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
Continue Reading Supreme Court of Canada Shifts the Risks of Cheque Fraud
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 Documents Prove Fraud in Summary Judgment Decision
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 When should a fraudulent conveyance action be brought?
In DBDC Spadina Ltd et al v Norma Walton et al, Justice Newbould of the Ontario Superior Court recently granted a motion for summary judgment on the basis that there was sufficient evidence to justify a finding of fraud. The decision reflects the guidance set out in the landmark Supreme Court Canada decision Hyrniak v. Mauldin, 2014 SCC 7, which recognized that the adjudicative process can be fair and just without requiring the expense and delay of a trial.
Continue Reading No trial required: Summary Judgment granted in fraud case
In a recent 2016 decision in Greenberg v. Nowack, Justice Perell of the Ontario Superior Court of Justice dismissed a contempt motion against a stubborn and non-compliant debtor in a judgment debtor examination gone awry. Although sympathetic to the Plaintiffs’ frustration at being unable to recover monies on their judgement, the Court ruled that imprisoning the debtor would be harsh and ineffectual. Justice Perell made this observation about the contempt motion:
Continue Reading Court’s contempt power not to be used to coerce payment
Ponzi schemes and other fraudulent arrangements that operate on a large scale often involve complex networks of activities, actors, and funds transfers. Given the number of players that may be required to bring about such a scheme, the tort of civil conspiracy provides a potential means for recovery for fraud victims.
As outlined in the Supreme Court of Canada’ decision in Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd. civil conspiracy in Canada is comprised of two related but distinct categories. The first category is the “lawful means” or “simple motive” conspiracy, and the second is the “unlawful means” or “unlawful conduct” conspiracy.
Continue Reading Using the tort of civil conspiracy
On May 4, 2015, Justice A.D. Macleod of the Alberta Court of Queen’s Bench certified an omnibus class action in Starratt v. Mamdani, 2015 ABQB 280. The class action involves claims of investment fraud and misrepresentation by the defendants brought on behalf of class members in 21 subclasses. Certification was granted despite the case’s complexity, and the varying alleged harms to class members arising from the alleged fraud and misrepresentations of the defendants.
Continue Reading Class action certified in alleged fraudulent investment scheme
On May 5, 2014, Ontario’s Divisional Court dismissed the appeal of Otto Spork, Konstantinos Ekonomidis, and Natalie Spork from the decision of the Ontario Securities Commission (“OSC”) that they had breached Ontario’s securities law and engaged in conduct contrary to the public interest. Otto Spork, Konstantinos Ekonomidis, and Natalie Spork were ordered to disgorge $6.75 million, $325,000 and $165,000, respectively, out of a total $23 million that had been obtained from investors. Virtually all of the $23 million was lost.
Continue Reading Disgorgement Remedy: Recent Developments in the Province of Ontario
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].
Continue Reading The evolution of fraudulent conveyance – Indcondo v. Sloan
In a recent post, we explained that the Ontario Securities Commission (“OSC”) had declared its intention to move forward with “no-contest settlements.” These agreements would permit the settlement of enforcement proceedings without requiring the respondent to admit to any misconduct.
Continue Reading OSC engages in its first no-contest settlements