Suretrust: a data centre in storage and a discharge put off to September 29

The servers came out of Units 114 and 115 at 18 Wynford Drive in Toronto on April 2, 2025. A court order had told Grant Thornton Limited, as receiver, to deliver them to Takintope Akinbiyi's last known address if his company did not take them first, but there did not appear to be a safe place there to leave them out of the weather, so the receiver arranged "to temporarily move the Equipment to a secure storage facility," per the Third Report of the Receiver, Oct. 20, 2025, paras. 38–39. They belong to Data & Scientific Inc., which ran a data centre in the two commercial condominium units, and by October 2025 the receiver was telling it that it must reimburse $31,931.54 for moving and storing them: $20,678 for the move, $1,895 a month in storage for June through September, and HST, per the Third Report, para. 48.

On September 17, 2026, the receiver was on the Commercial List to bring the receivership to an end, on a motion for "a Supplemental Approval and Vesting Order, and a Distribution and Discharge Order," as its counsel described it when serving the record on September 4, per the Supplementary Motion Record of Grant Thornton Limited, Sept. 16, 2026, p. 11. Dr. Akinbiyi, a personal respondent, appeared; the respondents' lawyer did not. He told Justice Peter Cavanagh that counsel was engaged on another court hearing, and the receiver's counsel reached that lawyer on a break from it and learned he could attend on Tuesday, September 29. The motion was adjourned to that day at 12:30 p.m., for 30 minutes by Zoom. The endorsement records that the receiver brought the motion on proper notice, that counsel had advised the date was not convenient, that responding materials were filed late, and that the respondents oppose the relief, per the Endorsement of Justice Peter Cavanagh, Sept. 17, 2026, paras. 1–4.

Two units and a lease

Royal Bank of Canada lent to two companies of which Dr. Akinbiyi is the principal: Suretrust Systems Inc., which carried on business as an independent software vendor, and 11860925 Canada Inc., which owns the units, per the Endorsement of Justice Cavanagh, Nov. 20, 2025, paras. 1–2. Each guaranteed the other's debt to the bank, Dr. Akinbiyi gave a limited personal guarantee, and 1186 gave RBC a mortgage on the units. RBC claimed $1,312,465.74 as of October 27, 2023, inclusive of interest and costs; the debtors did not admit that figure, but there was no disagreement that $1.2 million of principal remained outstanding, per the Endorsement of Justice Cavanagh, Dec. 20, 2023, paras. 4–10. The bank's account of the default is a June 7, 2023 letter citing a failure to provide the written status of HST and payroll source remittances, and unmet reporting requirements, followed by demands and s. 244 notices under the Bankruptcy and Insolvency Act on August 17, 2023.

Dr. Akinbiyi's account of how it started is in an email of September 15, 2026 that the receiver has now put before the court. Power in the building failed for a whole day at a time in 2022 and early 2023, longer than the data centre's backup supply could carry it; D&S lost a major customer from the export market, and another had trouble paying in dollars under new foreign-exchange rules in its own country. "We, as a result had a temporary cash flow problem in early 2023," he writes, per the Supplementary Motion Record, Sept. 16, 2026, p. 58.

At the appointment hearing on December 20, 2023, the debtors said they meant to repay and that RBC was well secured by its mortgage on units bought in March 2020 for $910,000; they asked for until July 31, 2024, paying interest only in the meantime. Justice Cavanagh found no reasonable certainty they could repay "in the near future, or at all," did not regard the July 31 proposal as realistic, and appointed Grant Thornton under s. 243(1) of the BIA and s. 101 of the Courts of Justice Act, per the Endorsement of Justice Cavanagh, Dec. 20, 2023, paras. 13–15.

D&S, which Dr. Akinbiyi also runs, occupied the units under a lease with 1186 dated March 31, 2020, per the Endorsement of Justice Cavanagh, Nov. 20, 2025, para. 3. The receiver served notice terminating the lease on February 20, 2024, per the First Report of the Receiver, Apr. 26, 2024, para. 20. In May 2024 D&S consented to an order for vacant possession on terms: it could stay until August 30, 2024 if it paid occupation rent, not less than $26,330.64 of condominium arrears and two property-tax instalments of $11,353.91 on a fixed schedule, and if RBC were repaid in full by August 30 the order would have no effect and the receiver could seek its discharge unopposed, per the Endorsement of Justice Wilton-Siegel, May 21, 2024, p. 3. The receiver reported that the condominium payment arrived $9,327.15 short and that the tax and January-to-April rent instalments were not paid. It took possession with a locksmith at 8:30 a.m. on July 25, 2024; Dr. Akinbiyi arrived at about 9:08, accused the receiver of illegally breaking into "his property," and called 911, and six officers attended, per the Second Report of the Receiver, Nov. 12, 2024, paras. 16–24. On August 30 the receiver "unexpectedly received" wire transfers of $20,736 and $5,184 from D&S, and D&S's new counsel asked it to have the receivership terminated; the receiver answered that the order required RBC to be paid out first, which had not happened, per the Second Report, paras. 34–36.

The servers

Colliers had listed the units for 1186 in May 2024 at $950,000. The broker told the receiver that several parties were interested but that no offers had come at that price, which 1186 had insisted on over Colliers' recommendation; the receiver proposed to keep Colliers and relist at $810,000, per the Second Report, paras. 49–51. On November 25, 2024 Justice Penny approved that sale process over the objection of John Ekpenyong, "Dr. Akinbiyi's fourth lawyer since this matter began," who asked for two months to refinance. "Paying out the Bank means actually paying out the Bank," the judge wrote. D&S was given until January 31, 2025 to take its servers, after which the receiver would remove them at the tenant's cost. "The conduct of Dr. Akinbiyi and the Tenant has imposed unnecessary costs on the Receiver, to the prejudice of the Bank," so each attendance after the first would cost $2,500, and Dr. Akinbiyi was not to attend in person without counsel, per the Endorsement of Justice Penny, Nov. 25, 2024, paras. 5–10.

There are two accounts of the one attendance that followed. The receiver says Dr. Akinbiyi came on January 29, 2025, "spent the day working on the computers but did not make any effort to remove the Equipment," per the Third Report, para. 28. Dr. Akinbiyi's affidavit says that on entering the data centre he found ceiling panels missing beside the HVAC outlet, temperature gauges reading 97°F at their lowest against a normal setpoint of 78°F, and several servers not working, and that months of work would be needed to restore the systems, per the Affidavit of Takintope Akinbiyi, Oct. 17, 2025, paras. 9–12, in Moving Party's Motion Record. D&S's counsel asked for three more months, in January and again in February, then said D&S would appeal; on March 11 the receiver's counsel confirmed with the Court of Appeal that no appeal materials had been filed. A moving company was arranged at the end of February and the receiver agreed to access on the order's terms, with counsel present and $2,500 a day paid in advance, but on March 6 Dr. Akinbiyi asked for at least six weeks. Counsel withdrew on March 20, and on April 2 the receiver moved the equipment itself, per the Third Report, paras. 27–38.

A buyer, and two rulings in the Court of Appeal

The units were listed on February 21, 2025. An offer in June was conditional on, among other things, the condominium corporation letting the buyer build a playground on the common area, and the receiver did not respond. An offer from 2306018 Ontario Inc. followed in August; the agreement is dated September 10 and was signed September 11. On October 2 the purchaser offered to waive its conditions if the price came down by $20,000. The receiver refused, and on October 3 the conditions were waived at the agreed price, per the Third Report, paras. 53–60. That price is in a confidential appendix sealed until closing or further order, per the Ancillary Relief Order, Nov. 20, 2025, para. 6.

Justice Dietrich adjourned the approval motion on October 31, 2025 so that the debtors could retain new counsel, with responding material due November 14; none was filed. On November 20 counsel for the debtors and D&S opposed on the basis that D&S property might remain in the units, and Justice Cavanagh declined a further adjournment, found that the provisions D&S wanted to appeal did not affect the sale or the vesting of title, held the Soundair factors satisfied and granted the vesting order and a sealing order, per the Endorsement of Justice Cavanagh, Nov. 20, 2025, paras. 10–17.

The appeal D&S wanted was from Justice Penny's order. Describing itself as "an interested non-party directly affected," it asked the Court of Appeal to extend its time and to bar the receiver, meanwhile, from any "removal, disposal, destruction, alteration or delivery of servers, proprietary software, or confidential client data." It would argue that the order's approval of the receiver's actions conferred "de facto immunity for acts outside the Receiver's mandate," per the Notice of Motion, Oct. 20, 2025, paras. 1–4, 11, in Moving Party's Motion Record. The receiver's reply was that D&S "does not have an interest in the sale of the Real Property" and that an appeal would frustrate it, per the Report of the Receiver to the Court of Appeal, Nov. 14, 2025, paras. 105–108.

Justice Darla A. Wilson heard the motion on November 18 and released her decision on November 20. D&S had shown no intention to appeal in time and offered no explanation for a delay of almost a year; an extension would prejudice the receiver, with a sale pending; and the appeal had no merit. "While D&S complains about the loss of its property, the order of Penny J. considered that issue and specifically accommodated the desire of D&S to remove its materials. That did not happen, through no fault of the Receiver." She called the motion "ill-conceived, tactical and devoid of merit" and ordered D&S to pay $18,217.18 in costs on a full indemnity scale, forthwith, per the Endorsement of Wilson J.A., released Nov. 20, 2025, pp. 1–3. A panel of Rouleau, Thorburn and Favreau JJ.A. declined to set that aside on March 26, 2026, refused D&S's fresh evidence, and fixed costs at a further $10,000, per the Royal Bank of Canada v. Suretrust Systems Inc., 2026 ONCA 247, Apr. 1, 2026, paras. 1–5.

A final indulgence

On April 6, 2026 the receiver's counsel wrote that, "As a final indulgence," D&S had two weeks to arrange retrieval, "failing which the Receiver will return to Court to seek direction to sell the equipment and apply the proceeds against the storage fees owing by D&S." The same email asked when the Court of Appeal costs, "due forthwith," would be paid, per the Supplementary Motion Record, Sept. 16, 2026, pp. 27–28. D&S's lawyer, Matthew Tubie, replied on April 16 that his client wished to retrieve the equipment but, "since his business has been completely destroyed, he does not have the income to meet your client's stringent conditions," and asked for them to be relaxed, per the Supplementary Motion Record, p. 26. The receiver asked for a proposal on April 17, May 5 and July 22. On July 28 Mr. Tubie said he would respond by July 31, and the receiver's supplement says nothing further came before the motion was served, per the Supplementary Motion Record, pp. 21–23; Supplement to the Final Report, Sept. 16, 2026, para. 4.

After service, Mr. Tubie objected that the date had been set "without seeking my availability," and on September 10 wrote that he had been served with a 469-page motion record on September 4 and a 44-page factum that day, and asked for a short adjournment to prepare responding materials. The receiver answered on September 11 that neither the debtors nor D&S had said what relief they opposed, that it "continues to incur costs with respect to the Equipment, which your client has refused to address for over a year," and that it "cannot delay the wind-down of the receivership"; an adjournment would have to be sought from the court, per the Supplementary Motion Record, pp. 10, 43, 47.

Dr. Akinbiyi wrote on September 10 and 15, copying the court's motions scheduling office. He had training booked on September 17 and 18 for five customers who had paid, and was available after October 4. He has put the data centre's value at between $32 million and $39 million, says he has offered at least three times to pay off RBC and buy the premises back, and writes that D&S will sue the receiver for at least $32 million if it is not given access, per the Supplementary Motion Record, pp. 25, 52, 54, 58. The receiver's supplement summarizes the emails as repeating allegations about its conduct, including that it "broke in" to the premises and has caused "calamity level" damage to the data centre, and reports that as of September 16 the debtors and D&S had delivered no responding materials, identified no relief they opposed, and proposed no arrangement to collect the equipment or pay the costs of keeping it, per the Supplement to the Final Report, Sept. 16, 2026, paras. 8–10.

By the time of the hearing, the endorsement records, responding materials had been filed, late. The motion returns on September 29, 2026 at 12:30 p.m., for 30 minutes by Zoom, per the Endorsement of Justice Peter Cavanagh, Sept. 17, 2026, paras. 1, 4.