On August 30, 2019, the Ontario Superior Court of Justice handed down its decision in Doyle Salewski Inc. v Scott 2019 ONSC 5108.

Although this lengthy decision covers many topics, one of interest relates to the "appropriate means" part of the discoverability analysis when a Trustee in Bankruptcy brings a claim for unjust enrichment.

Background

On July 31, 2019, the Ontario Court of Appeal rendered its decision in Ridel v. Goldberg, clarifying the interplay of the various provisions of the Limitations Act, 2002 at play in circumstances where judgment creditors are allowed to take proceedings in their own name pursuant to an order under the Bankruptcy and Insolvency Act.

The Facts

Seafood Shack Ltd v Alan Darlow [2019] EWHC 1567 (Ch)

A lease of restaurant premises was granted to a company that did not exist; there was no legal basis for correcting the lease, and the similarly-named company claiming rights was held to have none.

An IRA owner could not rely on a Florida exemption to shield his IRA account from creditors after engaging in prohibited acts of self-dealing with his IRA funds, the Eleventh Circuit held in Yerian v. Webber, 2019 WL 2610751 (11th Cir. June 26, 2019). The IRA owner, Keith Yerian, opened a self-directed IRA. The IRA was governed by two contracts.

On May 20, 2019, the US Supreme Court clarified that when a trademark licensor rejects a trademark license agreement in a Chapter 11 bankruptcy proceeding, the rejection does not rescind the use rights of the licensee under the license agreement. The decision resolved a circuit split on this issue between the First and Seventh Circuits. The Court held that the licensor’s rejection of the license agreement in bankruptcy has the same effect on the licensee’s rights as a licensor’s breach of the license agreement outside of bankruptcy.

In the recent decision of Edmonton (City) v Alvarez & Marsal Canada Inc., 2019 ABCA 109, the Alberta Court of Appeal has concluded that fees and costs incurred by a court-appointed receiver should have priority over all claims by secured creditors, including special liens in favour of municipalities for unpaid property taxes. This is an important decision for the insolvency bar and provides some much needed comfort to receivers that their fees and costs will be protected by the court-ordered charge.

The Decision

The Defendant was a dentist who had executed a personal guarantee on July 7, 2011 in favour of the Plaintiff (the "Bank") in order to secure payment of the indebtedness of the Defendant's professional corporation. The Bank made a demand for payment on the guarantee, and subsequently brought an action against the Defendant (the "First Action").The Bank was successful on a motion for summary judgment and judgment was granted against the Defendant.

Background

Virginia Hills Oil Corp. was a small publicly traded oil producer with assets in north central Alberta. Some of its assets were held through its subsidiary Dolomite Energy Inc. (collectively the "Debtors"). The Debtors' main secured creditors were the Alberta Treasury Branches and the Bank of Nova Scotia (the "Banks"). The Debtors also owned a pipeline that passed through three municipalities (the "Municipalities").

In the recent landmark decision of The Guarantee Company of North America v.

​In Jaycap Financial Ltd v Snowdon Block Inc, 2019 ABCA 47 [Jaycap], the Alberta Court of Appeal recently reminded Receivers that they have a duty to be transparent and provide the Court with evidence to meet the burden of proof to the requisite standard for each application it brings.