ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST · ontario superior court of justice . commercial list . in the matter of section 243(1) of the bankruptcy . and insolvency act,

Court File No. CV-15-11061-00CL

ONTARIO

SUPERIOR COURT OF JUSTICE

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. 1990 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 1337997 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: 416-256-1555

Fax: 416-256-0918

Lawyers for the Receiver

TO: SERVICE LIST

1

INDEX

2

INDEX

DOCUMENT TAB

Notice of Motion A (Pg. 4-14)

Schedule “A”: Draft Discharge Order B (Pg. 15-20)

Second Report of Rosen Goldberg Inc., in its capacity as court-appointed C (Pg. 22)

Receiver, dated November 7th, 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, 2016 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)

3

TAB A

4


ONTARIO


COMMERCIAL LIST





B E T W E E N:


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 -


FUNDING CORPORATION, THE BANK OF NOVA SCOTIA TRUST COMPANY,

ERNEST WOOD, MARLENE UNDERWOOD, PHYLLIS KORMAN, ROBERT

SINGER, JUDY SINGER, ROBIN DANIELS, AND 1337997 ONTARIO LTD.

Respondents

NOTICE OF MOTION

(Motion Returnable November 24, 2016)

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:

5

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 $227,030.27 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

6

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;

7

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 $225,000.00 as set out in the Second Report;

8. The Receiver also recommends reducing the amount being reserved on account of Robin

Daniels’ claim from $250,000.00 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 $227,030.27 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;

8

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.

THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the

motion:

1. The Receiver’s Second Report dated November 7, 2016.

2. Such further and other grounds as counsel may advise and this Honourable Court may

permit.

November 8, 2016 GRAHAM TOBE PROFESSIONAL

CORPORATION



Toronto, ON M3M 2H2

Andrew R. Pigott (68537L)

T: 416-256-1555

F: 416-256-0918

E: [email protected]

Lawyers for Rosen Goldberg Inc. in its

Capacity as court-appointed receiver of

Fishermen’s Pier Inc.

9

mailto:[email protected]

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: 416-224-2400

F: 416-224-2408


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: 416-221-9343

F: 416-221-8928


Attention: Keith M. Landy

P: 416-221-9343

F: 416-221-8928


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: 905-270-6660 x 224

F: 905-270-2665


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

10





Toronto, ON M5X 1G5

Attention: Calvin J. Ho P: 416-862-5788

F: 416-862-7661


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: 905-850-6116

F: 905-850-9146


Lawyer for the Construction Lien Act Claimant, PRO ICF Inc.

AND TO: MICHAEL SLATTERY

46 Village Centre Place, 3rd Floor

Mississauga, Ontario L4Z 1V9

Attention: Michael Slattery


AND TO: FISHERMEN’S PIER INC.

c/o Rosen Goldberg Inc.

5255 Yonge Street, Suite 804,

Toronto, Ontario, M2N 6P4

Attention: Brahm Rosen

T: 416-224-4200


AND TO: THE BANK OF NOVA SCOTIA TRUST COMPANY

130 King Street West, 20th Floor

Toronto, ON

M5X 1K1

Attention: Karen Ford

P: 416-933-2966

F: 416-933-2223


11





For the Respondent, The Bank of Nova Scotia Trust Company

AND TO: ROBERT SINGER

c/o 46 Village Centre Place



AND TO: JUDY SINGER

c/o 46 Village Centre Place



AND TO: 1337997 ONTARIO LTD.

c/o Dr. Stanley Cash


AND TO: CHRIS BREEN LAW

Attention: Christopher C. Breen

P: 905-634-1828

F: 905-634-9630


Lawyer for the purchasers of 1083 Beach Blvd, Paula Skowronski and Graham

Clarke

AND TO: ESCARPMENT LAW GROUP

226-550 Fennell Avenue

Hamilton, ON L8V 4S9

Attention: Alanna C. Stephen

P: 905-667-2990

F: 905-667-2991


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

12






1457 Ontario Street

Burlington, ON L7S 1G6

Attention: William L. Thatcher

P: 905-681-0444

F: 905-681-2937


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: 905-896-4370

F: 905-896-4926


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 36

136 King Street West, Suite 3400

Toronto, ON M5X 1K6

Attention: Diane Winters

T: 416-973-3172

F: 416-973-0810


13




Court File No.: CV-15-11061-00CL

LORI EISEN ET AL. -and- FISHERMEN’S PIER INC. ET AL.

(Applicants) (Respondents)

(Short Title of Proceedings)

ONTARIO


(Commercial List)

Proceeding commenced at Toronto

NOTICE OF MOTION

` GRAHAM TOBE PROFESSIONAL CORPORATION



Toronto, Ontario

M3M 2H2

Andrew R. Pigott (LSUC 68537L)

Tel: 416-256-1555

Fax: 416-256-0918


14

TAB B

15

Schedule A


ONTARIO


COMMERCIAL LIST





THE HONOURABLE

JUSTICE

)

)

)

THURSDAY, THE 24th

DAY OF NOVEMBER, 2016

B E T W E E N:


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 –


FUNDING CORPORATION, THE BANK OF NOVA SCOTIA TRUST COMPANY, ERNEST

WOOD, MARLENE UNDERWOOD, PHYLLIS KORMAN, ROBERT SINGER, JUDY SINGER,

ROBIN DANIELS, AND 1337997 ONTARIO LTD.

Respondents

DISCHARGE ORDER

THIS MOTION, made by ROSEN GOLDBERG INC. in its capacity as the Court-

appointed 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;

16

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 $227,030.27 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.

17

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 $225,000.00.

6. 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 $227,030.27 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

18

Schedule A1 – Form of Receiver’s Discharge Certificate


ONTARIO


COMMERCIAL LIST





B E T W E E N:


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 -


FUNDING CORPORATION, THE BANK OF NOVA SCOTIA TRUST COMPANY, ERNEST

WOOD, MARLENE UNDERWOOD, PHYLLIS KORMAN, ROBERT SINGER, JUDY SINGER,

ROBIN DANIELS, AND 1337997 ONTARIO LTD.

Respondents

RECEIVER’S DISCHARGE CERTIFICATE

RECITALS

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

19

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

20





ONTARIO


(Commercial List)


DISCHARGE ORDER




Toronto, Ontario

M3M 2H2


Tel: 416-256-1555

Fax: 416-256-0918


21

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ONTARIO


(Commercial List)


MOTION RECORD




Toronto, Ontario

M3M 2H2


Tel: 416-256-1555

Fax: 416-256-0918


168

Documents

ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST · ontario superior court of justice . commercial list . in the matter of section 243(1) of the bankruptcy . and insolvency act,