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 Trustee in Bankruptcy brought a summary judgment motion to set aside two transactions made by the bankrupt prior to bankruptcy: the transfer of his half-interest in a residence to his spouse, and the transfer of preferred shares to a family-owned company.

The court found both transactions were transfers at undervalue and made with the intent to defeat creditors, constituting fraudulent conveyances and preferences under the Bankruptcy and Insolvency Act and the Fraudulent Conveyances Act.

The defendants' cross-motion arguing the claims were statute-barred was dismissed, as the limitation period commenced upon the Trustee's appointment.

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.

The applicant, a paralegal, was sued in Small Claims Court by the respondent for the return of fees.

After the trial was adjourned multiple times, the applicant sought a further adjournment, which was refused.

He then commenced an application for judicial review of that refusal, which was dismissed by the Registrar for failure to perfect.

The applicant's motion to set aside the Registrar's order was also dismissed.

The applicant subsequently failed to file an application for leave to appeal within the prescribed time and brought a motion for an extension of time.

The Divisional Court dismissed the motion, noting the applicant's lack of diligence and that he had already achieved the practical result of adjourning his 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 plaintiff sued the defendant bank for losses resulting from forged cheques due to employee dishonesty.

The bank's motion for summary judgment to dismiss the action based on the banking contract was refused.

The bank sought leave to appeal the refusal.

The Divisional Court dismissed the motion for leave to appeal, finding that while there may have been good reason to doubt the correctness of the motion judge's decision, the issues involved contractual interpretation specific to the parties and did not raise matters of public importance.

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.

The appellant appealed an order fixing the trustee's remuneration and declining to appoint a substitute trustee.

The Court of Appeal dismissed the appeal, finding that s. 39(5) of the Bankruptcy and Insolvency Act provided the motion judge with the authority to fix the remuneration.

The court also agreed that there was no basis to appoint a substitute trustee, as the appellant was permitted and capable of carrying a claim against the bankrupt.

The appeal was dismissed with costs.

The appellants appealed a trial judgment which found that although the respondent lawyers were negligent, their negligence caused no actual loss to the appellants.

The appellants argued the trial judge ignored evidence that settlement funds were a loan from their mother.

The Court of Appeal found no palpable and overriding error in the trial judge's conclusion that there was no credible evidence of a loan, and that the appellants would have proceeded with the settlement regardless of the lawyers' negligence.

The appeal was dismissed.

The Crown appealed a summary conviction appeal court's order requiring it to pay $12,000 in costs to the respondent.

The respondent had successfully avoided a minimum jail sentence for impaired driving after the summary conviction appeal court stayed the sentence, despite finding the minimum penalty provision constitutional.

The summary conviction appeal court awarded costs against the Crown, characterizing the appeal as a test case.

The Court of Appeal allowed the Crown's appeal and set aside the costs order, finding that the appeal was not a test case as the respondent had a vital personal interest in avoiding incarceration, and there was no Crown misconduct to justify the award.

The appellant appealed a summary judgment decision.

The Court of Appeal dismissed the appeal, finding no evidence that the respondents initiated the proceedings and no issue requiring a trial.

Costs were fixed at $5,000.

The appellant appealed a judgment finding that her debt arose from fraud and survived her discharge from bankruptcy.

The Court of Appeal dismissed the appeal, holding that the motion judge was entitled to entertain the motion for judgment under Rule 20.01(1) and that the appellant put forward no evidence to contradict the deemed admissions of fraud and fraudulent misrepresentation under Rule 19.02(1)(a).

The appellants challenged a trial judgment rejecting a claimed prescriptive easement over a commercially developed parcel of land.

The Court of Appeal held the use of the alleged easement was permissive, not adverse, because the relevant knowledge and consent resided in the same individual personally and as the directing mind of the corporate owner during the relevant period.

The court further held no easement could arise by permission because any such permission ended when ownership of one of the properties changed in 1983.

The appeal was dismissed with costs.

The applicant was injured in a motor vehicle accident and received weekly statutory accident benefits from the insurer as a homemaker under section 13 of the Schedule.

The insurer terminated benefits on the basis that the applicant was fit to resume her household duties.

The arbitrator found that the applicant was primarily a homemaker at the time of the accident, but concluded based on medical records, functional abilities evaluations, and surveillance that she no longer suffered a substantial inability to perform her essential daily tasks.

The application for ongoing weekly benefits and a special award was dismissed, though the applicant was awarded her arbitration expenses.

The applicant union sought certification for a bargaining unit of carpenters employed by the respondent.

The respondent and the intervener union argued the application was untimely because a valid collective agreement already existed between them covering the employees.

The Board examined the intervener's membership evidence for the employees at the time the agreement was signed.

Although one employee was in arrears on dues and suspended from some privileges, the Board found he remained a member for the purpose of establishing representation entitlement.

Finding that the intervener represented a majority of the employees when the agreement was entered into, the Board held the collective agreement was valid and acted as a bar to the certification application.