Joshua J. Siegel

The Bank of Montreal, a creditor, sought to set aside a fraudulent conveyance of real property by Roufat Iskenderov to Elena Lazareva.

The motion judge applied a ten-year limitation period under the Real Property Limitations Act.

The appellants appealed, arguing the two-year limitation period under the Limitations Act, 2002 applied.

The Court of Appeal for Ontario allowed the appeal, holding that the two-year limitation period from the date of discovery under the Limitations Act, 2002 applies to fraudulent conveyance actions, not the ten-year period under the Real Property Limitations Act.

The court found its previous decision in Anisman (ONCA) was wrongly decided due to a lack of historical context.

The discoverability issue was ordered to be tried together with the fraudulent conveyance claim.

The defendants moved to prohibit the plaintiff, Bank of Montreal (BMO), from relying on documents released by their former lawyer, Susan Ambrose, claiming solicitor-client privilege.

BMO opposed, arguing privilege was waived or lost due to an illegal purpose (fraudulent transfer of property).

The court found that while Roufat Iskenderov initially held privilege, Elena Lazareva did not.

Privilege for two documents was waived by the defendants' own disclosure in affidavits of documents.

Furthermore, the privilege for all Ambrose documents was lost due to a prima facie case that Roufat may have used the separation agreement drafted by Ms. Ambrose as cover for a fraudulent transaction to defeat BMO's claims.

The motion to prohibit reliance on the documents was largely dismissed, allowing BMO to use the documents for the purpose of arguing fraudulent conveyance.

This endorsement fixes the quantum of costs following a prior decision where WCL Capital Group Inc.'s cross-motion was dismissed and Google LLC's motion to permanently stay WCL's action was granted.

WCL was ordered to pay costs to Google and Amex Bank of Canada on a partial indemnity basis.

The court assessed the cost outlines, considering factors under Rule 57.01(1), including complexity, importance, and proportionality.

It found Google's claimed hourly rates and total hours excessive, noting duplication with Amex's submissions and disproportionality to the amount in issue.

The court fixed Amex's all-inclusive costs at $18,000 and Google's all-inclusive costs at $30,000.