Stewart Thom

In the context of CCAA proceedings, the applicants sought a Funding Order to compel Securitization Parties and other secured lenders to fund a $40 million wind-down of the remaining entities.

The court dismissed the motion for the Funding Order, finding that section 11.01(b) of the CCAA expressly prohibits orders requiring the further advance of money or credit.

Consequently, the court also declined to approve a Key Employee Retention Plan, as it was dependent on the unavailable funding.

The court did, however, grant a temporary sealing order for the KERP details and extended the stay of proceedings to November 29, 2024.

In the receivership of the Stateview entities, Tarion Warranty Corporation brought a motion seeking declaratory relief on behalf of purchasers who had paid deposits for pre-construction homes.

Tarion argued that the deposits were subject to an express or constructive trust and sought a remedial constructive trust to elevate the purchasers' priority.

The court dismissed the motion, finding that the purchasers had contractually subordinated their interests to secured lenders.

While an express trust existed for contracts with early termination provisions, the funds were not segregated.

The court declined to impose a remedial constructive trust, as doing so would improperly upset the priority scheme under the Bankruptcy and Insolvency Act.

The plaintiff bank brought a motion for summary judgment against the defendant guarantor on a personal guarantee and a collateral mortgage securing a corporate credit facility.

The defendant argued there were genuine issues for trial, including that the bank took excessive security, failed to advise him to obtain independent legal advice, and breached its duty of honest performance.

The court found no genuine issue requiring a trial, holding that the documentary evidence clearly established the terms of the security, the defendant was not owed a fiduciary duty, and the lack of independent legal advice did not invalidate the guarantee.

Summary judgment was granted in favour of the plaintiff.

The defendant appealed an Associate Judge's order dismissing its motion for security for costs against the foreign plaintiff.

The plaintiff, a Washington State corporation, sued for unpaid commissions and damages for breach of contract.

The Superior Court dismissed the appeal, finding that the Associate Judge applied the correct legal test from Yaiguaje by holistically considering the justness of the order, and made no palpable and overriding errors of fact in relying on the plaintiff's principal's undertaking to make personal funds available.

The defendant brought a motion seeking leave to compel the plaintiff to post $135,000 as security for costs under Rule 56.01(1)(a) and (d).

The plaintiff, an extra-provincial corporation, sued the defendant for $2.5 million for breach of contract regarding a unilateral reduction in sales commissions.

The court found the defendant met the initial onus under Rule 56.01(1)(d).

However, the court dismissed the motion, finding it would be unjust to order security because the plaintiff's principal undertook to make her personal investment account available to satisfy any costs award.

The applicants, a syndicate of lenders and various construction trades, sought declarations that the respondent surety could not rescind performance and payment bonds issued for a hospital redevelopment project.

The surety had discovered alleged fraud and collusion in the procurement process and commenced a separate action for rescission.

The applicants argued they were innocent third parties whose rights under the bonds could not be defeated by the alleged fraud of the principals.

The court dismissed the applications, finding that the applicants' rights were derivative of the principals and that rescission remained a possible equitable remedy that must be determined on a full factual record at trial.