Brian Kolenda

The appellant sought to recover funds allegedly stolen by a fraudster and then paid as restitution to an earlier victim, advancing tracing, knowing receipt, and unjust enrichment claims against an individual respondent.

The Court of Appeal majority held there was no basis to interfere with the trial judge’s exclusion of substantive hearsay statements from the fraudster, and no palpable and overriding error in the finding that a CAD$150,000 restitutionary payment was not traced on a balance of probabilities to the appellant’s funds.

As to a separate CAD$40,000 payment, the majority held that even assuming tracing into the corporate respondent’s account, there was no basis for imposing personal liability on the individual respondent because the corporate tax debt paid was not his personal liability at the time.

The appeal was dismissed with costs, over a dissent that would have allowed the claim for CAD$190,000.

This costs endorsement followed prior motion rulings concerning advancement and indemnification related to U.S. criminal proceedings.

The court held the successful party was entitled to full indemnity costs because the motion costs fell within the defined term “Legal Fees” under an earlier order governing advancement rights.

The court rejected objections based on alleged duplication of counsel and excessive staffing, particularly where the responding party provided no evidence of its own costs.

The only reduction concerned the investigator’s account, which was cut by 50 percent for attendance at discoveries.

Full indemnity costs were then fixed in the amount stated in the endorsement, plus a separate U.S. dollar amount.

The appellant appealed an order discharging a Certificate of Pending Litigation (CPL) and a limited proprietary injunction, which allowed the respondent to sell or encumber a property to fund legal defence costs for herself and her parents.

The appellant argued the motions judge erred in assessing its fraudulent conveyance and resulting trust claims, and in allowing the property's equity to fund the father's legal fees.

The Divisional Court dismissed the appeal, finding no legal error in the motions judge's assessment of the claims and no palpable or overriding error in his exercise of discretion to ensure the defendants had access to legal representation.

In a complex fraud action under case management, the parties sought different variations to a previously ordered litigation timetable.

The defendants proposed proceeding with limited examinations for discovery while postponing key examinations until resolution of an appeal concerning access to funds for legal defence.

The plaintiff argued that all discoveries should be delayed to avoid duplicative preparation and increased costs.

The court held that further discovery scheduling was impractical while a pending Divisional Court appeal would determine whether certain defendants could fund their defence.

The judge declined to impose additional discovery deadlines and directed the parties to return for a further case conference within three weeks after the appeal decision, at which point a peremptory trial date might be set.

The plaintiff was defrauded by its employee, who used some of the stolen funds to pay criminal restitution to his former employer, whom he had previously defrauded.

The plaintiff sued the former employer and its principal for knowing receipt and unjust enrichment, seeking to trace and recover the funds.

The court dismissed the action, finding that the plaintiff could not reliably trace the funds, the defendants lacked constructive knowledge of the second fraud when they received the payments, and there was a valid juristic reason for the defendants' enrichment.

The defendants moved to stay or dismiss an Ontario action for lack of jurisdiction and on the basis of forum non conveniens.

The dispute concerned whether a letter constituted a binding agreement requiring the transfer of wireless spectrum licences to the plaintiff.

The court held that Ontario had jurisdiction simpliciter because there was a good arguable case that the contract was made in Ontario and that the action concerned licences constituting personal property located in Ontario.

The defendants failed to rebut the presumptive connecting factors or demonstrate that California was clearly the more appropriate forum.

The motion to stay or dismiss was therefore refused.

The appellant, Barclays Bank PLC, appealed a trial judgment finding its Notice of Early Termination of a complex asset-backed commercial paper transaction invalid and the respondent Devonshire Trust's Notice of Early Termination valid.

The Court of Appeal upheld the trial judge's findings that Barclays' notice was invalid due to its fraudulent misrepresentation, bad faith, and the principle that a party cannot benefit from its own wrong, as Barclays' failure to make liquidity payments contributed to Devonshire's insolvency.

The Court also upheld the validity of Devonshire's notice.

However, the Court allowed the appeal in part regarding the calculation of Barclays' Settlement Amount, substituting a figure of $264 million for the trial judge's $12,000 valuation, subject to deductions for mitigation.

The defendants sought authorization to release additional funds held in trust to pay legal fees incurred in defending litigation involving multiple defendants.

The funds originated from encumbrances placed on residential properties pursuant to a prior consent order permitting borrowing to finance the legal defence of two defendants.

The court was required to determine the proper allocation of legal fees where work performed by counsel benefitted both those defendants and a co‑defendant who was not entitled to access the encumbered property funds.

Applying principles governing payment of legal fees from assets subject to proprietary injunctions, the court concluded that only part of the joint defence work could properly be charged to the trust funds.

The court ordered that the two defendants were entitled to recover 50% of the total legal fees, taxes, and disbursements from the trust account.

The plaintiff university brought an action against its former Assistant Vice-President and others for deceit, conversion, and conspiracy, alleging a false invoicing scheme and misappropriation of university resources for personal home improvements.

The defendants moved for summary judgment, arguing the action was barred by a full and final release executed upon the employee's termination, and that a property transfer was not a fraudulent conveyance.

The plaintiff moved for a Mareva injunction, an Anton Piller order, and certificates of pending litigation.

The court dismissed the defendants' summary judgment motions, finding genuine issues requiring a trial regarding the scope and validity of the release (due to alleged fraudulent concealment) and the intent behind the property transfer.

The court dismissed the plaintiff's motion for a Mareva injunction, finding insufficient evidence of a risk of asset dissipation, but granted certificates of pending litigation against the two residential properties.

The plaintiff university brought a motion seeking to exclude a defendant from attending the out-of-court cross-examination of a witness whose affidavit supported allegations of fraud and a Mareva-style injunction.

The plaintiff argued the defendant’s presence could harm the witness’s mental health due to prior workplace intimidation and depression.

The court reaffirmed that parties have an inherent right to attend examinations and that exclusion requires proof of realistic and substantial cause, such as demonstrated intimidation or prejudice.

Finding no evidence of intimidation during the litigation and insufficient grounds to justify exclusion, the court dismissed the motion.

To ensure a fair and controlled examination environment, the court ordered the cross-examination to be video recorded.

The respondent automobile carrier brought an application seeking a declaration that the applicant automobile manufacturer breached a contract governing delivery routes for vehicle shipments.

The applicant brought a counter‑motion seeking to convert the application into an action on the basis that the dispute raised significant factual controversies, including issues of economic duress, contractual interpretation, and the doctrine of good faith in requirements contracts.

The court held that the dispute involved contested facts and credibility issues that could not properly be resolved on an application record.

The court further noted that the law relating to good faith and requirements contracts was developing and that a fuller evidentiary record was necessary.

The application was therefore converted into an action.

The appellant appealed an order recognizing a foreign default judgment, arguing that the English process denied him natural justice through the registration of the default judgment, refusal to set it aside, denial of an adjournment, and absence of reasons for a costs order.

The Court of Appeal dismissed the appeal, finding that the appellant had ample opportunity to be heard had he complied with the English rules of court, and that the denial of an adjournment was an exercise of judicial discretion.

The court awarded costs to the respondent on a partial indemnity basis.