Gerald Sternberg

This is an appeal concerning a fraudulent conveyance claim.

The appellant sought to enforce a default judgment against properties held in the name of the respondent's deceased wife, alleging a beneficial interest and fraudulent conveyance.

The trial judge found no fraudulent conveyance of real property but concluded that the respondent had a beneficial interest in cash transferred to his wife, which was used for mortgage payments, attributing half of the unexplained funds ($217,000) to fraudulent conveyances based on an adverse inference.

The Court of Appeal allowed the appeal in part, finding the trial judge erred in attributing only 50% of the unexplained deposits to the respondent, as the adverse inference should have applied to the entire unexplained amount given the wife's failure to disclose sources.

The Court increased the amount of fraudulently conveyed cash to $434,000.

The plaintiffs sought leave to issue and register a certificate of pending litigation (CPL) on a residential property, claiming a 50% ownership interest based on an alleged oral agreement and part performance.

The defendant denied a firm agreement, asserting a temporary arrangement and having returned the plaintiffs' payments with interest.

The court applied the two-part test for CPLs, considering whether there was a reasonable claim to an interest in land and the equities.

Despite finding a triable issue regarding the oral agreement, the court concluded that the equitable factors did not favor granting the CPL, particularly as damages were calculable and deemed an adequate remedy.

The motion was dismissed.

The defendants brought motions for leave to file a jury notice and to compel answers to undertakings, while the plaintiff brought a motion for answers to refusals.

The action arose from a motor vehicle accident and was initially commenced under the ordinary procedure, moved to the simplified procedure, and then moved back to the ordinary procedure due to the anticipated length of the trial.

The court granted the defendants leave to file a jury notice, finding the change in procedure constituted a substantial change in circumstances.

The court also ordered the plaintiff to answer an outstanding undertaking regarding her EI file but dismissed the plaintiff's motion regarding refusals.

Costs of $9,000 on a substantial indemnity basis were awarded to the defendants.

The plaintiff, Rosetta Conte, sought to enforce a 2010 default judgment against Gerald Pettle by claiming a beneficial interest in properties held by his deceased wife, Susan Pettle, and alleging fraudulent conveyance.

The court found no fraudulent conveyance of real property or resulting trust regarding the properties themselves, as they were always registered in Susan's name and Gerald did not contribute to the original purchase.

However, the court found that Gerald's cash transfers to Susan after the 2010 judgment constituted fraudulent conveyances of personal property under the Fraudulent Conveyances Act, intended to defeat creditors.

The court attributed $217,000 of unidentified funds in Susan's accounts to these fraudulent transfers and declared them void against the plaintiff, allowing execution against Susan's estate.

The claim was not statute-barred as the two-year limitation period for personal property fraudulent conveyances ran from discovery, which occurred within two years of the action's commencement.

The defendant owner of a motor vehicle moved for summary judgment to dismiss a negligence action arising from a collision in a bar parking lot.

The plaintiff was struck by the defendant's vehicle, which had been left idling by the defendant's cousin and was allegedly stolen by an unknown thief.

The court found no genuine issue requiring a trial regarding the driver's identity, concluding the driver was a thief.

Consequently, the court held the owner was not liable under s. 192(2) of the Highway Traffic Act as the vehicle was taken without consent, nor at common law as no duty of care was owed.

The motion for summary judgment was granted and the action dismissed.

The plaintiff slipped and fell in a grocery store parking lot on January 6, 2015.

She commenced an action against the store on January 5, 2017, and a separate action against the snow removal contractor on October 13, 2017.

The contractor brought a motion for summary judgment, arguing the claim was statute-barred.

The court granted the motion, finding the plaintiff failed to rebut the statutory presumption that she discovered her claim on the date of the fall, and alternatively, that a reasonable person would have discovered the claim within six months.

The action was dismissed.

The plaintiffs brought a motion seeking leave to issue a certificate of pending litigation against a property they claimed to beneficially own, despite the defendants being the registered owners.

The court found a triable issue regarding the plaintiffs' interest in the property due to conflicting evidence about the nature of their payments and agreements.

However, applying the Dhunna factors, the court concluded the equities favoured the defendants because the property was not unique and damages would be an adequate remedy.

The motion for a certificate of pending litigation was dismissed, but the court imposed conditions preventing the defendants from dissipating the property's equity pending trial.

Following a motor vehicle collision, a jury awarded the plaintiff $10,000 in general damages and $14,000 for past loss of income.

The defendant brought a threshold motion arguing the plaintiff's soft tissue injuries did not meet the verbal threshold under section 267.5(5) of the Insurance Act.

The court reviewed the medical evidence, including surveillance showing the plaintiff conducting fitness sessions, and concluded the plaintiff failed to prove she sustained a permanent impairment of a physical, mental, or psychological function.

The claim for general damages was dismissed.

Following a trial where the plaintiffs recovered $9,000 for wrongful distress, the court determined costs.

The plaintiffs were ordered to pay $9,000 in costs to two individual defendants against whom the action was discontinued at the opening of trial.

Because the plaintiffs recovered an amount within the monetary jurisdiction of the Small Claims Court and failed to tender evidence supporting their $80,000 claim, their costs against the remaining defendants were limited to the Small Claims Court scale, fixed at $6,098.64.

The defendant landlord was also ordered to pay the defendant bailiff's costs of $20,085.75 on a partial indemnity scale for unsuccessfully defending a crossclaim for indemnification.

The plaintiff corporation purchased equipment from a tenant operating a kitchen manufacturing business.

The landlord subsequently distrained the equipment for unpaid rent owed by a subsequent tenant and sold the goods through a bailiff.

The plaintiff sued the landlord and the bailiff for trespass to goods.

The court found that the plaintiff owned the goods at the time of sale and that the landlord's distress was unlawful.

The court awarded damages of $9,000, representing the liquidation value of the goods, holding the landlord and bailiff jointly liable, but ordered the landlord to fully indemnify the bailiff.

The accused Jankovic and Formusa applied for directed verdicts of acquittal following a trial on charges of importing cocaine and conspiracy to import cocaine.

The Crown's case was circumstantial, involving a shipment of tire changing machines from Panama containing approximately 50 kg of cocaine.

Formusa was observed at the warehouse receiving the shipment and was arrested while unloading it.

Jankovic arrived in Canada shortly before the delivery and had communications with Formusa and Avanes.

The court allowed Jankovic's application for directed verdict, finding insufficient evidence to establish his participation in the conspiracy or knowledge of the controlled substance.

The court dismissed Formusa's application, finding sufficient circumstantial evidence to support a conviction on all counts.

The Crown sought a ruling on the admissibility of Canadian Border Services Agency (CBSA) travel history documents relating to the accused Drago Jankovic, which showed his arrival at Pearson International Airport on August 23, 2013, from Amsterdam.

The Crown relied on the common law business records exception to the hearsay rule, as it did not comply with the Canada Evidence Act.

The accused challenged admissibility on Charter grounds, probative value, and personal knowledge grounds.

The court admitted the documents as business records, finding they were created in the ordinary course of business, were necessary and reliable, and that the testifying CBSA officers had sufficient knowledge of the systems and procedures involved.

The defendant financier moved for summary judgment dismissing a claim for unpaid commissions relating to rooftop solar projects.

The plaintiff alleged contractual entitlement, unjust enrichment, partnership liability, and that the financing corporation was the alter ego of the installer company that had agreed to pay commissions.

The court held there was no agreement between the plaintiff and the moving party, insufficient evidence to pierce the corporate veil, no partnership within the meaning of the Partnerships Act, and no enrichment supporting quantum meruit.

Finding no genuine issue requiring a trial under Rule 20 of the Rules of Civil Procedure, the court dismissed the claim against the moving defendant and awarded costs.

A ruling on the admissibility of data extracted from Blackberry devices seized from the accused during a drug importation investigation.

The Crown sought to introduce a DVD containing photographs, contact lists, call logs, SMS text messages, and Blackberry PIN messages extracted from two Blackberries in the possession of one accused.

The defence challenged admissibility on grounds that the Crown failed to authenticate the contents, failed to comply with the electronic documents provisions of the Canada Evidence Act, and that prejudicial value outweighed probative value.

The court found that the electronic documents provisions applied, that authentication was established through circumstantial evidence and chain of continuity, and that the presumption of integrity under the Act was satisfied.

The evidence was admitted as real evidence, documents in possession, circumstantial evidence of conspiracy, and admissions.

Following dismissal of a personal injury action arising from injuries sustained while attempting to exit a stuck elevator, the successful defendant sought substantial costs after trial.

The court considered Rule 57 of the Rules of Civil Procedure, settlement offers under Rule 49, the proportionality principle, and the objectives of the Simplified Procedure.

Although the defendant had made settlement offers more favourable than the trial result, the court held that the claimed costs were disproportionate to the modest amount realistically in dispute and the simplified nature of the proceeding.

Taking into account the plaintiff’s limited financial means, the moderate complexity of the case, and the principle that costs must be fair and reasonable for the losing party to pay, the court significantly reduced the requested costs.

Costs were fixed at a reduced amount plus disbursements.

The plaintiff sought damages for injuries sustained while attempting to exit a malfunctioning elevator in her condominium building after severe rainfall caused power failures and flooding of elevator pits.

The claim against the condominium corporation had been settled, leaving the elevator maintenance contractor as the remaining defendant.

The plaintiff alleged negligence and occupier’s liability, relying in part on the doctrine of res ipsa loquitur.

The court found that the elevator malfunctions were caused by extraordinary flooding and that the maintenance contractor had responded reasonably and in compliance with applicable standards.

The plaintiff failed to establish any breach of the standard of care or causal link between the contractor’s conduct and her injuries.