Mareva orders, also known as freezing orders, may be granted when there is a risk that a defendant might move its assets out of reach of the court’s jurisdiction. Mareva orders can freeze assets owned directly or indirectly by a defendant. Oftentimes a defendant subject to a freezing order has other creditors seeking repayment. Can a creditor enforce its claim against the frozen assets? Yes, but the creditor must come to the court with clean hands and should not make loans…
Background In Li et al. v. Barber et al., the Ontario Superior Court of Justice dismissed a motion by two “Freedom Convoy” organizers to release $200,000 of previously frozen funds needed to retain legal counsel to defend a class action lawsuit. Notwithstanding the nuances of this particular case, this decision is important because the court clarified that the defendants needed to meet a high evidentiary threshold to access frozen funds. The underlying facts of this case are well-known. A putative class…
In a recent Commercial List Decision, Justice Koehnen granted an injunction to prevent a party from enforcing a settlement agreement on the basis that the settlement had been induced by fraud.
In Amphenol Canada Corp v. Sundaram, 2020 ONSC 328 (“Amphenol Canada“), the Ontario Divisional Court confirmed that a prima facie showing of fraud and dissipation in the context of a Mareva injunction may have additional consequences for defendants, including presumed prejudice in terms of that defendant’s ability or inclination to satisfy future cost awards.
In Wescom Solutions Inc. v Minetto, the Ontario Court of Appeal confirmed that the test for wilful blindness has the same standard in criminal and civil proceedings, which means asking whether a defendant was in fact suspicious and chose to ignore those suspicious, rather than whether defendant objectively should have been suspicious.
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). The underlying dispute involved an employee who took advantage of weak internal compliance mechanisms to draft a number of fraudulent cheques. The employee made the cheques payable to entities the employer dealt with, as well as two non-existent entities with names similar to those of real suppliers. The…
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.
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.
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.
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].