October 2011
Disappointment
Attorney General Canada v. GlassCell Isofab Inc.
Employee deductions – super priority for CRA – Creditor’s Relief Act
They Made Me
Royal Bank of Canada v. Jaffer
Non est factum – did not read agreement – claimed of debtor that creditor forced money on him
Depends x3
Re Edwards
Provincial limitation statute applies in addition to limitation periods under Bankruptcy and Insolvency Act (BIA) – paramountcy
August 2011
Severance
Royal & SunAlliance Insurance Company v. Muir
Joint tenants – tenants in common – aborted sheriff’s sale severs joint tenancy and creates tenancy in common – property passes to estate
Depends Again
Re Edwards
Provincial limitation statute is inapplicable if trustee is using limitation periods under Bankruptcy and Insolvency Act (BIA) – paramountcy
June 2011
Priority
Thibodeau v. Thibodeau
Equalization payment – bankruptcy – divide property – ranking of spouse with other creditors – equitable assignment – equitable trust
April 2011
Depends
Re Edwards
Limitations period – deemed knowledge of trustee – fraudulent preference
Indcondo Building Corporation v. Sloan
Fraudulent conveyance – section 38 BIA – section 12 Limitations Act- limitations period starts at earlier of knowledge of trustee and creditor
February 2011
Shoulda
Toronto Standard Condominium Corporation No. 73 v. 1 King West Inc.
Limitations Act – Fraudulent conveyance – discoverability – deemed discoverable – title searches necessary
December 2010
Injunction
Royal Bank of Canada v. Boussoulas
Mareva injunction – allegations of fraud – conduct of plaintiff disentitling it to injunction – discretion
October 2010
Innocence
Isaacs v. Royal Bank of Canada
Fraud – innocent parties – knowledge of facts – no fiduciary duty – no duty to follow guidelines
August 2010
Mine
Cuthbert v. TD Canada Trust
Payment under mistake of fact – consideration – change of position
Forgery
CIT Financial v. Kingsley
Document of no effect – handwriting expert
June 2010
Criminal
Re White
Bankruptcy offences – prosecution with leave – considerations
Jail
Telehop Communications v. Chamberlain
Failure to appear for judgment debtor examination – contempt – jail imposed
April 2010
In Time
Limitation period – guarantee – demand necessary
SABS
Statutory accident benefits – garnishment
February 2010
Maintenance #2
De Coito v. DeCoito
Priority for maintenance arrears over execution creditor – unjust enrichment
Stretch
Toronto-Dominion Bank v. Solferino Café Inc.
Creditor complains about investment advice – bank not liable for bad investment – attempted new duty of care
December 2009
Appraisals
TD Canada Trust v. 2086122 Ontario Inc.
Appraisal of assets too high – bank an agent – bank an investment advisor – ambiguity between documents
Partner
The Toronto-Dominion Bank v. Campian
Employee partner with borrower – agent of bank – borrower to claim contribution against partner not bank
October 2009
Wills
Ker Estate v. DeRose
Seize payments from estate to beneficiary – money that has vested may be garnished if not paid and intercepted
Intention
Royal Bank of Canada v. Clarke
Fraudulent conveyance – prior intention to transfer does not save a transfer made after debts were incurred
August 2009
Incorporation
Far East Products Ltd. v. 1104742 Ontario Ltd.
Oppression section – section 248 – protect creditor – stripping corporation – director/principal personally liable
She tries, she lies
Re Mako
Application for discharge from bankruptcy – alleged causes were gambling and sending money to family abroad – debtor not believed – neither honest nor misfortunate
June 2009
Circle of Funds
Haaksma v. Haaksma
Fraudulent debtor – money going around in a circle – backdated documents – hidden trust – equity without clean hands – resulting trust
April 2009
New Facts
2105673 Ontario Inc. v. Chorny
Bank of Nova Scotia v. Williamson
Limitation period – guarantee – demand necessary – corporation dissolved – revival – effect
February 2009
Norwich order
Isofton v. TD Canada Trust
Force supply of information from third party – identify evidence – find and preserve evidence – trace and preserve assets – reasonable claim – only practicable source
Wrong remedy
Re Assaf Estate
Garnish SCJ accountant – stop order under Rule 72.05 – motion under section 23 of Creditor’s Relief Act
December 2008
Demand
TD Canada Trust v. B&B Enterprises (London) Ltd.
Guarantee – demand for payment – restructuring part of demand – security preservation
Fiduciary (bankruptcy)
Ronee v. Machalik
Section 178 – fraud in fiduciary capacity – requirements for fiduciary
October 2008
Whoops
Bank of Nova Scotia v. Jorgensen
Line of credit not closed – husband uses it and wife knows nothing – wife not liable – husband bankrupt – no fresh consideration for line after bankruptcy
Interpleader
Marks & Marks LLP v. Galetta
Interpleader – disinterested stakeholder – cannot be forced to pay more than what is not in issue
August 2008
Non-Disclosure Revisited
The Toronto-Dominion Bank v. Cushing
discharge mortgage – bank error to allow use of line of credit – bankruptcy – section 178 – false pretences – fraudulent misrepresentation
June 2008
Evidence
Salna v. Hie
fraudulent conveyance – insurance – garnishment – evidence – proof
April 2008
Arrogant
Canadian Imperial Bank of Commerce v. McDonald
Mortgagee not supplying statement – breach of agreement between counsel – costs
Rate
Capital One Bank v. Matovska
Bank of Montreal v. Dabreka
Post-judgment interest rate – pre-judgment interest rate – choose contractual rate
February 2008
Fraudbuster
Reviczky v. Meleknia
Fraud – priority – deferred indefeasibility – opportunity to avoid fraud – deal with fraudster – duty to enquire – agency
December 2007
What If
South Holly Holdings v. Nguyen & Ngoc
Adelaide Capital Corp v. Minott
Extending writ of seizure and sale – breach of agreement to settle judgment – mistake in effect of prior agreement – interest to be applied – discretion if delay
October 2007
Extension
Adelaide Capital Corp. 412259 Ontario Ltd.
Extending writ of seizure and sale – tests for leave after writ expires – leave for garnishment after 6 years
August 2007
Maintenance
Flewelling v. Flewelling
Writ of execution loses to maintenance order – Family Law Act 2(11) – Creditors Relief Act 4(1)
Shea v. Fraser
Separation agreement provides for equalization payment – payment survives bankruptcy if it is substitution for maintenance or support – Bankruptcy and Insolvency Act section 178(1)(c)
June 2007
Knowledge
Bank of Nova Scotia v. Villafuerte
Agent misrepresentation – within scope of agency – while agent – binds principal
Re Young
Hazardous business activities – section 173(1)(e) of BIA – delay in discharge only
April 2007
Land Fraud #2
Lawrence v. Wright
Fraud – priority – deferred indefeasibility
Credit Cards
Dahl v. Royal Bank of Canada
Interest – from transaction date – from merchant’s payment date
February 2007
Land Fraud
Toronto-Dominion Bank v. Jaing
Household Realty v. Liu
Rabi v. Rosu
Lawrence v. Wright
Fraud – priority – title insurance
December 2006
Non-Disclosure
Communication Technology Credit Union v. Schell
Bankruptcy – section 178 – fraudulent misrepresentation – discharge debt – non-disclosure, concealment, strategic silence
Prudence Re-Visited
Manufacturers Life Insurance v. Elgie
mortgagee in possession – deal prudently and diligently with security – failure – resulting damages – interest- costs
October 2006
ILA Notes
Webb v. Tomlinson
Independent legal advice – meeting notes – advice on failure of businesses in general
Gall
Joseph v. Lefaivre Investments (Ottawa) Inc.
Party to action sues other party and solicitor for conspiracy and negligence for commencing action – not unlawful – no duty of care
August 2006
Remarkable
MCAP Service Corp. v. Toronto-Dominion Bank
failure to register mortgage – equitable mortgage – priority between mortgagees
Ingenuity
Royal Bank of Canada v. 1130703 Ontario Ltd.
civil action – bankruptcy petition – request to stay petition under section 43(11) BIA; no bona fide dispute
June 2006
Prudence
Manufacturers Life Insurance v. Elgie
mortgagee in possession – deal prudently and diligently with security – failure – resulting damages
Interest Squeeze
NBY Enterprises Inc. v. Duffin
increased interest rate on default – penalty due on missed or late payment – section 8 of Interest Act – unenforceable
April 2006
Mortgage Fraud
Toronto-Dominion Bank v. Jaing
Household Realty Corp. v. Liu and Chan
CIBC Mortgages Inc. v. Liu and Chan
deferred indefeasibility – immediate indefeasibility – Land Titles Assurance Fund – validity of fraudulent mortgage
February 2006
Guile
Chan v. Stockwood
fraudulent conveyance – scheme hinders, delays, or defeats creditors – inadequate consideration – lawyer devises plan – is lawyer liable
Trust
Kajtar (trustee of) v. Bannerman
property held in trust not part of estate
December 2005
Negligence
Bank of Montreal v. Witkin
Canada Trustco Mortgage Company v. Pierce Estate
negligent misrepresentation – fiduciary duty – setoff – mitigation of damages
October 2005
Obstructionist
Re Zolnierowicz
Bankruptcy discharge – conditional – suspended – fresh start – fiscal car wash
Fire Gone
Royal Bank of Canada v. State Farm Fire
Mortgage clause – statutory condition no. 4 – notice after vacancy – policy void
August 2005
Illness
Canada Trustco Mortgage Company v. Pierce Estate
Failure to comply with lending guidelines – cause of action for borrower – borrower mentally ill – Trustee Act setoff – limitation period
June 2005
Smell
Pilot Insurance Co. v. Foulidis
Fraudulent conveyance – smell factor – badges of fraud – purging fraud
April 2005
Conflict
Canada Trustco Mortgage Company v. Park
Tenants Protection Act – Mortgages Act – conflict as to priority – termination if fixed term of tenancy
February 2005
Fraudulent Conveyance
Grefford v. Fielding
Certificate of pending litigation before judgment in main action – tests – high probability of success – defeating creditors – balance of convenience
December 2004
Fiduciary (Bank)
Scavarelli v. Bank of Montreal
Fiduciary duty – advice given – small business loan
October 2004
Off Limits
Amherst Crane Rentals Ltd. v. Perring
RSP benefits are exempt if paid to designated beneficiary under Plan after death
August 2004
Property Lost
Re Shelson
Bankruptcy discharge – effect on prior acquired property – trustee reaching back to claim
(see also Murphy v. Stefaniuk Ont CA 2007)
Role Reversal Appeal
Re Fields
Execution Act – $5,000 vehicle exemption
June 2004
Here Today
Royal Bank of Canada v. Matutschovsky
Settlement set aside – no independent legal advice – discretion
Prove It
Royal Bank of Canada v. Trentadue
Proof – Visa or MasterCard – credibility – collectors’ notes
Valentine
Toronto-Dominion Bank v. Valentine Estate
Demand loan – insurance policy – void on demand – negligence – leave to appeal to Supreme Court refused
April 2004
Fire
Royal Bank of Canada v. State Farm Fire
Mortgage clause – statutory condition no. 4 – notice after vacancy – policy void
Pillar Update
Pillar Sausages & Delicatessen Ltd. v. Cobbs
costs awarded on substantial indemnity basis – Court of Appeal dismisses appeal
February 2004
Error
National Trust v. Newmaster
Floating mortgages – discharge – line of credit not fully paid – prejudice to debtor – reliance of lawyer
December 2003
Contempt
Bressi (Trustee of) v. 1418146 Ontario Limited
Writ of sequestration – contempt of court – breach of order – bankruptcy – front man
October 2003
Persistence
Pillar Sausages & Delicatessen Ltd. v. Cobbs
Oppression – stripping of assets – shareholder liable to creditor
August 2003
Credit
Haskett v. Equifax Canada Inc.
Class action – showing pre-bankruptcy debts – cause of action – economic damages in tort – proximate relationship – policy reasons – parent corporation not liable for subsidiary corporation
June 2003
Collection Agents
Tran v. Financial Debt Recovery
Collection Agencies Act – harassment – defamation – interference with economic relations – reasonable apprehension of bias
April 2003
Undue Influence No. 2
CIBC Mortgage Corporation v. Rowatt
Undue influence – presumption of evidence – unconscionability only – ILA – no negligence for not following own procedures -
February 2003
Role Reversal
Re Shields
Bankruptcy – Execution Act – exemption for car less than $5,000 – creditor cannot claim exemption for bankrupt/debtor
RSP
Amherst Crane v. Perring
Proceeds of RSP with beneficiary designation – creditors cannot attack proceeds
December 2002
Hard Cases
Toronto-Dominion Bank v. Valentine Estate
Demand loan – insurance policy – void on demand – negligence
October 2002
Duress
Gedja Holdings Inc. v. Gondosch
Undue influence – guarantee – constructive knowledge – independent legal advice – ILA
August 2002
Fraud
Genereux v. Carlstrom
Fraudulent conveyance – future creditors
June 2002
Don’t Understand
National Bank of Canada v. Picton
Independent legal advice – ILA – non est factum – joint and several liability
Who Am I
Cina v. Ultratech Tools and Gauge Inc.
Business name – garnishment
April 2002
Trouble
Cook v. Craig
Independent legal advice – ILA – non est factum – breach of fiduciary duty – withholding information – conflict of interest
Thomas v. Quality Mechanical Services Inc.
Shareholder not able to sue for corporation’s cause of action
February 2002
Dead to Rights
Avco Financial Services v. Norman
Loan insurance – duty of loans officer to explain – insurance
denied – negligence of loans officer
December 2001
Ingenious
HSBC Bank of Canada v. Drapery & Blind Shop Inc.
Canada Small Business Financing Act
2923238 Canada Ltd. v. Royal Bank of Canada
injunction – stall tactics – notice of intention to enforce – forbearance agreement