Jacqueline L. King

Antonio Duscio sought a review of a single judge's decision dismissing his motion for release pending the hearing of his appeal from a 16-month sentence for contempt.

The contempt findings related to concealment of assets to avoid execution on a fraud judgment.

The Court of Appeal found no basis to intervene, deferring to the motion judge's discretionary weighing of factors, and dismissed the motion for release.

The court declined to decide whether criminal or civil process governs such release motions.

The plaintiff sought a two-year custodial sentence for the defendant, who was previously found liable for multiple acts of civil contempt, including transferring assets to put them beyond the court's jurisdiction and failing to disclose assets.

The defendant, who was already serving a 12-month sentence for prior contempt, requested a conditional sentence.

The court found the defendant's conduct to be a flagrant and repeated defiance of court orders, warranting a strong signal of deterrence and denunciation.

The defendant was sentenced to 16 months in jail without the possibility of parole, with conditions allowing for early release if the contempt is purged.

The respondent pension fund was defrauded of millions of dollars, with $3 million diverted into a company solely owned by the appellant.

The trial judge found the appellant liable for knowing assistance in a breach of trust based on wilful blindness, ordering her to pay $3 million.

On appeal, the Court of Appeal held that the trial judge erred by applying an objective constructive knowledge standard rather than the required subjective standard for wilful blindness.

The Court also found a palpable and overriding error in the trial judge's factual finding that the appellant continued to sign cheques without due inquiry, as there was no evidence linking her to cheques involving the diverted funds.

The appeal was allowed and a new trial was ordered on the issue of knowing receipt.

This appeal concerned a massive fraud perpetrated against a Paraguayan pension fund (Cajubi) by the appellants.

The trial judge found the appellants liable for fraudulent misrepresentation and breach of fiduciary duty, awarding over $20 million in damages and punitive damages.

On appeal, the appellants raised numerous grounds, including the corporate identification doctrine, limitation periods, unpleaded conspiracy, lack of reliance, and apprehension of bias.

The Court of Appeal dismissed all grounds, affirming the trial judge's findings, particularly regarding the inapplicability of corporate attribution where it would undermine the integrity of the legal system and allow fraudsters to benefit.

A Paraguayan pension fund sued over a multi-year fraudulent investment scheme involving shell corporations, forged and misleading investment materials, secret kickbacks to insiders, and concealment of the true nature of several Canadian investments.

The court found that the moving parties’ funds were diverted through Genesis, First Canadian, Union, and Columbus Note structures by deliberate fraudulent misrepresentations, breaches of fiduciary duty, knowing assistance, and knowing receipt.

The court imposed liability for over $20.8 million in damages against the principal fraud actors, declared broad constructive trust and tracing remedies, and awarded punitive damages against the principal individual wrongdoers.

Additional liability was imposed against parties involved in the Columbus Notes transactions, and full indemnity costs were awarded to the plaintiff, with substantial indemnity costs on Union Securities’ cross-claim.

The Garcia Defendants brought a motion for security for costs against the plaintiff, a Paraguayan pension fund, under Rule 56.01(1)(a).

The plaintiff, ordinarily resident outside Ontario, argued it had sufficient assets in Ontario, that the defendants delayed the motion, that the defendants' conduct increased costs, and that it had a meritorious case.

The court found the plaintiff's alleged Ontario assets were not unrestricted, and the defendants' explanation for delay was unreasonable.

Considering the plaintiff's substantial assets in Paraguay, the enforceability of a judgment there, the contractual relationship between parties, the defendants' counterclaim, and the defendants' vexatious conduct and unreasonable delay, the court dismissed the motion for security for costs.

The plaintiff brought a motion under Rule 49.09 seeking an order declaring that a previous motion was settled according to a draft order.

The court found that no binding settlement agreement had been reached.

Although the parties had exchanged drafts, they had also agreed that the document needed to be "cleaned up" for final review and client sign-off.

A material change was inadvertently made by the plaintiff's counsel in the "cleaned up" draft, which the defendants' client subsequently rejected.

The court emphasized that a binding agreement requires mutual intention on all essential terms and that, in this case, the final form of the draft order had not been settled, and client consent was consistently required.

The plaintiff's motion was dismissed.

The applicant sought leave under s. 42(4)6 of the Substitute Decisions Act to require an attorney for property to pass her accounts in relation to the finances of an incapable person.

The court applied the test requiring a genuine interest in the incapable person’s welfare and a reasonable basis to believe a court might order the passing of accounts.

The court found serious concerns about the applicant’s relationship to the incapable person and concluded the evidence suggested the application was influenced by the incapable person’s spouse rather than the applicant’s independent concern.

The court also found no evidence of mismanagement, noting the incapable person’s needs were being adequately met and financial decisions were prudent.

Leave to bring the application was refused and substantial indemnity costs were awarded to the respondent.

The plaintiffs, employees of eHealth Ontario, brought a motion to certify a class action against eHealth for breach of contract and against Ontario for inducing breach of contract, relating to the non-payment of performance awards and merit increases.

The plaintiffs also moved to amend their statement of claim to add a claim for the 2011/2012 performance awards.

The court granted the motion to amend and certified the action as a class proceeding against eHealth, finding that the breach of contract claims were not plainly and obviously doomed to fail.

However, the court refused to certify the claim against Ontario for inducing breach of contract, finding it legally untenable.