W. Jaskiewicz

The moving party, Gaspare Caruso, brought a motion to annul the bankruptcy of 1947755 Ontario Ltd. under s. 181(1) of the Bankruptcy and Insolvency Act.

The assignment in bankruptcy had been made by John Hanna Nissan amidst a protracted dispute over corporate control.

The court found that the corporation was not insolvent at the time of the assignment, as its assets exceeded its liabilities and it could have met its obligations with a modicum of effort.

Furthermore, the court held that the assignment was an abuse of process, strategically timed to avoid scheduled examinations in the ongoing litigation.

The motion to annul the bankruptcy was granted.

The plaintiffs brought a motion for an interim interlocutory injunction to stay the election of the Board of Directors of the defendant religious temple pending the adjudication of a broader motion.

The defendants challenged the plaintiffs' standing, arguing they were not members of the temple.

The court found that at least one plaintiff had standing based on uncontradicted evidence of her long-standing devotion and the denial of membership application forms.

Applying the RJR-MacDonald test, the court granted the injunction, finding a serious issue to be tried, irreparable harm from the potential loss of the right to vote, and that the balance of convenience favoured maintaining the status quo.

The third party moved to stay a third party claim on the basis of a forum selection clause in a guarantee agreement governed by German law that designated the courts of Hannover, Germany as the competent forum.

The defendants argued the claim should proceed in Ontario alongside the main action concerning breaches of warranty under a share purchase agreement.

Applying the “strong cause” test from Supreme Court of Canada jurisprudence, the court held that forum selection clauses in international commercial contracts are presumptively enforceable unless exceptional circumstances justify departure.

The defendants failed to demonstrate such circumstances, as the possibility that witnesses and related litigation were located in Ontario was reasonably contemplated when the parties agreed to the clause.

The third party claim was stayed in favour of the Hannover courts.

The applicants, who invested approximately $15 million in the respondent companies, sought the appointment of a receiver following defaults on loans and breaches of a forbearance agreement.

The respondents had agreed to the appointment of a monitor and provided consents to a receivership held in escrow, but subsequently failed to provide the monitor with unfettered access to financial records, delayed adding the monitor as a bank signatory, and made preferential payments to the principal's family members.

The court found that the respondents materially breached the forbearance agreement and side letter, making it just and convenient under section 101 of the Courts of Justice Act to appoint a receiver over all three respondent companies.