Bradley Adams

The trustee in bankruptcy moved for a phase-one determination that profit payments made by Douglas Grozelle to net winners in a fraudulent Ponzi scheme were void as against creditors and recoverable for the estate.

The court found the hallmarks of a Ponzi scheme, held insolvency and fraudulent intent could be inferred globally, and concluded the payments were void under the Fraudulent Conveyances Act and not saved by good-faith or good-consideration defences.

The court approved a two-stage insolvency process: common liability issues resolved summarily now, with individualized quantum determinations in phase two.

The winners’ cross-motion for broad directions attacking the trustee’s process and authority was dismissed.

Following a successful appeal by the appellant, the parties were unable to agree on the costs of the underlying summary judgment motion.

The respondent argued that costs should be reserved to the trial judge and that the amount claimed was excessive.

The Court of Appeal followed its general practice of deciding costs immediately and awarded the appellant its requested partial indemnity costs of $47,660, finding the amount reasonable given the complexity and importance of the motion.

The court declined to interfere with a separate costs order regarding a co-defendant, as it had not been raised on appeal.

This is an appeal from a summary judgment motion.

The appellant, 4342 Queen St. Niagara Holdings Inc. ('Queen'), challenged a summary judgment ordering it to pay Arcamm Electrical Services Ltd. ('Arcamm') nearly $1 million for electrical repair services.

Queen argued that Arcamm's alleged contributory fault for damages to electrical transformers raised genuine issues for trial and that granting summary judgment risked inconsistent findings with a related subrogated claim.

The Court of Appeal allowed the appeal, finding that the motion judge erred by failing to properly address the contributory fault defence and by not recognizing the genuine issues for trial and the risk of inconsistent findings.

The Court affirmed that contributory fault can be raised as a defence in contract actions to apportion damages.

The summary judgment was set aside, and Queen was ordered to bring a motion to consolidate the actions.

Arcamm Electrical Services Ltd. (Arcamm) brought a motion to quash an appeal by 4342 Queen St. Niagara Holdings Inc. (Queen) to the Court of Appeal for Ontario, arguing that the underlying summary judgment, granted in a Construction Act action, should have been appealed to the Divisional Court.

The Court of Appeal dismissed Arcamm's motion, holding that the appeal properly lay with the Court of Appeal because the summary judgment was granted under Rule 20 of the Rules of Civil Procedure based on a contractual claim, not under the Construction Act, and the court's jurisdiction is determined by the substance of the order made.

The defendant mother brought a motion to stay her son's action against her pending the resolution of related corporate litigation in Toronto.

The son alleged that millions of dollars were transferred to his mother by his father's companies to defraud creditors.

The court dismissed the motion to stay, finding it to be a strategic stalling tactic and noting that the son appeared to have a strong case regarding the unexplained transfers.

The defendant brought a motion to stay or dismiss the plaintiffs' action, arguing that Ontario lacked jurisdiction simpliciter, that a forum selection clause mandated disputes be heard in British Columbia, or alternatively, that British Columbia was the more convenient forum.

The plaintiffs had sued for the right to exercise stock options under a consulting relationship.

The court found that Ontario had jurisdiction simpliciter because the consulting agreement was formed in Ontario.

The court declined to enforce the forum selection clause, finding it was not properly incorporated by reference into the stock option agreement and the plaintiffs were not given adequate notice of it.

Finally, the court held that the defendant failed to establish that British Columbia was clearly the more convenient forum.

The motion was dismissed.

The appellants sought a declaration that the respondents' foreclosure on pledged shares was void for non-compliance with the notice requirements of the Personal Property Security Act (PPSA) and sought an order for the return of the shares.

The application judge dismissed their application, finding the respondents acted within a contractual right of foreclosure outside the PPSA and denied equitable relief.

On appeal, the Court of Appeal found that while s. 17.1(2) of the PPSA, which allows secured parties with control over investment property to deal with collateral as per the security agreement, does not permit foreclosure without notice, the respondents had, in fact, provided adequate notice under Part V of the PPSA.

The appeal was dismissed.

The appellants appealed a trial judgment finding them unjustly enriched by the transfer of two valuable licenses without payment.

The appellants argued that where contract negotiations have failed, courts cannot use unjust enrichment to impose a contract on the parties.

The Court of Appeal rejected this submission, distinguishing the case from Skibinski v. Community Living British Columbia.

The trial judge had found as a fact that the appellants had no reasonable expectation of receiving the licenses for nothing.

The appellants also challenged the damages award, but the Court of Appeal found the trial judge's assessment entitled to deference.

The appeal was dismissed with costs awarded to the respondents.

The court considered a request from Hudson's Bay Company (HBC) to reconsider a previous costs order, seeking $36,711.83 in costs payable forthwith, arguing that despite divided success on earlier motions, it was entirely successful in having the plaintiff's action struck as statute-barred.

Nygård International Partnership (Nygård) opposed, arguing the court was functus officio and that the original "costs in the cause" order was appropriate.

The court found it was not functus officio but maintained its original discretion, affirming that "costs in the cause" was fair and appropriate given the intertwined motions and divided success, allowing the trial judge to determine costs based on the whole proceedings.