In a narrow 5-4 decision, the Supreme Court of Canada has laid out a new formulation of the “fictitious or non-existing payee” defence under section 20(5) of the Bills of Exchange Act (BEA
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When should a fraudulent conveyance action be brought?
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.
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The Widening Scope of Data Breach Class Actions
The Federal Court of Appeal’s decision in Condon v. The Queen, 2015 FCA 159 (“Condon“), released July 6, 2015, has significant implications for organizations that have experienced large scale data breaches. The Federal Court of Appeal upheld the decision by the Federal Court to certify a class action lawsuit based on the recently developed tort of intrusion upon seclusion (i.e. breach of privacy) and breach of contract and warranty. However, the Federal Court of Appeal also expanded the certification to include claims of negligence and breach of confidence. The lower court had found the failure to allege specific damages arising from the data breach to be fatal to the negligence and breach of confidence claims, but the Federal Court of Appeal reversed the lower court on this point.
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The OSC Proposes a Framework for a New Whistleblower Program
On February 3, 2015, the Ontario Securities Commission (the “OSC“) released a staff consultation paper which outlines a proposed framework for an OSC Whistleblower Program. The program seeks to encourage individuals to report serious breaches of Ontario securities law, that would not otherwise come to the OSC’s attention.
The evolution of fraudulent conveyance – Indcondo v. Sloan
On July 31, 2014, the Honourable Mr. Justice Penny of the Ontario Superior Court of Justice ruled in favour of the plaintiff in Indcondo Building Corporation v. Sloan (S.C.J.). For the plaintiff, Indcondo Building Corp (“Indcondo“), the ruling represents the culmination of more than two decades of litigation, which witnessed an intervening bankruptcy and subsequent orders under the Bankruptcy and Insolvency Act (the “BIA“) as well as two separate dismissal motions brought by the defendants on limitation period and abuse of process/issue estoppel defences. Each were initially successful, but both were reversed by the Ontario Court of Appeal [See Indcondo Building Corporation v. Sloan (C.A.) – Abuse of Process & Issue Estoppel & Indcondo Building Corporation v. Sloan (C.A) – Limitations].
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Mareva injunctions: They’re not just for pre-judgment anymore
The Mareva injunction is a powerful tool for levelling the playing field when dealing with those who, left to their own devices, would dissipate their assets, with a view to frustrating the claims of their creditors. While the commencement of litigation is the traditional juncture to seek such extraordinary relief, based in part on the idea that a defendant might then take steps to dissipate assets, it is not the only stage of the process at which such an order is available. If a Mareva was either not granted, or not sought, at the front end of the process, but then a money judgment is obtained, some defendants might then take steps to remove, conceal or consume assets, while an appeal is pending, thereby exploiting the automatic stay of execution imposed.
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Supreme Court rules on online anonymity – Potential impact on fraud investigations?
On June 13, 2014, the Supreme Court of Canada delivered the landmark decision of R. v. Spencer (“Spencer“). In this decision, Mr. Justice Thomas Cromwell, writing for the Court, set out the ground rules for police to obtain subscriber information from Internet Service Providers (“ISPs”). In doing so, the Court effectively put an end to the practice of the police informally requesting, and ISPs providing, such subscriber data without a warrant.
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Cyber crime is a growing threat
As part of Fraud Prevention Month, the RCMP is rolling out tip sheets to help Canadians protect themselves against an ever-growing number of scams and frauds including a list of “Top 10 Cyber Crime Prevention Tips”. Many of these tip sheets highlight the role of technology in fraudulent schemes and the importance of ensuring that personal information remains secure and confidential. For example, the RCMP warns against various forms of online shopping fraud, such as where fraudsters sell products at deeply discounted prices so they can steal the personal information and payment card details of unsuspecting buyers.
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