Canada Case Law

Structured Annuity Solutions LLC v. Zane

Court

Supreme Court of British Columbia

Leave to discontinue was granted because the countervailing interests against discontinuance were insufficient: denying discontinuance would force an unworkable adjourned trial given unresolved internal disputes over control of SAS; the JVA and related documents were produced late and their authenticity was doubtful; corporate records show Michael remains sole managing member of SAS; there is a history of abusive process and unpaid cost orders by opposing parties; and the prejudice to the defendant and TCC from continuing litigation outweighed prejudice to OM and Greg. Consequently the court…

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• Discontinuance
• Certificate of pending litigation
• Joint venture agreement
• Power of attorney
• Security for costs
• Abuse of process

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Atlantic Sea Cucumber Ltd. (Re)

Court

Supreme Court of Nova Scotia

On the balance of probabilities the advances from AGAH were debt not equity and the 2018 transactions were 'proper' under s.137; however the 2018 security only covered the two identified PIDs and 'equipment' (excluding serial-numbered goods and other intangibles) as of January 2, 2018; the 2023 recorded documents cannot be read to perfect or expand the 2018 security and are void against the Trustee under s.95 BIA, and in any event the 2018 security had been 'spent' such that post-2019 advances were not secured; accordingly AGAH is an unsecured creditor of ASC.

Source excerpt

• Related-party transactions
• Debt versus equity characterization
• Proper transaction (s.137 bia)
• Equity claim (s.140.1 bia)
• Preferential transfer (s.95 bia)
• Perfection and registration

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Puppet Killer Productions Inc. v. IndustryWorks Studios Inc.

Court

Supreme Court of British Columbia

The court dismissed the respondent’s application to set aside a second post-judgment garnishing order, holding the statutory affidavit contained all required disclosure.

• Post-judgment garnishment
• Garnishing order
• Priority of secured creditor
• Disclosure obligations in garnishment applications
• Set aside for material non-disclosure
• Court order enforcement act s.3(2)

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IE CA 3 Holdings Ltd. v. NYDIG ABL LLC

Court

British Columbia Court of Appeal

Court of Appeal set aside a fraudulent conveyance declaration over hashpower transfers, finding NYDIG had known and accepted the business model before lending.

• Interpretation of fraudulent conveyance act
• Badges of fraud and rebuttable presumption
• Oppression remedy (s.227 bca)
• Substantive consolidation
• Parent guarantees and inter-company arrangements
• Priority of security and collateral

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In the Matter of the Bankruptcy of De Beers Diamond Jewellers (Canada) Ltd.

Court

Supreme Court of British Columbia

Bankruptcy appeal dismissed. The Court upheld the trustee’s partial disallowance of DB UK’s claim, found no fresh-evidence basis, and found no palpable and overriding error.

• Consignment
• Security interest
• Proof of claim disallowance
• Fresh evidence (palmer)
• Standard of appellate review
• Bankruptcy-appeal

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9806881 Canada Corp. v. Swan

Court

Court of Appeal for Ontario

The Court found no ambiguity in its earlier decision, concluded the application judge's order must be set aside because errors affected the determination of the appellants' lien rights and the validity of the PPSA registration, maintained that the appellants have a possessory lien over the aircraft until further order, and remitted the intertwined issues of repair charges and storage/rental costs to the Superior Court for determination.

Source excerpt

• Possessory lien
• Ppsa registration validity
• Remittal for trial
• Storage and rental charges
• Repairs
• Procedural directions

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Canadian Imperial Bank of Commerce v. Zaynluke Restaurant Ltd.

Court

Supreme Court of Nova Scotia

The defence disclosed no basis for resisting CIBC's claim because the credit agreement and guarantees made the debt payable on demand, CIBC validly demanded payment, the defendants did not repay, no genuine issue of material fact remains and the defendants' good faith argument was not pleaded or material; summary judgment for CIBC is warranted and the defence is struck.

Source excerpt

• Demand loan
• Guarantee
• Breach of contract
• Summary judgment
• Good faith contractual performance
• Security agreement

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Canada v. Bezan Cattle Corporation

Court

Federal Court of Appeal

For purposes of SFSA s.31 the term 'farmer' means a mortgagor in the sense of a person who has granted a mortgage over farm land (or falls within the specific inclusions in the SFSA definition); it does not extend to persons who merely grant security in personal property (chattel mortgages). Because there was no evidence Bezan Cattle had granted a mortgage over farm land, SFSA s.31 did not apply and the Federal Court erred in dismissing the claim against the individual Bezans; summary judgment against the Bezans was properly entered on the record; the cross-appeal challenging summary judgment…

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• Summary judgment
• Subrogation
• Guarantee formalities
• Mortgage vs chattel mortgage
• Interpretation of 'mortgagor'/'farmer'
• Duress

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The9 Limited v. Skychain Technologies Inc.

Court

Supreme Court of British Columbia

The court granted summary judgment for The9 and 1111, holding clause 6.3 did not limit their remedies after Skychain failed to deliver the Birtle facility. The receivership application was dismissed.

• Debentures
• General security agreement
• Contract interpretation
• Liquidated damages
• Specific performance
• Prejudgment garnishment

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Smithe Residences Ltd. v. Boffo Investment Corp.

Court

Supreme Court of British Columbia

The court refused summary dismissal of 4 Corners’ claim, finding triable issues about assignment, privity, and the nature of the agreement. It ordered $15,000 security for costs.

• Assignment of rights
• Privity of contract
• Personal property security act s.41(9)
• Summary dismissal (rule 9-6)
• Security for costs
• Personal services vs profit-sharing contracts

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