Brandon J. Carter

The appellant, Carmen DaSilva, appealed a lower court judgment that declared a transfer of her husband's one-half interest in a property to her as a transfer for undervalue, void against the trustee in bankruptcy, and set it aside.

The appeal raised three grounds: error in declaring the transfer at undervalue, error in finding the husband insolvent at the time of transfer, and error in finding an intention to defraud creditors.

The Court of Appeal dismissed all grounds, finding no palpable and overriding error in the application judge's findings regarding undervalue and insolvency, and noting that comments on intent were obiter.

This decision addresses the costs of a summary judgment motion brought by the Plaintiff, Jackman Construction Limited, which was largely unsuccessful.

While the Plaintiff's motion for summary judgment was dismissed, some ancillary procedural relief was granted.

The parties were unable to agree on costs.

The court, applying Rule 57.01 of the Rules of Civil Procedure, found the Defendants, Collin Lee Brown and Cristen Lee-Ann Brown, were presumptively entitled to costs as they successfully dismissed the primary motion.

The court declined to award substantial indemnity costs, finding no "improper conduct" by the Plaintiff under Rule 20.06.

Partial indemnity costs were fixed at $28,421.36, inclusive of fees, disbursements, and HST, payable by the Plaintiff to the Defendants.

The defendant, Northfield Trim and Door Inc., brought a motion to remove the plaintiff's counsel of record, Irwin Duncan, on the basis of a conflict of interest.

Duncan had previously served as corporate solicitor for the defendant and drafted key agreements (Shareholders' Agreement and Employment Agreement) now at issue in the plaintiff's wrongful dismissal action.

The court found that Duncan breached his duties of commitment and candour by terminating his retainer with the defendant without notice to act for the plaintiff in a related matter.

The court concluded that the retainers were sufficiently related, inferring that confidential information was imparted, and that Duncan owed an ongoing fiduciary duty to the defendant.

The motion was granted, and Duncan was removed as counsel.

This application concerned a creditor's attempt to set aside a property transfer from a bankrupt debtor to his spouse as a 'transfer at undervalue' under the Bankruptcy and Insolvency Act (BIA).

The court found that the debtor's half-interest in the property was transferred for nil consideration, that the spouses were not dealing at arm's length, and that the transfer occurred within the five-year period preceding bankruptcy.

Crucially, the court determined that the transfer rendered the debtor insolvent by divesting him of his most valuable asset.

Consequently, the court declared the transfer void against the trustee, making the property available for distribution to creditors.

The Conlons (plaintiffs) brought a motion to either stay or transfer their Small Claims Court (SCC) action against JP Quality Care Construction Inc. and James Palmerton to the Superior Court of Justice (SCJ) and consolidate it with their existing SCJ action.

The SCC action involved claims for unpaid invoices and unjust enrichment related to construction services, while the SCJ action involved breach of contract and unjust enrichment claims by the Conlons, and a significant counterclaim by JP for business interference and defamation.

The court denied the transfer, finding the SCC issues not complex enough to warrant it, but granted a stay of the SCC action pending the determination of the SCJ action to avoid multiplicity of proceedings and ensure the Conlons' access to justice, as their counterclaim exceeded the SCC monetary limit.

The appellants appealed the dismissal of their application in contested estate proceedings challenging the validity of powers of attorney executed by their mother in 2013.

The appellants sought to invalidate the 2013 powers of attorney and reinstate 1995 powers of attorney.

The central issue was whether the testator had the requisite capacity to execute the 2013 powers of attorney.

The application judge found that the appellants failed to rebut the presumption of capacity with clear evidence on a balance of probabilities.

The Court of Appeal upheld the dismissal, finding no error in the application judge's assessment of the evidence or exercise of discretion.