ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST

Transcription

1 1 ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST Court File No. CV CL IN THE MATTER OF SECTION 243(1) OF THE BANKRUPTCY AND INSOLVENCY ACT, R.S.C. 1985, C. B-3, AS AMENDED, AND SECTION 101 OF THE COURTS OF JUSTICE ACT, R.S.O C. C.43, AS AMENDED B E T W E E N: LORI EISEN, DAVID FEIG, EDWARD GOLDBERG, ZIPORA GOLDBERG, RIWKA GREENBERG, KEMPSTON GROVE CORP., SAM KISHENIVSKY, ALICE KOMINEK, DIANE KOMINEK, IVAN KOMINEK, STEPHEN KOMINEK, DAVID LAZAR, ANNA ORZAKOVSKI, FRAN SUSSMAN AND SAM SUSSMAN Applicants - and - FISHERMEN S PIER INC., MICHAEL SLATTERY, HOME TRUST COMPANY, BEST FUNDING CORPORATION, THE BANK OF NOVA SCOTIA TRUST COMPANY, ERNEST WOOD, MARLENE UNDERWOOD, PHYLLIS KORMAN, ROBERT SINGER, JUDY SINGER, ROBIN DANIELS, AND ONTARIO LTD. Respondents MOTION RECORD (Motion Returnable November 24, 2016) GRAHAM TOBE PROFESSIONAL CORPORATION Barristers & Solicitors 2950 Keele Street, Suite 201 Toronto, Ontario M3M 2H2 Andrew R. Pigott (LSUC #68537L) Tel: Fax: Lawyers for the Receiver TO: SERVICE LIST

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3 3 INDEX DOCUMENT TAB Notice of Motion A (Pg. 4-14) Schedule A : Draft Discharge Order B (Pg ) Second Report of Rosen Goldberg Inc., in its capacity as court-appointed C (Pg. 22) Receiver, dated November 7 th, 2016 Appendix A : Receivership Order 1 (Pg. 25) Appendix B : Approval and Vesting Orders 2 (Pg. 35) Appendix C : Order of Swinton J. dated May 3, (Pg. 105) Appendix D : Initial Distribution 4 (Pg. 110) Appendix E : Statement of Receipts and Disbursements 5 (Pg. 112) Appendix F : Agreement with Pro ICF Inc. 6 (Pg. 114) Appendix G : Acknowledgement of Robin Daniels 7 (Pg. 117) Appendix H : Daniels Equalization Analysis 8 (Pg. 119) Appendix I : Distribution to Mortgagees (including Daniels) 9 (Pg. 121) Appendix J : Schedule of Second Distribution to Mortgagees 10 (Pg. 123) Appendix K : Affidavit of Fees of Brahm Rosen 11 (Pg. 125) Appendix L : Affidavit of Fees of Graham Tobe 12 (Pg. 135)

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5 5 ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST Court File No. CV CL IN THE MATTER OF SECTION 243(1) OF THE BANKRUPTCY AND INSOLVENCY ACT, R.S.C. 1985, C. B-3, AS AMENDED, AND SECTION 101 OF THE COURTS OF JUSTICE ACT, R.S.O C. C.43, AS AMENDED B E T W E E N: LORI EISEN, DAVID FEIG, EDWARD GOLDBERG, ZIPORA GOLDBERG, RIWKA GREENBERG, KEMPSTON GROVE CORP., SAM KISHENIVSKY, ALICE KOMINEK, DIANE KOMINEK, IVAN KOMINEK, STEPHEN KOMINEK, DAVID LAZAR, ANNA ORZAKOVSKI, FRAN SUSSMAN AND SAM SUSSMAN Applicants - and - FISHERMEN S PIER INC., MICHAEL SLATTERY, HOME TRUST COMPANY, BEST FUNDING CORPORATION, THE BANK OF NOVA SCOTIA TRUST COMPANY, ERNEST WOOD, MARLENE UNDERWOOD, PHYLLIS KORMAN, ROBERT SINGER, JUDY SINGER, ROBIN DANIELS, AND ONTARIO LTD. NOTICE OF MOTION (Motion Returnable November 24, 2016) Respondents Rosen Goldberg Inc., in its capacity as the court-appointed receiver (the Receiver ) of the assets, undertakings and properties of Fishermen s Pier Inc. (the Debtor ) will make a motion to a judge presiding over the Commercial List on November 24, 2016 at 10:00 a.m., or as soon thereafter as the motion can be heard at 330 University Avenue, Toronto, Ontario. PROPOSED METHOD OF HEARING The motion is to be heard orally. THE MOTION IS FOR: 1. An Order substantially in the form of the draft Discharge Order attached hereto as Schedule A, including without limitation, an Order, inter alia:

6 6 a. An Order validating and abridging the time of service of the Notice of Motion and Motion Record and directing that any further service of the Notice of Motion and Motion Record be dispensed with such that this Motion is properly returnable on the date scheduled for the hearing of this motion; b. An Order approving the Receiver s second report to the court dated November 5, 2016 (the Second Report ) and the Receiver s actions and conduct as detailed therein, since the time of the First Report; c. An Order approving the settlement with Pro ICF Inc. in the amount of $15,000.00, as detailed in the Second Report; d. An Order that the fees and disbursements of the Receiver as detailed in the Second Report and payment of same be approved; e. An Order that the fees and disbursements of counsel to the Receiver, Graham Tobe Professional Corporation, as detailed in the Second Report and payment of same be approved; f. And Order approving a distribution, as set out in the Second Report, to the Syndicated Mortgage Participants in the amount of $225,000.00; g. An Order to pay an amount of $227, to Levine Sherkin Boussidan Professional Corporation, in trust, counsel to the majority of the Syndicated Mortgage Participants, in respect of the Robin Daniels dispute, subject to a further Order of this Honourable Court; h. An Order that upon payment of the amounts set out in paragraphs b and c hereof and the Receiver s completion of all matters relating to the foregoing and upon the Receiver filing a certificate certifying that it has completed the activities described in the Second Report, that the Receiver shall be discharged as Receiver of the assets, undertakings and properties of the Debtor, provided however that notwithstanding its discharge herein (a) the Receiver shall remain Receiver for the performance of such identical duties as may be required to

7 7 complete the administration of the receivership herein, and (b) the Receiver shall continue to have the benefit of the provisions of all Orders made in this proceeding, including all approvals, protections and stays of proceedings in favour of Rosen Goldberg Inc. in its capacity as Receiver; i. An Order that Rosen Goldberg Inc. be released and discharged from any and all liability that Rosen Goldberg Inc. now has or may hereafter have by reason of, or in any way arising out of, the acts or omissions of Rosen Goldberg Inc., prior to the date of this Order, while acting in its capacity as Receiver herein. Without limiting the generality of the foregoing, Rosen Goldberg Inc. be forever released and discharged from any and all liability relating to matters that were raised, or which could have been raised, in the within Receivership proceedings prior to the date of this Order including any claims made as against the proceeds subject to the distribution, save and except for the Receiver s gross negligence or wilful misconduct; and 3. Such further and other relief as the Receiver may request and this Honourable Court may deem just. THE GROUNDS FOR THE MOTION ARE: 1. The Receiver was appointed pursuant to the Order of Justice Hainey of the Superior Court of Justice (Commercial List) (the Court ) dated October 14, 2015; 2. The Receiver has reported on its activities in the First Report dated April 22, 2016 and Second Report dated November 7, 2016; 3. The Receiver has successfully completed the sales of the five town homes subject to this receivership pursuant to the Approval and Vesting Orders made by the Honorable Madame Justice Swinton on May 3, 2016; 4. By the Order of the Honourable Madame Justice Swinton dated May 3, 2016, the court ordered among other things an interim distribution of: a. All amounts owing to Home Trust at the time of distribution;

8 8 b. $650,000 to the Syndicated Mortgage Participants, other than Robin Daniels; and c. $250,000 to be held by the Receiver with respect to Ms. Daniels claim. 5. The Receiver is not aware of any other creditor claims limiting the Syndicated Mortgage Participants charge or priority over the remaining assets of the Debtor; 6. Pursuant to paragraph 12 of the Appointment Order when applying to the court for a distribution of funds, the Receiver shall account for and equalize any discrepancies in prior receipt of funds by parties holding equal priority to the receivership assets; 7. The Receiver recommends a further distribution of funds to the majority of the Syndicated Mortgage Participants in the amount of $225, as set out in the Second Report; 8. The Receiver also recommends reducing the amount being reserved on account of Robin Daniels claim from $250, to $227,030.27, representing the amount required to equalize Robin Daniels in accordance with the Appointment Order and as calculated in the Second Report; 9. The Receiver further recommends this amount of $227, be paid to legal counsel for the majority of the Syndicated Mortgage Participants, Levine Sherkin Boussidan Professional Corporation, to be held in trust pending resolution of the Daniels claim as between the respective parties. This will permit the parties to the dispute to resolve the issue without incurring further costs on account of the Receiver s involvement. 10. After various consultations between the Receiver, counsel for Pro ICF Inc. and counsel for the Syndicated Mortgage Participants, a settlement agreement was executed with Pro ICF Inc. to settle the Construction Lien Act Claim for a payment in the amount of $15,000.00, dated October 20, 2016, a copy of which is included in the Second Report. 11. The Receiver has properly incurred fees and disbursements as detailed in the Second report; 12. The fees incurred by the Receiver for services provided by its legal counsel, Graham Tobe Professional Corporation, are detailed in the Second Report;

9 9 13. The Receiver seeks the approval of the Receiver s fees and the fees of their legal counsel and payment of same; 14. Section 243 of the BIA; 15. Sections 101, 137(2) and 141 of the Courts of Justice Act; 16. Such further and other grounds as counsel may advise and the Honourable Court permit. motion: THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the 1. The Receiver s Second Report dated November 7, Such further and other grounds as counsel may advise and this Honourable Court may permit. November 8, 2016 GRAHAM TOBE PROFESSIONAL CORPORATION Barristers & Solicitors 2950 Keele Street, Suite 201 Toronto, ON M3M 2H2 Andrew R. Pigott (68537L) T: F: E: apigott@gtlaw.ca Lawyers for Rosen Goldberg Inc. in its Capacity as court-appointed receiver of Fishermen s Pier Inc.

10 10 SERVICE LIST (as at November 7, 2016) TO: LEVINE SHERKIN BOUSSIDAN PROFESSIONAL CORPORATION 23 Lesmill Road, Suite 300 Toronto, ON M3B 3P6 Attention: Mitchell Wine P: F: E: Lawyer for the Applicants & the majority of the Syndicated Mortgage Participants AND TO: LANDY MARR KATS LLP 2 Sheppard Ave. E., Suite 900 Toronto, ON M2M 5Y7 Attention: Raman Dhillon P: F: E: rdhillon@lmklawyers.com Attention: Keith M. Landy P: F: E: klandy@lmklawyers.com Lawyers for the Respondent, Robin Daniels AND TO: KORMANS LLP 46 Village Centre Place, Suite 200 Mississauga, ON L4Z 1V9 Attention: Jerry S. Korman P: x 224 F: E: jkorman@kormans.ca Lawyer for the Respondent(s), Phyllis Korman, Best Funding Corporation, Ernest Wood and Marlene Underwood AND TO: GOWLING WLG 1 First Canadian Place 100 King Street West, Suite 1600

11 11 Toronto, ON M5X 1G5 Attention: Calvin J. Ho P: F: E: Lawyer for the Respondent, Home Trust Company AND TO: DRUDI ALEXIOU KUCHAR LLP Barristers-At-Law 7050 Weston Road, Suite 610 Vaughan, ON L4L 8G7 Attention: Adam Wainstock T: F: E: Lawyer for the Construction Lien Act Claimant, PRO ICF Inc. AND TO: MICHAEL SLATTERY 46 Village Centre Place, 3 rd Floor Mississauga, Ontario L4Z 1V9 Attention: Michael Slattery E: mslattery@skylarkmortgages.ca AND TO: FISHERMEN S PIER INC. c/o Rosen Goldberg Inc Yonge Street, Suite 804, Toronto, Ontario, M2N 6P4 Attention: Brahm Rosen T: E: brosen@rosengoldberg.com AND TO: THE BANK OF NOVA SCOTIA TRUST COMPANY 130 King Street West, 20th Floor Toronto, ON M5X 1K1 Attention: Karen Ford P: F: E: rsp_custody@scotiawealth.com

12 12 For the Respondent, The Bank of Nova Scotia Trust Company AND TO: ROBERT SINGER c/o 46 Village Centre Place Mississauga, Ontario L4Z 1V9 E: AND TO: JUDY SINGER c/o 46 Village Centre Place Mississauga, Ontario L4Z 1V9 E: AND TO: ONTARIO LTD. c/o Dr. Stanley Cash E: AND TO: CHRIS BREEN LAW Attention: Christopher C. Breen P: F: E: Lawyer for the purchasers of 1083 Beach Blvd, Paula Skowronski and Graham Clarke AND TO: ESCARPMENT LAW GROUP Fennell Avenue Hamilton, ON L8V 4S9 Attention: Alanna C. Stephen P: F: E: Lawyer for the purchasers of 1091 Beach Blvd., Darren Feener and Leanne Feener & Lawyer for the purchasers of 1085 Beach Blvd, Roger White and Pamela Hillier AND TO: THATCHER AND WANDS Barristers, Solicitors, Notaries

13 Ontario Street Burlington, ON L7S 1G6 Attention: William L. Thatcher P: F: E: Lawyer for the purchasers of 1087 Beach Blvd., John Morton and Christine Strohak AND TO: O CONNOR ZANARDO PROFESSIONAL CORPORATION Barristers and Solicitors 4230 Sherwoodtowne Blvd, Suite 300 Mississauga, ON L4Z 2G6 Attention: Linda C. Zanardo P: F: E: linda@ozlaw.ca Lawyer for the purchasers of 1089 Beach Blvd., Olev Joachim Richling and Susan Elisabeth Richling AND TO: HER MAJESTY THE QUEEN IN RIGHT OF CANADA AS REPRESENTED BY THE MINISTER OF NATIONAL REVENUE Canada Revenue Agency c/o DEPARTMENT OF JUSTICE Ontario Regional Office The Exchange Tower, Box King Street West, Suite 3400 Toronto, ON M5X 1K6 Attention: Diane Winters T: F: E: diane.winters@justice.gc.ca

14 14 Court File No.: CV CL LORI EISEN ET AL. -and- FISHERMEN S PIER INC. ET AL. (Applicants) (Short Title of Proceedings) (Respondents) ONTARIO SUPERIOR COURT OF JUSTICE (Commercial List) Proceeding commenced at Toronto NOTICE OF MOTION ` GRAHAM TOBE PROFESSIONAL CORPORATION Barristers & Solicitors 2950 Keele Street, Suite 201 Toronto, Ontario M3M 2H2 Andrew R. Pigott (LSUC 68537L) Tel: Fax: Lawyers for the Receiver

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16 16 Schedule A ONTARIO SUPERIOR COURT OF JUSTICE Court File No. CV CL COMMERCIAL LIST IN THE MATTER OF SECTION 243(1) OF THE BANKRUPTCY AND INSOLVENCY ACT, R.S.C. 1985, C. B-3, AS AMENDED, AND SECTION 101 OF THE COURTS OF JUSTICE ACT, R.S.O C. C.43, AS AMENDED THE HONOURABLE JUSTICE ) ) ) THURSDAY, THE 24 th DAY OF NOVEMBER, 2016 B E T W E E N: LORI EISEN, DAVID FEIG, EDWARD GOLDBERG, ZIPORA GOLDBERG, RIWKA GREENBERG, KEMPSTON GROVE CORP., SAM KISHENIVSKY, ALICE KOMINEK, DIANE KOMINEK, IVAN KOMINEK, STEPHEN KOMINEK, DAVID LAZAR, ANNA ORZAKOVSKI, FRAN SUSSMAN AND SAM SUSSMAN Applicants - and FISHERMEN S PIER INC., MICHAEL SLATTERY, HOME TRUST COMPANY, BEST FUNDING CORPORATION, THE BANK OF NOVA SCOTIA TRUST COMPANY, ERNEST WOOD, MARLENE UNDERWOOD, PHYLLIS KORMAN, ROBERT SINGER, JUDY SINGER, ROBIN DANIELS, AND ONTARIO LTD. Respondents DISCHARGE ORDER THIS MOTION, made by ROSEN GOLDBERG INC. in its capacity as the Courtappointed receiver (the "Receiver") of the undertaking, property and assets of FISHERMEN S PIER INC. (the "Debtor"), for an order: 1. validating and abridging the time of service of the Notice of Motion and Motion Record; 2. approving the activities of the Receiver as set out in the Second Report of the Receiver dated November 7, 2016 (the "Report"); 3. approving the settlement agreement with Pro ICF Inc. as set out in the Report;

17 17 4. approving the fees and disbursements of the Receiver and its counsel; 5. approving the distribution of the remaining proceeds available as set out in the Report, including; (a) a distribution to the Syndicated Mortgage Participants in the amount of $225,000.00; and (b) a payment of $227, to counsel for the majority of the Syndicated Mortgage Participants, Levine Sherkin Boussidan Professional Corporation, to be held in trust pending resolution of the Robin Daniels dispute; 6. discharging ROSEN GOLDBERG INC. as Receiver of the undertaking, property and assets of the Debtor; and 7. releasing ROSEN GOLDBERG INC. from any and all liability, as set out in paragraph 8 of this Order, was heard this day at 330 University Avenue, Toronto, Ontario. ON READING the Report, the affidavits of the Receiver and its counsel as to fees (the "Fee Affidavits"), and on hearing the submissions of counsel for the Receiver, no one else appearing although served as evidenced by the Affidavit of Andrew R. Pigott sworn November 8, 2016, filed; 1. THIS COURT ORDERS that, if necessary, the time for service, filing and confirmation of the Notice of Motion and the Motion Record be abridged so that this motion is properly returnable today and hereby dispenses with further service and confirmation hereof; 2. THIS COURT ORDERS that the activities of the Receiver, as set out in the Report, are hereby approved. 3. THIS COURT ORDERS that the settlement agreement with Pro ICF Inc. as set out in the Report is hereby approved. 4. THIS COURT ORDERS that the fees and disbursements of the Receiver and its counsel, as set out in the Report and the Fee Affidavits, are hereby approved.

18 18 5. THIS COURT ORDERS that, after payment of the fees and disbursements herein approved, the Receiver be authorized to make a distribution from the proceeds on hand to the Syndicated Mortgage Participants in the amount of $225, THIS COURT ORDERS that, after the payment of fees and disbursements herein approved, the Receiver be authorized to make a payment in the amount of $227, to Levine Sherkin Boussidan Professional Corporation, to be held in trust pending resolution of the Robin Daniels dispute, subject to a further Order of this Honourable Court. 7. THIS COURT ORDERS that upon payment of the amounts set out in paragraphs 5 and 6 hereof [and upon the Receiver filing a certificate certifying that it has completed the other activities described in the Report, a draft form of which is attached hereto as Schedule A1], the Receiver shall be discharged as Receiver of the undertaking, property and assets of the Debtor, provided however that notwithstanding its discharge herein (a) the Receiver shall remain Receiver for the performance of such incidental duties as may be required to complete the administration of the receivership herein, and (b) the Receiver shall continue to have the benefit of the provisions of all Orders made in this proceeding, including all approvals, protections and stays of proceedings in favour of ROSEN GOLDBERG INC. in its capacity as Receiver. 8. THIS COURT ORDERS AND DECLARES that ROSEN GOLDBERG INC. is hereby released and discharged from any and all liability that ROSEN GOLDDBERG INC. now has or may hereafter have by reason of, or in any way arising out of, the acts or omissions of ROSEN GOLDBERG INC. while acting in its capacity as Receiver herein, save and except for any gross negligence or wilful misconduct on the Receiver's part. Without limiting the generality of the foregoing, ROSEN GOLDBERG INC. is hereby forever released and discharged from any and all liability relating to matters that were raised, or which could have been raised, in the within receivership proceedings, save and except for any gross negligence or wilful misconduct on the Receiver's part. Justice, Ontario Superior Court of Justice

19 19 Schedule A1 Form of Receiver s Discharge Certificate Court File No. CV CL ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST B E T W E E N: IN THE MATTER OF SECTION 243(1) OF THE BANKRUPTCY AND INSOLVENCY ACT, R.S.C. 1985, C. B-3, AS AMENDED, AND SECTION 101 OF THE COURTS OF JUSTICE ACT, R.S.O C. C.43, AS AMENDED LORI EISEN, DAVID FEIG, EDWARD GOLDBERG, ZIPORA GOLDBERG, RIWKA GREENBERG, KEMPSTON GROVE CORP., SAM KISHENIVSKY, ALICE KOMINEK, DIANE KOMINEK, IVAN KOMINEK, STEPHEN KOMINEK, DAVID LAZAR, ANNA ORZAKOVSKI, FRAN SUSSMAN AND SAM SUSSMAN Applicants - and - FISHERMEN S PIER INC., MICHAEL SLATTERY, HOME TRUST COMPANY, BEST FUNDING CORPORATION, THE BANK OF NOVA SCOTIA TRUST COMPANY, ERNEST WOOD, MARLENE UNDERWOOD, PHYLLIS KORMAN, ROBERT SINGER, JUDY SINGER, ROBIN DANIELS, AND ONTARIO LTD. Respondents RECITALS RECEIVER S DISCHARGE CERTIFICATE A. Pursuant to an Order of the Honourable Hainey of the Ontario Superior Court of Justice (the "Court") dated October 14, 2015, ROSEN GOLDBERG INC. was appointed as the receiver (the "Receiver") of the undertaking, property and assets of FISHERMEN S PIER INC. (the Debtor ). B. Pursuant to an Order of the Court dated November 7, 2016 (the Discharge Order ) ROSEN GOLDBERG INC. was discharged as the Receiver of all of the assets, undertakings and properties of the Debtors to be effective upon the filing by the Receiver with the Court of a certificate confirming that all matters to be attended to in connection with the receivership of the Debtors have been completed to the satisfaction of the Receiver, provided, however, that notwithstanding its discharge: (a) the Receiver will remain the Receiver for the performance of such incidental duties as may be required to complete the administration of the receivership; and (b) the Receiver will continue to have the benefit of the provisions of all Orders made in this

20 20 proceeding, including all approvals, protections and stays of proceedings in favour of ROSEN GOLDBERG INC., in its capacity as the Receiver. C. Unless otherwise indicated herein, terms with initial capitals have the meanings set out in the Discharge Order. THE RECEIVER CERTIFIES the following: 1. all matters to be attended to in connection with the receivership of the Debtors have been completed to the satisfaction of the Receiver; and; 2. this Certificate was delivered by the Receiver at a.m./p.m. on, 2016 ROSEN GOLDBERG INC, in its capacity as Receiver of the undertakings, property and assets of FISHERMEN S PIER INC., and not in its personal or corporate capacity Per: Name: Brahm Rosen Title: President

21 21 Court File No.: CV CL LORI EISEN ET AL. -and- FISHERMEN S PIER INC. ET AL. (Applicants) (Short Title of Proceedings) (Respondents) ONTARIO SUPERIOR COURT OF JUSTICE (Commercial List) Proceeding commenced at Toronto DISCHARGE ORDER ` GRAHAM TOBE PROFESSIONAL CORPORATION Barristers & Solicitors 2950 Keele Street, Suite 201 Toronto, Ontario M3M 2H2 Andrew R. Pigott (LSUC 68537L) Tel: Fax: Lawyers for the Receiver

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168 168 Court File No.: CV CL LORI EISEN ET AL. -and- FISHERMEN S PIER INC. ET AL. (Applicants) (Short Title of Proceedings) (Respondents) ONTARIO SUPERIOR COURT OF JUSTICE (Commercial List) Proceeding commenced at Toronto MOTION RECORD ` GRAHAM TOBE PROFESSIONAL CORPORATION Barristers & Solicitors 2950 Keele Street, Suite 201 Toronto, Ontario M3M 2H2 Andrew R. Pigott (LSUC 68537L) Tel: Fax: Lawyers for the Receiver