Steven Bellissimo

The Court of Appeal for Ontario dismissed an appeal from a summary judgment that set aside two transactions by a bankrupt: the transfer of his 50% interest in his residence to his wife as an undervalue transfer and fraudulent conveyance, and the transfer of shares in a corporation to a non-arms length creditor as an improper preference.

The appellants argued the claims were time-barred under the Limitations Act, 2002, and constituted an abuse of process.

The Court of Appeal upheld the motion judge's findings, confirming that the limitation period for the Trustee's claims began upon the Trustee's appointment and that the amended statement of claim did not introduce a new cause of action.

The court also rejected the abuse of process argument as speculative.

A cross-appeal on costs by the Trustee, seeking substantial indemnity, was also dismissed, with the court deferring to the motion judge's assessment of partial indemnity costs.

Following a successful summary judgment motion setting aside transfers at undervalue, the Trustee in Bankruptcy sought substantial indemnity costs, including pre-litigation costs, and a vesting order.

The court awarded partial indemnity costs, declining to award pre-litigation costs or substantial indemnity costs as the defendants' conduct was not reprehensible.

The court also approved the inclusion of a vesting order in the judgment, finding it to be a natural corollary to the order setting aside the transfers under the Bankruptcy and Insolvency Act.

The Bondfield Group, a major construction company, sought CCAA protection due to insolvency, over $1 billion in active contracts, and over 200 lawsuits.

The application was unopposed and resulted from extensive stakeholder negotiations.

The court granted an initial order for CCAA protection, including a stay of proceedings, approval of a tailored $8 million Debtor-in-Possession (DIP) facility funded by Zurich Insurance, an Administration Charge for professional fees, and a Directors' Charge for $3 million (excluding John Aquino).

The court emphasized the public interest in completing critical infrastructure projects and the preference for CCAA over receivership to preserve enterprise value.

The plaintiffs, an exotic car rental company, sued the renter and an unauthorized driver after a rented Aston Martin was destroyed in a collision.

The unauthorized driver's insurer moved for summary judgment to dismiss the action against the driver, relying on the no-fault property damage regime under s. 263 of the Insurance Act.

The plaintiffs also moved for summary judgment against the renter for breach of contract.

The court granted the insurer's motion, dismissing the action against the driver because s. 263(5)(a) strictly bars property damage claims against anyone other than the insured's own insurer.

The court dismissed the plaintiffs' summary judgment motion against the renter, finding that s. 263(5)(a.1) requires a finding of fault or negligence, which involved genuine issues of material fact requiring a trial.

A freight forwarding company sued a secured creditor and related individuals for unpaid shipping invoices after the debtor companies entered receivership.

The plaintiff alleged that an employee of the debtor companies acted as an agent of the secured creditor and assured that outstanding invoices would be paid if shipping continued.

The court held that the employee was not an agent of the secured creditor and that no actual or ostensible authority had been established.

Claims based on agency, negligent misrepresentation, breach of trust, and fiduciary duty failed with respect to pre‑receivership invoices.

However, an email from the secured creditor’s representative constituted a contractual promise regarding post‑receivership invoices, making the creditor liable for those amounts.

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.

The court considered whether a defendant whose statement of defence had been struck and who was noted in default could nonetheless make submissions at trial regarding the plaintiff’s entitlement to damages.

The plaintiff argued that allowing submissions would constitute an abuse of process, relying on Rule 19.02 of the Rules of Civil Procedure.

The court applied authority interpreting Rule 19.02 and held that making oral submissions does not constitute “taking another step” in the action.

Accordingly, a defendant noted in default is not barred from attending a motion or hearing and making submissions.

The court permitted the defendant to make submissions and directed the parties to exchange further written submissions.

The defendant bank brought a motion for summary judgment dismissing claims for negligence, breach of contract, and conversion arising from a corporate employee’s long-running cheque forgery scheme.

The bank relied on verification and limitation of liability clauses in a financial services agreement requiring the customer to review statements and report errors within 30 days.

The court held that the contractual provisions, the surrounding factual matrix, and the interaction with s. 48 of the Bills of Exchange Act raised genuine issues of fact and mixed fact and law.

Issues included the interpretation of the agreement, alleged representations made by bank officials, the plaintiff’s internal fraud controls, and whether suspicious circumstances should have alerted the bank.

As a result, the court found the matter unsuitable for summary judgment and required a trial.