The equitable doctrine of undue influence is there to prevent one person from taking advantage of their position of power and authority over another person. This inequity in power between parties can vitiate the weaker party’s consent to an agreement, as they were unable to freely exercise their independent will. In other words, they would […]
Category Archives: Asset Recovery & Enforcement
Judgment Debts, Fraud and Bankruptcy
Many people assume that bankruptcy protects them from all creditors, across the board, however, this is not the case. In certain circumstances, debts may still be enforced even after a discharge in bankruptcy. When a creditor sues a debtor and a judgment is awarded, this judgment may survive an assignment into bankruptcy in certain circumstances. […]
Mareva Injunctions: Freezing Assets Before Judgment
The remedy of a Mareva injunction is so named having adopted the name of the plaintiff company in a 1975 English Court of Appeal decision (Mareva Compania Naviera SA v. International Bulkcarriers SA). Such an order prohibits the dissipation of the defendant’s assets. In effect, it provides a form of pre-judgment execution and has the […]
Mortgage Enforcement and Penalties
Introduction The general commercial practice for lenders is to include a contractual term imposing a greater interest rate if the loan goes into arrears. This is both an incentive and a deterrent. The borrower is motivated to keep the loan from defaulting and is, therefore, more likely to pay on time to prevent the increased […]
Annulling An Assignment into Bankruptcy
Introduction: The life of a creditor in the commercial world is not always easy. Debtors will manufacture defences, avoid summary judgment etc. Debtors may sometimes turn to the Bankruptcy and Insolvency Act (BIA) for relief. They make an assignment into bankruptcy to bring their financial problems to a resolution, usually in the hopes of paying […]
Piercing the Corporate Veil: A Case Study
Introduction: We have previously written about the circumstances under which our courts will pierce the corporate veil. The issue is always a tempting one. Stepping over the line, however, is not terribly easy. The temptation of collecting multiple millions for deserving plaintiffs is strong, as seen below, but carries with it considerable risk. In this […]
A Saga of Debt Avoidance
Both the Ontario Superior Court of Justice (“ONSC”) and the Court of Appeal for Ontario (“ONCA”) have each had a share of the ongoing debt collection saga between a judgement creditor and the debtor company in Lo Faso v. Ferracuti. The latest battle, discussed below, deals with the issue of whether, and when, amendments sought […]
If there were no bad people, there would be no good lawyers
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‘Overbroad And Overreaching’, Court Of Appeal Overturns Anton Piller And Mareva Orders, Sends Warning To Overzealous Plaintiffs
The Alberta Court of Appeal recently set aside a number of Anton Piller and Mareva orders against certain defendants in Secure 2013 Group Inc. v Tiger Calcium Services Inc., 2017 ABCA 316. While the case originates in Alberta, the Court of Appeal’s commentary on broad and overreaching Anton Piller and Mareva orders serves as a warning for […]