Protecting or preserving assets during a time of insolvency is a natural temptation of debtors. Some even take a proactive approach and design contractual terms that aim to do much the same should insolvency ever arise in the future. However, when such terms are exercised, they run into possibly infringing the “anti-deprivation” rule. What is […]
Category Archives: Civil Fraud
“Knowing Assistance” & “Knowing Receipt” in the Fraud of a Fiduciary
A fiduciary’s responsibilities or duties are both ethical and legal in nature. The duty arises when a person (principal) willingly accepts and undertakes to enter into a fiduciary relationship on behalf of another party (the equitable owner) in relation to some beneficial interest. At that point the principal is required to act in the best […]
The Enforceability of Arbitration Clauses in Ontario
Whether in a shareholder agreement or an employment contract, the enforceability and permissible scope of an arbitration clause have been hot topics in Ontario courts in recent years. Below, we will look at how the courts have interpreted these issues and what it means for arbitration clauses in contracts going forward. What is an Arbitration […]
Fraud and Constructive (Equitable) Fraud
The fundamental core of a finding of fraud is the moral turpitude of the defendant. We base liability for fraud or deceit upon the idea that to lie or to deceive are morally wrong acts. Such acts, therefore, merit legal sanctions when they result in suffering by the victim. But there are also situations where fraud […]
The Association of Certified Fraud Examiners
Our firm has written repeatedly of instances of fraud affecting businesses in Canada, whether by external fraudsters or internal employees. The Insurance Bureau of Canada reports that fraudulent activity costs Candian businesses, including large corporations, small companies and non-profits, millions of dollars per year. Sadly, many fraudsters are even using the current health crisis related […]
Fraud Allegations & The Calculation of Costs
When a plaintiff alleges fraud and subsequently fails to sufficiently prove the allegations in court, the defence will invariably ask for increased costs. The common law in Canada is clear that where a plaintiff alleges a defendant has engaged in deceit, the court may order increased costs against the plaintiff when those claims are not […]
What Constitutes a Fraudulent Conveyance?
The recent case of Anisman v. Drabinsky is a summary judgment decision from the Ontario Superior Court (ONSC) with guidance for creditors on how to approach issues relating to discoverability and limitation periods if they suspect their debtors’ real property has been fraudulently conveyed. Debtor Transfers Property to Spouse for Nominal Amount The plaintiff, a […]
Willful Blindness and Fraud
When it comes to fraud, people sometimes think that they can claim innocence if they remain unaware of the details. However, a finding of willful blindness, or deliberate ignorance of what should be obvious, is not enough to escape liability in the case of fraudulent activities. A recent decision demonstrated that a defendant deliberately chose […]
Ontario Establishes Serious Fraud Office
This past summer the Ontario government, quietly created a new organization whose responsibility is to investigate and prosecute complex fraud cases and white-collar crime. It is known as the Serious Fraud Office, or SFO. The office is modelled after similar agencies in the United Kingdom and the United States. Its goal is to combine the […]
Extending the Time in Which to Seek Leave to Appeal
The Divisional Court (ONSC) recently dealt with this issue in Amphenol Canada Corp. v. Sundaram (2020). There the plaintiff had obtained an ex parte Mareva injunction against all of the defendants in a civil fraud matter, effectively freezing their assets. The plaintiff then sought a continuation of the injunction and was successful. One of the […]