Canada Case Law

Heliotrope Investment Corporation v. 1073650 Ontario Inc.

Court

Court of Appeal for Ontario

Leave to appeal was refused because the proposed grounds were not prima facie meritorious: the bankruptcy judge's oral rulings adequately addressed the live issues and permitted appellate review, no error in the propriety of appointing the receiver was identified, no prejudice from settlement of order language was shown, and no issue of general importance was raised.

Source excerpt

• Leave to appeal (s.193 bia)
• Appointment of receiver
• Adequacy of reasons
• Extension of time
• Standing
• Conflict of interest

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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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P.S. Sidhu Trucking Ltd. v. Elima Enterprises Ltd.

Court

Supreme Court of British Columbia

The court held that Sidhu Trucking bought the tipping table and crane in a receivership sale, found both were chattels rather than fixtures, and ordered their return plus damages against the Elima defendants.

• Fixtures vs chattels
• Ownership of personal property
• Sale of assets in receivership
• Detinue
• Specific performance vs damages
• Loss of profits

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Marvelous Mario's Inc. v. St. Paul Fire and Marine Insurance Co.

Court

Court of Appeal for Ontario

The Court held the trial judge correctly found the First Action losses were indirect and not covered by the policy and that the property claim in the Second Action was time-barred under the policy's one-year contractual limitation because the appellants knew or had means of knowing of their claim at the sale closing. The Court reversed the trial judge's application of a rolling limitation period to business interruption claims, finding no recurring contractual obligation to support a rolling limitation; therefore the Second Action was time-barred in its entirety. The appeal is dismissed and t…

Source excerpt

• Business interruption
• Contractual limitation period
• Rolling limitation period
• Coverage/indemnity
• Proximate cause
• Double recovery

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O’Regan Properties Limited v. Business Development Bank of Canada

Court

Supreme Court of Nova Scotia

On a motion to strike, affidavit passages that may constitute objective evidence of the surrounding circumstances cannot be struck solely under the parol evidence rule; paragraphs 17, 22 and 50 remain for the hearing so their factual nature and weight can be determined, paragraph 51 was conceded and struck, and paragraphs 42-44 and Exhibits Q, R and S are not covered by settlement privilege because they are unconditional assertions of position rather than communications made in furtherance of settlement.

Source excerpt

• Parol evidence rule
• Contract interpretation (factual matrix)
• Settlement privilege (without prejudice)
• Admissibility of affidavit evidence

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Forjay Management Ltd. v. Peeverconn Properties Inc.

Court

British Columbia Court of Appeal

Court of Appeal held the receiver’s disclaimer order was appealable as of right under the BIA, dismissed leave as unnecessary, and ordered the appeal expedited.

• Appeal jurisdiction under bia s.193
• Receiver disclaimer of pre-sale contracts
• Security for costs
• Stay of proceedings under bia s.195
• Construction of consumer protection legislation (redma)
• Bankruptcy-and-insolvency-appeals

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Carmel Cove Resort & Spa Inc. v. 0747825 B.C. Ltd.

Court

Supreme Court of British Columbia

Receiver’s claim over a failed resort sale was dismissed: no agency for alleged misrepresentations, but the buyer was entitled to termination for lack of timely written notice of court approval.

• Misrepresentation
• Condition precedent
• Contract formation
• Notice requirements
• Receiver sales
• Remedies and damages

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Holmes v. Schonfeld Inc.

Court

Court of Appeal for Ontario

Leave was required by the Monitor/Receiver and Discharge orders; appellants failed to establish a prima facie case of gross negligence or wilful misconduct (the requisite threshold given the contractual and court-ordered limitations), therefore leave is denied and the appeals are dismissed; BNG cannot pursue a crossclaim for contribution where the principal claimants cannot establish leave and BNG did not plead a free‑standing negligence claim.

Source excerpt

• Leave to sue a receiver
• Gross negligence
• Wilful misconduct
• Discharge order and releases
• Contribution and indemnity
• Monitor duties

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Royal Bank of Canada v. Aquattro Estates Limited Partnership

Court

Supreme Court of British Columbia

The court held that M.P.N. Holdings needed leave before amending its defence to allege improvident conduct by a court-appointed receiver under the receivership order.

• Leave to commence proceedings against receiver
• Amendment of pleadings
• Definition and scope of "proceeding" in receivership order
• Agency of receiver
• Receivership
• Civil-procedure

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Fifth Third Bank v. O'Brien

Court

Court of Appeal for Ontario

The appeal is dismissed because the Bank acted within its contractual rights and absent any contractual or equitable obligation to forbear the Bank was not required to continue financing MPI; the Bank's realization on its security was commercially reasonable and the alleged material alterations were authorized by the agreements, so the guarantors remain liable and summary judgment was properly granted.

Source excerpt

• Commercial reasonableness of realization on security
• Guarantor liability
• Material alteration of contracts
• Summary judgment procedure
• Lender's duty to forbear

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