Summary judgment of an action may only be granted when there is no genuine issue requiring a trial and this can be difficult to prove in fraud cases where credibility is often an important factor. In the recent Ontario Superior Court decision in MacNamara v. 2087850 Ontario Ltd. (Strathcona Construction), 2017 ONSC 499, Justice Akbarali granted summary judgment finding both fraud and grounds to pierce the corporate veil of a corporate defendant. This case demonstrates how liability for even the most serious causes of action can be established by way of summary judgment where a full evidentiary record allows the Court to find the necessary facts, apply the law, and determine that there is no genuine issue for trial. Continue Reading
Canada’s anti-bribery law prohibits anyone from giving or offering a loan, reward, advantage or benefit of any kind — directly or through intermediaries — to a foreign public official as consideration for an act or omission by the latter to obtain or retain a business advantage. Continue Reading
Two recent decisions of the Ontario Superior Court demonstrate the willingness of Canadian judges to find fraud on the basis of material omissions in both civil and criminal cases. In Midland Resources Holding Limited v. Shtaif 2017 ONCA 320, 135 O.R. (3d) 481 and R. v. Fontana 2016 ONSC 707, omissions by the defendants were found to constitute fraudulent conduct.
Civil Fraud: Midland Resources Holding Limited v. Shtaif
In Midland Resources Holding Limited v. Shtaif, the Ontario Court of Appeal confirmed that the tort of deceit or fraudulent misrepresentation may:
involve not only an overt statement of fact, but also certain kinds of silence: the half-truth or representation that is practically false, not because of what is said, but because of what is left unsaid.
In 2014, we reported on the Ontario Superior Court of Justice’s decision in Indcondo Building Corporation v. Sloan (“Indcondo“), which strengthened the position of plaintiffs seeking to set aside fraudulent conveyances in Ontario. In the Indcondo case, Mr. Justice Penny analyzed the substantive test for establishing fraudulent conveyance and in particular the demonstration of whether a defendant had the requisite intent to defeat creditors or others. Continue Reading
As the Canadian government contemplates further measures to combat financial crime, there is an increasing debate over whether Canada should follow the US, UK or the proposed Australian model by introducing a deferred prosecution agreement (DPA) regime to help combat corporate wrongdoing, promote ethical business conduct, and encourage corporate self-reporting to and cooperation with Canadian government authorities.
Comparing the US, UK and the proposed Australian model for deferred prosecution agreements, Baker McKenzie’s Peter MacKay, Chris Burkett and Henry Garfield make the case for the DPA system Canada should adopt in Global Investigations Review’s latest edition.