seven-day stay pending appeal.

A bankruptcy trustee sought relief under s. 96 of the Bankruptcy and Insolvency Act in relation to a transfer by an insolvent debtor of her 50% interest in a Toronto property to her business associate.

The court held, on the record before it, that the transferor and transferee were not dealing at arm's length and that one of the transferor's intentions was to defeat her principal creditors, given the surrounding circumstances, the impending bankruptcy, and the treatment of the asset.

However, the court found the valuation evidence insufficient to determine the fair market value of the property at the transfer date and therefore could not decide whether the transaction was a transfer at undervalue.

A summary trial was ordered limited to valuation.

The applicants sought leave to appeal a Superior Court judge's order that overturned a Master's decision requiring the respondent to pay security for costs.

The Master had found the respondent was ordinarily resident outside Ontario and had insufficient assets.

The Superior Court judge reversed this, finding the respondent's directors and officers resided in Ontario and it had sufficient assets in a trust account.

The Divisional Court refused leave to appeal, holding that the Superior Court judge correctly applied the corporate residency test to the specific facts and that the issues did not raise matters of public importance warranting leave.

Following a successful appeal, the court received submissions regarding the costs of the proceedings below before the Registrar in Bankruptcy and the Superior Court.

The parties had previously agreed to fix those costs at $20,000 when the respondent was successful.

The Court of Appeal found no reason to depart from the agreed amount or to deny the successful appellant its costs, ordering the respondent to pay $20,000 inclusive of disbursements and HST.

The appellants appealed a Master's order dismissing their action for delay at a status hearing and brought a motion to introduce fresh evidence.

The individual appellant had been petitioned into bankruptcy, and the Trustee had sought directions from the Commercial Court regarding the action.

The Master refused to adjourn the status hearing and dismissed the action due to a long pattern of delay and non-compliance with previous orders.

The Divisional Court dismissed the motion to introduce fresh evidence, finding it could have been obtained prior to the hearing with reasonable diligence.

The appeal was also dismissed, as the Master correctly applied the test for dismissal for delay and made no palpable and overriding error.

The applicant appealed an order requiring it to post $175,000 as security for costs under r. 56.01 of the Rules of Civil Procedure.

The motion judge found that the master made palpable and overriding errors in concluding that the corporation was ordinarily resident outside Ontario and lacked sufficient assets in the province.

Evidence showed that the corporation’s directors and officers resided in Ontario and that it held approximately $1.2 million in a trust account in Ontario that was available to satisfy potential costs.

The court held the master misapprehended the evidence and drew unwarranted adverse inferences regarding the accessibility of the trust funds.

The appeal was allowed and the security for costs order set aside.

In a bankruptcy appeal arising from a disallowed proof of claim, the court considered when service of a notice of disallowance became effective for purposes of the 30-day appeal period under s. 135(4) of the Bankruptcy and Insolvency Act.

Although the trustee's notice was actually delivered to the law firm identified for correspondence on April 17, 2012, it was addressed to the creditor rather than care of counsel, and there was no acceptance of service by the law firm.

The court held that resort had to be made to the deeming provisions in the Rules of Civil Procedure, making service effective on the fifth day after mailing.

The notice of appeal filed on May 18, 2012 was therefore in time.

The appeal was allowed, the Superior Court order set aside, and the Registrar's order restored.

The trustee in bankruptcy appealed a motion judge's dismissal of its claim for half the proceeds of a fire insurance policy on the bankrupt's former matrimonial home, and the allowance of the bankrupt's former spouse's claim for 100% of a debt she paid as a joint guarantor.

The former spouse cross-appealed the dismissal of her claim for another guaranteed debt based on the rule against double proof.

The Court of Appeal allowed the trustee's appeal regarding the insurance proceeds, finding no evidence of a matrimonial settlement giving the spouse sole ownership.

The Court dismissed the trustee's appeal regarding the first guarantee, upholding the motion judge's finding that the spouse's 'just proportion' was 100% due to pressure and lack of understanding.

The Court also dismissed the cross-appeal, affirming that the rule against double proof prevented the spouse from claiming the second guaranteed debt while the principal creditor also claimed it.

The defendant moved to discharge a certificate of pending litigation registered against his matrimonial home.

The plaintiff bank agreed the certificate should be removed after discovering the alleged fraudulent conveyance had already been reversed, but sought a charging order against the defendant’s interest in the property as a term of discharge.

The court found the bank had a strong prima facie claim under a personal guarantee for corporate debt and that circumstances surrounding property transfers created a real risk the defendant might render himself judgment‑proof.

The court also rejected allegations that the bank had obtained the original certificate through material misrepresentation on the without‑notice motion.

The certificate of pending litigation was discharged but replaced with a limited form of security akin to a Mareva injunction.

The plaintiffs brought an urgent motion for interim injunctive relief seeking possession of restaurant premises allegedly purchased through a share purchase agreement.

The defendants argued the motion was barred by res judicata and raised a defence of non est factum, asserting the principal defendant did not understand the English-language transaction documents.

The court found the motion was not barred because a prior dismissal was without prejudice and the plaintiffs had since commenced an action and assembled extensive documentary and examination evidence supporting the transaction.

Applying the test for interlocutory injunctions from RJR‑MacDonald Inc. v. Canada (Attorney General), the court held that there was a serious issue to be tried, that the plaintiffs would suffer irreparable harm without relief, and that the balance of convenience favoured preserving the business assets and premises pending trial.

Interim injunctive relief was granted compelling delivery of possession and restraining competing business activities.

The defendant brought a motion for summary judgment dismissing a property action asserting a prescriptive easement and seeking judgment on its counterclaim.

The plaintiffs did not appear and filed no responding evidence.

Applying the summary judgment test from Combined Air Mechanical Services v. Flesch, the court found there was no genuine issue requiring a trial regarding ownership of the alleged dominant tenement or the asserted easement rights.

The evidence established that the plaintiffs neither owned nor occupied the relevant property and had not used the lands continuously for the statutory period required under the Real Property Limitations Act and the Land Titles Act.

The action was dismissed, judgment was granted on the counterclaim declaring the defendant’s exclusive ownership, and a permanent injunction issued restraining the plaintiffs from using the property.

A former spouse sought to advance a proof of claim in the bankruptcy of her husband after paying amounts under personal guarantees of corporate debts owed to financial institutions.

The court considered the rule against double proof in bankruptcy, which prevents multiple claims in respect of the same underlying debt so as to preserve pari passu distribution among unsecured creditors.

The court held that the claimant could not advance a proof of claim relating to amounts paid to a bank where the bank had not recovered its debt in the bankruptcy beyond the payment she made, as this would constitute double proof.

However, the court permitted a claim for the full amount paid under a separate guarantee to another creditor whose debt had been fully satisfied.

The court also rejected the trustee’s attempt to recover household contents from insurance proceeds, accepting evidence that the separated spouses had agreed those assets would belong to the claimant.

The appealing party, Your Business Partner Inc., appealed the Trustee's disallowance of its proofs of claim in the proposal of Dr. Thomas Bell.

The Trustee argued the appeal was filed one day late based on the actual date the registered mail was received.

The court held that under the Rules of Civil Procedure, service by mail is deemed effective on the fifth day after mailing, making the appeal timely.

The court also provided preliminary views that the Trustee's perfunctory disallowance of complex claims was inappropriate and contrary to the remedial intent of the Bankruptcy and Insolvency Act.

The plaintiff moved for judgment under Rule 49.09 to enforce a $35,000 settlement agreement reached with the defendants regarding a dispute over recruitment services.

The defendants argued the settlement should not be enforced due to the plaintiff's alleged bad faith in failing to disclose it had hired two candidates presented by the defendants.

The court found the plaintiff had no knowledge the candidates were referred by the defendants and made no misrepresentations.

Applying a two-step analysis, the court concluded a binding agreement existed and there was no good reason not to enforce it.

The motion was granted and the settlement enforced.

A creditor brought a motion for summary judgment seeking to set aside a transfer of a debtor’s interest in the matrimonial home to his spouse as a fraudulent conveyance under the Fraudulent Conveyances Act.

The debtor had personally guaranteed a corporate loan and transferred his joint interest in the home to his spouse for nominal consideration during the period when the corporation was seeking loan accommodations.

The court found multiple badges of fraud, including the non-arm’s-length relationship, lack of consideration, timing of the transfer, and the effect of placing the debtor’s only significant asset beyond the reach of creditors.

The court held that the conveyance was made with intent to defeat, hinder, delay, or defraud creditors and that no genuine issue required a trial.

Summary judgment was granted setting aside the transfer as void against the creditor.

The appellant, an unsecured judgment creditor of the respondent's husband, appealed an order setting aside the transfer of the matrimonial home from the respondent to her husband.

The motion judge had found the transfer was void due to undue influence and, alternatively, that the husband held the property in trust for the respondent.

The Court of Appeal allowed the appeal in part, holding that the finding of undue influence could not stand because it was not pleaded, depriving the appellant of procedural fairness.

However, the Court upheld the finding that the respondent did not intend to gift the property and held an interest by way of resulting or constructive trust, remitting the matter to determine the extent of that interest.

The appellant appealed a summary judgment finding her personally liable to the respondent bank under section 100 of the Bankruptcy and Insolvency Act.

The motion judge found that the appellant's company and her father's bankrupt company engaged in a non-arm's length transaction for less than fair market value, and that the appellant was privy to the transaction.

The Court of Appeal dismissed the appeal, holding that the appellant, as the sole principal and controlling mind of her company, was privy to the transaction because she had knowledge of it and benefited from it.

The respondent's cross-appeal for substantial indemnity costs was also dismissed.

The parties arbitrated their family law dispute, resulting in an award requiring the husband to pay an equalization payment out of his share of the proceeds from the sale of the matrimonial home.

The husband subsequently made an assignment in bankruptcy.

The motion judge incorporated the arbitration award into a court order and granted the wife priority over the husband's unsecured creditors, finding the award created an equitable trust.

The motion judge also ordered the transfer of the husband's bankruptcy-exempt RRSP to the wife.

The Court of Appeal allowed the appeal, holding that the arbitration award did not effect a division of property or impose an equitable trust or assignment that would defeat the bankruptcy scheme.

The Court also set aside the RRSP transfer, as no such relief was claimed in the arbitration and the motion judge erred in using enforcement proceedings to grant a new proprietary remedy.