Maurice J. Neirinck

An appeal concerning the interpretation of the Mutual Legal Assistance in Criminal Matters Act.

The respondent was convicted in the United States of conspiracy and fraud, sentenced to 30 years imprisonment, and ordered to pay a $26 million USD forfeiture money judgment.

American authorities discovered $9.2 million CAD in a Canadian bank account believed to belong to the respondent and obtained a restraint order.

The respondent appealed the motion judge's decision upholding the restraint order, arguing the funds were not proceeds of crime or offence-related property.

The Court of Appeal dismissed the appeal, holding that "proceeds of crime" should be interpreted broadly in the context of mutual legal assistance to respect differences in foreign legal systems and to fulfill Canada's international treaty obligations.

The appellant appealed the trial judge's decision dismissing his wrongful dismissal action.

The appellant, who had worked for the respondent company for over 21 years as general manager of its heat treating division, claimed he had taken a leave of absence to wind up his father's estate in India rather than resigning.

The trial judge found that the appellant had resigned on January 22, 2010, based on evidence including the testimony of his supervisor and substantial circumstantial evidence.

The Court of Appeal upheld the trial judge's decision, finding no palpable and overriding error and dismissing the appeal with costs awarded to the respondent.

The Interim Receiver, A. Farber & Partners Inc., moved for approval of its fees and disbursements, and those of other professionals, incurred over a 15-year receivership, along with its discharge and other related orders.

The plaintiff, Nyaz Jethwani, opposed the motion, primarily objecting to the quantum of fees and certain actions of the Interim Receiver.

The court found the Interim Receiver's fees and actions to be fair, reasonable, and commercially prudent, dismissing all of Jethwani's objections.

The court approved the fees, discharged the Interim Receiver, and ordered reimbursement for personal payments made by Farber.

The Interim Receiver requested a case conference to clarify the scope of cross-examinations on its fee affidavits and those of its counsel, and sought to limit the production of invoices.

The Plaintiff, representing investors, challenged the Interim Receiver's fees and alleged negligence by its counsel, seeking broad cross-examination and full disclosure.

The court reiterated that when an Officer of the Court seeks fee approval, they become a litigant with an economic interest and are subject to cross-examination like any other party.

The court declined to provide further directions to limit the scope of cross-examination and ordered the production of all relevant invoices, emphasizing transparency.

The appellant trustee in bankruptcy appealed a trial judge's decision allowing the secured claims of a nominee company controlled by the respondent.

The appellant argued that the claims were barred by a full and final mutual release previously executed by the respondent.

The Court of Appeal allowed the appeal, finding that the trial judge made an extricable error of law by failing to consider the release as a whole.

Properly interpreted, the release captured successor corporations under the respondent's control, including the nominee company, and barred the claims.

The Trustee in bankruptcy appealed the trial judge's refusal to set aside transactions arising from a settlement between an investor and a real estate developer.

The Trustee argued the payments and mortgages were transfers at undervalue, unjust preferences, fraudulent conveyances, oppressive, and an unjust enrichment.

The Court of Appeal dismissed the appeal, finding the settlement was supported by adequate consideration (forbearance from suit), the parties were at arm's length, and there was no intent to defraud creditors.

The investor's cross-appeal regarding a $471,000 payment found to be a fraudulent conveyance was also dismissed.

The appellant, acting as trustee in bankruptcy for two creditors, appealed the trial judge's partial disallowance of claims advanced in the bankruptcy of a development company.

The Court of Appeal allowed the appeal in part, correcting the quantum of an unsecured claim from $420,000 to $457,600 and ordering interest to be calculated from the date of each individual advance rather than the final advance.

The court dismissed the appeal regarding the disallowance of certain third-party payments, finding the trial judge applied the correct standard of proof.

The court also upheld the application of the Courts of Justice Act for interest on an unjust enrichment claim, but varied the end date for interest accrual to the date of receivership.

A cross-appeal by another creditor was dismissed.

The Bank of Montreal moved for summary judgment to dismiss an action brought by The Midas Investment Corporation, which alleged negligence by the Bank in allowing fraudulent account activity.

Midas claimed the Bank was negligent in opening and operating an account used by two individuals, Kavanaugh and Commisso, to defraud Midas of over $3 million, arguing the Bank should have been put on inquiry due to irregularities, thus disentitling it from relying on the indoor management rule.

The court dismissed the motion for summary judgment, finding a genuine issue requiring a trial regarding whether the Bank was put on inquiry by inconsistencies in corporate documentation and account activity, and noting incomplete document production and the absence of expert evidence.

The appellants appealed from a motion judge's dismissal of their motion for summary judgment, which sought to dismiss the respondent's claims as statute-barred.

The motion judge had found that the respondent lacked standing to bring a fraudulent conveyance claim prior to the appointment of a receiver, and that the appellants had concealed facts necessary to support the claims.

The Court of Appeal dismissed the appeal, holding that the motion judge's findings on discoverability and concealment were supported by the evidence and entitled to deference.

The moving defendants sought summary judgment dismissing a fraudulent conveyance and knowing assistance action as statute-barred under the Limitations Act, 2002.

The action arose from efforts to enforce a substantial divorce judgment where assets were allegedly transferred through corporate structures to defeat execution.

The court held that the material facts underlying the claims were not discoverable until an equitable receiver, appointed in aid of execution, obtained corporate records in 2010 that had previously been withheld.

The action commenced in 2012 was therefore within the limitation period.

The court also ruled that the defendant named as estate trustee of a deceased individual was not in fact the estate trustee but appointed her as litigation administrator of the estate under Rule 9.03(2).

The plaintiff municipality brought a motion seeking a declaration that the defendant was in civil contempt of court for failing to comply with an earlier order requiring removal of a berm constructed on his property that allegedly caused flooding in a municipal drainage ditch.

The court reviewed the three-part test for civil contempt requiring a clear order, deliberate and wilful disobedience, and proof beyond a reasonable doubt.

While the evidence indicated that the berm had not been fully removed and flooding continued, the court was not satisfied that the breach was deliberate or wilful.

Instead of a contempt finding, the court ordered the defendant to provide access to the property for surveying to determine the remaining berm and to facilitate compliance with the prior order.

The plaintiffs and defendants both sought leave to appeal a motion judge's decision regarding a summary judgment motion in a professional negligence claim arising from a fraudulent mortgage transfer.

The motion judge had dismissed the plaintiffs' motion for summary judgment and declined the defendants' request to dismiss the action, citing the lack of expert evidence on the standard of care for paralegals performing electronic registrations.

The Divisional Court dismissed both motions for leave to appeal, finding no conflicting decisions or good reason to doubt the correctness of the motion judge's decision, which appropriately concluded that a trial with expert evidence was required in the interests of justice.

The plaintiff municipality brought a motion for an interlocutory mandatory order requiring the defendants to remove a berm constructed on their property adjacent to a municipal road.

The municipality argued the berm caused flooding in the road's drainage ditches, creating safety hazards and potential damage to the pavement structure, and blocked water flow to a provincially significant wetland.

The defendants claimed the flooding was caused by the municipality's own ditch maintenance work.

The court preferred the municipality's expert evidence, finding the berm caused the flooding and was located within the wetland setback in breach of conservation regulations.

The court held that the municipal ditch formed part of the 'highway' under the Municipal Act, 2001, and granted a statutory injunction and an injunction for public nuisance, ordering the defendants to remove the berm.

The appellant, an Ontario corporation, sued its former North Carolina legal counsel in Ontario for professional negligence arising from a North Carolina action.

The motion judge stayed the action for lack of a real and substantial connection to Ontario, but failed to consider the appellant's argument that Ontario should assume jurisdiction as a forum of necessity.

On appeal, the Court of Appeal held that while the motion judge erred in ignoring the argument, the appellant failed to meet the high threshold for the forum of necessity doctrine.

The appellant's inability to retain counsel in North Carolina did not make it an exceptional case justifying the assumption of jurisdiction.

Following the appointment of a receiver over corporate defendants’ books and records in a commercial dispute involving alleged fraud and breach of agreements, the court determined the quantum of costs payable to the successful plaintiff.

The plaintiff sought partial indemnity costs exceeding $298,000, including substantial disbursements for forensic accounting services.

The defendants challenged the reasonableness of the fees and argued certain expert-related disbursements were not recoverable.

The court held that detailed cost outlines rather than docket production were sufficient, emphasized that costs must be fair and reasonable to the unsuccessful party under Rule 57.01(1), and confirmed that expert forensic accounting fees were recoverable.

Costs were fixed at $180,000 plus HST for fees and $67,566.14 for disbursements, payable jointly and severally by the defendants.

The appellants appealed a trial judgment finding them liable either as guarantors or on a promise to purchase promissory notes.

The Court of Appeal dismissed the appeal, agreeing with the trial judge's interpretation of the agreement based on the context and intention of the parties.

The court also refused to interfere with the trial judge's costs order and awarded costs of the appeal to the respondents.

The plaintiff moved for the appointment of a receiver over the books and records of several corporate defendants following loans exceeding USD $111 million for casino and gaming ventures in Jamaica and the Dominican Republic.

The defendants failed to provide required financial reporting, access to records, and audited statements despite contractual obligations and prior court orders.

Evidence indicated possible fraudulent reporting, significant discrepancies in financial information, and unexplained diversion of approximately $50 million to related entities.

The court held that the defendants had repeatedly obstructed access to records and that the circumstances justified the equitable appointment of a receiver to secure and review corporate books and records.

The motion was granted.

The appellants, acting as mortgagees, sold a 130-acre commercial property under power of sale for $12.5 million.

The trial judge found the fair market value was $16 million and awarded the respondent mortgagor $3.5 million in damages for an improvident sale, noting the appellants failed to adequately market the property or allow meaningful due diligence by potential buyers.

On appeal, the appellants argued the trial judge erred in finding bad faith, imposing liability without expert evidence of appraiser negligence, and calculating damages.

The Court of Appeal dismissed the appeal, holding that the trial judge applied the correct legal test regarding the mortgagee's duty to take reasonable precautions to obtain fair market value and made no palpable and overriding errors in her factual findings.

The defendants brought a motion seeking to stay an Ontario action alleging negligence in the provision of legal services relating to litigation in North Carolina.

The plaintiff argued that Ontario had jurisdiction because it was present in Ontario and allegedly sustained damages there.

Applying the real and substantial connection test articulated in Club Resorts Ltd. v. Van Breda, the court found that none of the presumptive connecting factors linked the dispute to Ontario.

The alleged negligence occurred in North Carolina, the defendants were based there, and the relevant contract and witnesses were located in the United States.

The court concluded that Ontario lacked jurisdiction simpliciter and that, in any event, North Carolina was the clearly more appropriate forum.

The plaintiff sought recovery of $57,000 paid to the defendant in connection with a fraudulent investment scheme involving purported shares in a company referred to as STS.

The court found that the plaintiff delivered a cheque payable to the defendant for the sole purpose of applying the funds to purchase STS shares.

Instead, the funds were deposited into a joint account controlled by the defendant and another individual and were largely applied to other purposes before a later cheque was issued that did not secure shares for the plaintiff.

The court held that the circumstances gave rise to a constructive trust and that the defendant, by facilitating the misapplication of the funds, became liable as a trustee de son tort.

The court rejected the defendant’s limitation period defence, finding that the equitable claim for breach of constructive trust was not time-barred under the applicable transitional provisions of the Limitations Act, 2002.