The general rule in bankruptcy is that a debtor receives a “fresh start” and is discharged from prior debts, but this is subject to certain exceptions. Subsection 178(1) of the Bankruptcy and Insolvency Act (BIA) sets out eight classes of debts that are not released by an order of discharge including an exception for debts that arise out of fraud. In Poonian v. British Columbia (Securities Commission) the Supreme Court of Canada adopted a narrower interpretation of whether a claim should survive bankruptcy under…
In a decision released in 2023, Justice Vermette of the Ontario Superior Court rejected an application to set aside an arbitration award on procedural fairness and jurisdictional grounds. This decision clarified when Ontario’s International Commercial Arbitration Act (the “ICAA”) applies and confirmed that arbitration awards may only be set aside by courts on narrow grounds. Background A group of accredited investors who had invested funds in EDE Capital—an investment company—brought a claim to arbitration on the basis of misrepresentation as to…
A bankruptcy discharge releases the debtor from pre-bankruptcy debts or liabilities. The purpose is to give the debtor a “fresh start” from excessive debts that cannot be repaid, except in certain situations such as where the debt arises from deceitful or fraudulent conduct. In Poonian v. British Columbia (Securities Commission), the British Columbia Court of Appeal held that securities sanctions are excluded from bankruptcy discharge. This is significant because this decision diverges from other Canadian appellate decisions.
David Holden was recently convicted of defrauding Canadian investors in Seaquest Corporation and Seaquest Capital Corporation of more than $54-million in a complex ponzi-scheme. In related civil proceedings our team acted to obtain significant recoveries for some of Holden’s victims. Sadly, this was not the first time that Holden had defrauded investors.
On November 15, 2018, the Supreme Court of Canada granted Christine DeJong Medicine Professional Corporation’s (“DeJong”) application for leave to appeal from the decision in DBDC Spadina Ltd. v. Walton, 2018 ONCA 60. By granting leave, Canada’s highest court will weigh in on the liability of “victims” of fraud as against one another.
In 1169822 Ontario Ltd. v. Toronto-Dominion Bank 2018 ONSC 1631 Justice Dunphy of the Ontario Superior Court decided a case where investors in a failed Ponzi scheme sought recovery from the financial institution used by the fraudster to deposit funds. The key takeaways from the case are: it confirms that a financial institution can be liable where it has actual knowledge (willful blindness or recklessness will also suffice) that a customer is using the accounts at the bank to committed a fraud against third parties; and…
Dubbed the ‘Magic Lady’ by the media for perpetrating a $100 million Ponzi scheme, Rashida Samji faced administrative proceeding brought by the BC Securities Commission (“Commission”) as well as criminal charges. The Commission found in 2014 that she perpetrated a fraud, imposing a disgorgement order of almost $11 million and a $33 million administrative monetary penalty (“AMP”) to serve as “a specific deterrent to [Samji] and as a general deterrent to others who would engage in similar fraudulent schemes.” On December…
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.
On May 26, 2016, the British Columbia Provincial Court dismissed Rashida Samji’s request for a stay of criminal fraud charges in R v. Samji. The British Columbia Securities Commission had previously levied an Administrative Monetary Penalty (“AMP”) of $33 million against Samji, in relation to what the British Columbia Securities Commission found was a $100 million Ponzi scheme perpetrated by Samji between 2003 and January 2012. Samji had earned the nickname the “Magic Lady” for the large profits she claimed to generate for clients. Samji argued that the AMP was essentially a criminal penalty and the stigma that she has suffered as a result of media coverage amounted to criminal punishment. In light of the AMP, she argued that the Charter prevented double prosecution under both the Securities Act and Criminal Code.
Last year, we reported on the sentencing decision of Justice Danyliuk of the Saskatchewan Court of Queen’s Bench in R v Fast. In the lower court, the daughter of the main architect of the fraud was sentenced to 30 months incarceration, and ordered to pay $1,000,000 in restitution. The daughter was the in-house accountant of the company that the fraud was run through and had been found criminally responsible for permitting the fraud to continue by her acts and omissions. In…