Terry Corsianos

The appellant challenged a bankruptcy order and a related post-judgment Mareva order granted at the request of a court-appointed monitor holding a substantial judgment debt.

The court held the bankruptcy order was appealable as of right under s. 193(c) of the Bankruptcy and Insolvency Act and treated the Mareva order as a final order appealable under s. 6(1)(b) of the Courts of Justice Act in the circumstances.

On the merits, the court found no reversible legal or discretionary error in rejecting objections to the monitor’s authority, rejecting allegations of collateral purpose, and refusing dismissal or adjournment under ss. 43(7) and 43(10) of the Bankruptcy and Insolvency Act.

The court also upheld continuation of the Mareva relief as complementary to bankruptcy administration and dismissed the appeal with agreed costs.

This is a costs decision following the applicant's successful application for an order requiring the respondent to comply with its obligation under a commercial lease to provide audited statements and finding the respondent estopped from claiming rent prior to January 1, 2021.

The court awarded costs to the successful applicant, applying Rule 49.10 costs consequences based on an unaccepted settlement offer.

The court rejected the respondent's argument that the applicant's partial abandonment of certain relief claims warranted a reduction in costs, finding that the abandoned claims were no longer necessary once the respondent produced the required documents.

The court granted the Monitor's application to assign John Aquino into bankruptcy and continued the Mareva order against him.

The decision addresses the requirements for a bankruptcy order under the Bankruptcy and Insolvency Act, the discretion to dismiss or stay such an application, and the standards for continuing a Mareva injunction post-judgment.

The court found that John Aquino had committed an act of bankruptcy, was unable to pay his debts, and that there was no bona fide dispute with the Monitor.

The court also rejected arguments that the application was brought for a collateral purpose and found the continuation of the Mareva order appropriate.

The court considered whether the respondent landlord was required to provide audited statements of Additional Rent under a commercial lease, and whether the landlord was estopped from claiming rent for a period prior to January 1, 2021.

The court found that the lease unambiguously required audited statements, meaning statements verified by an independent accountant, and that the respondent had not fulfilled this obligation.

The court also found that the landlord was estopped from claiming rent for the period prior to January 1, 2021, due to a course of conduct and representations made to the applicant tenant, and ordered the landlord to provide audited statements and reimburse any overpayments.

The appellants, including the directing mind of two family-owned construction companies, participated in a false invoicing scheme that drained tens of millions of dollars from the debtor companies prior to insolvency.

The trustee in bankruptcy and monitor applied under s. 96(1)(b)(ii)(B) of the Bankruptcy and Insolvency Act to recover the false invoice payments as transfers at undervalue on the basis that the debtor companies intended to defraud, defeat, or delay creditors.

The Supreme Court held that insolvency is not a prerequisite to establishing fraudulent intent under s. 96(1)(b)(ii)(B), and that the directing mind's fraudulent intent was properly attributed to the debtor corporations.

The Court confirmed that the corporate attribution doctrine must be applied purposively, contextually, and pragmatically, and that the fraud and no benefit exceptions to corporate attribution do not apply in the context of s. 96 of the BIA because applying them would undermine the creditor protection purpose of that provision.

Appeal dismissed.

This is a costs endorsement following the dismissal of multiple appeals.

The Court of Appeal for Ontario had previously dismissed appeals brought by the appellants and invited submissions on costs.

The parties subsequently reached an agreement on costs.

The endorsement formalizes this agreement, ordering the appellant Lina Bertasiene to pay $7,500 in costs to the Kvyetko respondents, and appellants Lina Bertasiene and Singaras Bertasius to pay $14,700 for the appeal and an additional $5,000 for a fresh evidence motion to the Ilioukevitch respondents.

The Court of Appeal for Ontario heard appeals from summary judgments enforcing multiple mortgages against the appellants.

The appellants challenged the judgments on various grounds, including allegations of criminal interest rates, invalid mortgage registration, improper crediting of payments, and mortgage fraud, including a claim of forged signatures.

The Court dismissed all appeals, upholding the motion judge's findings that the mortgages were valid and enforceable, and that there was no genuine issue requiring a trial.

The Court also rejected a request to introduce new evidence (handwriting expert report) on appeal due to lack of diligence.

The appellant, Chang Jiu Chen, appealed a summary judgment that found his purported rescission of an Agreement of Purchase and Sale for a condominium unit invalid and constituted an anticipatory breach.

The appellant claimed a "material change" under the Condominium Act, 1998, due to uncompleted amenities (parkette and entry/exit gates).

The Court of Appeal upheld the motion judge's decision, ruling that the uncompleted amenities were statutorily excluded from the definition of "material change" and that the appellant's prior communications demonstrated an unwillingness to close, thus constituting an anticipatory breach.

The court also affirmed a good faith requirement for notices of rescission under the Act.

The appeal was dismissed, and costs were awarded to the respondent.

The appellant tenant sought leave to appeal and to set aside an arbitration award that determined the fair market base rent for a commercial lease renewal.

The court dismissed the application, finding no basis to set aside the award under section 46 of the Arbitration Act, as the arbitrator acted within his jurisdiction and the process was fair.

Furthermore, the court denied leave to appeal under section 45(1) because the appellant's grounds raised questions of mixed fact and law, primarily concerning contractual interpretation and factual findings, rather than extricable questions of law.

The moving parties (original respondents) sought a stay of execution of judgments totalling over $33 million, pending their application for leave to appeal to the Supreme Court of Canada.

The judgments were for transfers at undervalue under the BIA and CCAA.

The court applied the three-part test for a stay (serious issue, irreparable harm, balance of convenience).

The motion was dismissed because the moving parties failed to demonstrate irreparable harm, especially given the responding parties' undertaking not to distribute seized assets, and because no security was offered for the judgment.

The moving party, a director and disputed shareholder of the defendant corporation, sought leave under s. 246 of the Business Corporations Act to defend an action brought by the plaintiff for unpaid project management fees.

The motion was opposed by the plaintiff and other shareholders of the defendant corporation.

The court dismissed the motion, finding that the moving party failed to establish that he was acting in good faith or that defending the action was in the best interests of the corporation, given the disproportionate costs of litigation, the risks of an increased claim, and the opposition from other stakeholders.

Following reasons for judgment in two related applications regarding a commercial lease, the successful parties, The Tire Pit Inc. and Michael Goldlist, sought costs on a substantial indemnity basis.

The court found that the conduct of the unsuccessful parties did not rise to the egregious level required for substantial indemnity costs.

The court awarded partial indemnity costs, ordering Augend and Charles Bulmer jointly and severally to pay $36,000 to The Tire Pit Inc., and Augend to pay $31,000 to Michael Goldlist.

Augend, the new owner of a commercial property, brought an application seeking a declaration that the lease with the tenant, Tire Pit, had expired and seeking vacant possession.

Tire Pit brought a companion application seeking a declaration that it had validly exercised its option to extend the lease for another five years.

The court found that Tire Pit had personally delivered written notice of its intention to extend the lease to the former landlord at his home, more than six months before the lease expired.

Although the lease prescribed notice by registered mail or courier, the court applied the principle that actual notice by a no less advantageous method is valid where the lease does not strictly exclude other methods.

The court declared the lease validly extended and dismissed Augend's application.

The defendants brought a motion to dismiss the plaintiffs' action as an abuse of process, or alternatively to strike certain claims and consolidate the action with a related proceeding in Newmarket.

The court declined to dismiss the action as an abuse of process, finding it involved new parties and different claims.

However, the court struck the impugned claims for failing to plead material facts, granting the plaintiffs leave to amend.

The court also ordered the two actions to be consolidated or tried together to avoid inconsistent findings regarding a unanimous shareholders' agreement.

The Monitor of Bondfield Construction Company Limited and the Trustee in Bankruptcy of Forma-Con Construction brought applications under s. 96 of the Bankruptcy and Insolvency Act to recover tens of millions of dollars transferred out of the debtor companies through a false invoicing scheme and an alleged fund cycling scheme.

The court found that the payments made under the false invoicing scheme were transfers at undervalue made with the intent to defraud, defeat, or delay creditors, and held the participating respondents jointly and severally liable.

The court declined to apply the strict corporate attribution doctrine from Canadian Dredge, instead imputing the directing mind's fraudulent intent to the corporate debtors to fulfill the remedial purpose of s. 96.

The Monitor's claim regarding the fund cycling scheme was dismissed for lack of evidence that the transfers lacked consideration.

The plaintiffs brought a motion to find the Developer Defendants in contempt of multiple court orders, including a Mareva injunction.

The plaintiffs had invested $9,000,000 with the defendants, who allegedly misappropriated the funds and failed to provide a court-ordered accounting, disclosure, and contact information.

The court applied the three-part test for civil contempt and found the Developer Defendants intentionally breached the orders by failing to provide an accounting, failing to disclose documents, actively thwarting a real estate closing, and failing to provide vehicle information.

The Developer Defendants were found in contempt, with a sanctions hearing to follow.

This decision on a reference determined the distribution of net proceeds from the sale of a jointly purchased property between two cousins, Seyed (plaintiff) and Peiman (defendant).

Seyed sought an equal split, while Peiman claimed a larger share based on alleged lost opportunity costs, small claims court action costs, property management fees, general contractor fees, and a payment differential.

The court found that Seyed was not contractually obligated to obtain a mortgage and denied Peiman's claims for lost opportunity costs, property management fees, and late payment interest.

It partially allowed general contractor fees and allowed small claims court costs to be shared.

Ultimately, the court concluded that Seyed had not underpaid his required contribution.

The defendants brought a motion for summary judgment to dismiss the plaintiffs' action, which arose from a long-standing neighbour dispute involving allegations of assault, battery, defamation, and nuisance.

The defendants argued the claims lacked merit, noting that related criminal charges had been withdrawn, and that some claims were statute-barred.

The court dismissed the motion, finding that the withdrawal of criminal charges did not invalidate the civil claims, and that issues regarding the quantum of damages and limitation periods for continuing torts required a trial.

The appellant developer appealed two summary judgments ordering the return of deposits paid for commercial and residential condominium units in a development.

The respondents had sought to rescind the purchase agreements based on material changes to the development disclosed in revised disclosure statements.

After the developer's financial difficulties led to receivership, the receiver conveyed the units to a third party, making performance impossible.

The motion judge found the agreements were terminated through no fault of the purchasers and ordered return of deposits with interest.

The appellate court upheld both judgments, finding the purchasers had not breached the agreements and were entitled to relief under the contractual termination provisions.

This case involved three concurrent motions: Aviva Canada Inc. sought to strike portions of the defendants' statements of defence and counterclaims, while the defendants (1843538 Ontario Inc., Fady Rony Warda, Rony Amanuel Warda, and Michael Wetzel) sought to dismiss Aviva's claim under Rule 21 and Michael Wetzel also sought summary judgment under Rule 20.

The defendants argued that Aviva's claim should be precluded by the doctrine of ex turpi causa and/or as an abuse of process, including a civil equivalent of entrapment, stemming from Aviva's 'sting' operation involving intentionally damaged vehicles and fictitious insurance claims.

The court dismissed the defendants' motions to strike/dismiss Aviva's claim, finding it was not 'plain and obvious' that ex turpi causa or abuse of process applied to prevent Aviva's action for compensatory damages.

Wetzel's motion for summary judgment was also dismissed due to genuine issues for trial regarding liability and damages.

Aviva's motion to strike was granted in part, specifically striking an itemized list of repairs as evidence from Wetzel's pleading and striking allegations of civil entrapment from the Warda defendants' pleading, but otherwise dismissed.