Michael Cohen

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 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 plaintiff, an employee, brought a motion for summary judgment in a wrongful termination case.

The defendant, whose counsel failed to file materials due to inadvertence, sought an adjournment.

The court granted the adjournment with terms, converting the summary judgment motion into a summary trial.

The decision emphasized the need for a just determination on the merits, distinguishing the case from those involving deliberate delay, and noted the specific test for probationary employee dismissals.

Costs were awarded to the plaintiff.

The plaintiff's action regarding a cancelled wind power project was dismissed after a 10-year litigation.

The successful defendant sought costs on a substantial indemnity basis, relying on an offer to settle for $78,000 which the plaintiff had rejected.

The court applied Rule 49 and awarded substantial indemnity costs, but exercised its discretion to reduce the requested fees by nearly half due to the plaintiff's misfortune in dealing with the government's policy reversals.

The plaintiff was ordered to pay $300,000 in fees and $457,486.89 in disbursements.

The defendants brought a motion for leave to appeal an order dismissing their motion for security for costs.

The plaintiff requested an extension of time to submit responding materials.

The Divisional Court dismissed the plaintiff's request for an extension and dismissed the defendants' motion for leave to appeal.

The court noted that the original motion for security for costs was dismissed because no statement of defence had been filed, leaving the defendants free to renew their motion once a statement of defence is served and filed.

The plaintiff sued the provincial government after a moratorium on offshore wind projects was announced on the exact day the plaintiff's project financing was set to close.

The plaintiff alleged the government intentionally timed the announcement to deprive it of litigation resources, and further claimed spoliation of evidence due to the government's deletion of senior staff emails.

The court granted summary judgment dismissing the action, finding no evidence the government knew of the financing timing and concluding the email destruction, while improper, was a routine practice not aimed at this specific litigation.

The plaintiff brought a motion for a Certificate of Pending Litigation (CPL) against two properties, claiming a beneficial interest through a resulting trust.

The properties had been registered in the names of her family members.

The court found that the claim regarding one property was statute-barred by the 10-year limitation period under the Real Property Limitations Act.

For the other property, although there was a triable issue, the court declined to grant the equitable remedy of a CPL because the plaintiff admitted she originally registered the properties in her family members' names to shield them from her husband's equalization claims, thereby violating the clean hands doctrine.

This endorsement addresses the costs of a motion where the Defendant was granted leave to amend its Statement of Defence late in the proceedings.

The Defendant sought costs for this motion, which the Plaintiff opposed, arguing that costs should instead be awarded to the Plaintiff to compensate for the prejudice caused by the late amendment.

The court, exercising its discretion under section 131 of the Courts of Justice Act, decided not to award costs for or against either party for the leave motion, finding the Plaintiff's opposition to be reasonable.

The defendant brought a motion for leave under Rule 48.04 to seek leave to amend its statement of defence under Rule 26.02(c), as the action had already been set down for trial.

The plaintiff opposed the motion, arguing that the delay in seeking the amendments was inordinate and presumed prejudice.

The court held that the mandatory language of Rule 26.01 governed, requiring amendments to be allowed unless there is non-compensable prejudice.

Finding no prejudice that could not be compensated in costs, the court granted the defendant leave to bring the motion and leave to amend the pleading.

The plaintiff, Enterprise Rent-A-Car Canada Company, sought summary judgment against the defendant, George Bryan, for damages to a rented vehicle.

The vehicle was stolen and subsequently involved in an accident.

The defendant argued that a damage waiver in the rental agreement applied and that the plaintiff's claimed damages were excessive and some credit card payments unauthorized.

The court found that the defendant failed to fulfill contractual obligations, specifically by not returning the original ignition key and not ensuring the vehicle ignition was off at the time of theft, thereby invalidating the damage waiver.

The court also determined that the damages claimed were not excessive and the credit card charges were authorized.

Summary judgment was granted in favour of the plaintiff.

The plaintiffs and defendants brought a joint motion for approval of a proposed settlement in a class action regarding alleged misrepresentations about access to a golf course and clubhouse in a residential subdivision.

Following discoveries, it was determined that the defendants were impecunious.

The settlement provided for a $150,000 payment and free lifetime clubhouse memberships for class members.

The court approved the settlement as fair and reasonable given the defendants' lack of assets, and approved class counsel's significantly discounted fees of $48,645.

The applicant alleged discrimination based on marital status and association with a person of a certain race/place of origin in relation to obtaining mortgage financing for a new home purchase.

The Tribunal held a summary hearing to determine if the application had a reasonable prospect of success.

The Tribunal dismissed the claims against the home builder, the warranty corporation, and the mortgage broker, as well as the claim regarding association with a lawyer of East Indian origin.

However, the Tribunal allowed the marital status discrimination claim against the mortgage lender to proceed, finding it had a reasonable prospect of success.

The applicant filed a human rights application alleging discrimination and reprisal in employment.

The Tribunal issued a Notice of Intent to Defer the application because the applicant had also commenced a Small Claims Court action based on the same facts.

Despite the applicant's opposition, the Tribunal found significant overlap in the factual events underlying both proceedings and concluded that proceeding with the application could lead to inconsistent decisions.

The Tribunal deferred the application pending the conclusion of the Small Claims Court action.

The homeowner appealed Tarion's decision to disallow several warranty claims regarding her new home, including complaints about a fireplace, a kitchen ceiling leak, foundation brush coating, subfloor materials, and hardwood floor cupping.

The Licence Appeal Tribunal dismissed all claims.

While the Tribunal found a breach of warranty regarding the foundation brush coating, the homeowner failed to quantify damages.

Regarding the hardwood floor cupping, the Tribunal found that although the builder was likely responsible for the initial cupping due to improper acclimatisation, the homeowner's failure to mitigate damages by controlling the home's humidity extinguished the claim.

The builder's motion for costs was also denied.

Following a successful motion dismissing the action, the defendant sought partial indemnity costs of $25,292.42.

The plaintiffs argued that no costs should be awarded or, alternatively, that costs should be limited to $5,000, asserting that many steps taken by the defendant were unnecessary and that the governing jurisdictional authority evolved after the action commenced.

The court applied s. 131(1) of the Courts of Justice Act and Rule 57.01(1) of the Rules of Civil Procedure, emphasizing that costs must be fair and reasonable.

Considering the complexity of the motion, the conduct of counsel during cross-examinations, and the fact that the motion resolved the entire action, the court reduced the requested amount.

Costs were fixed at $15,000 payable to the successful defendant.

The applicants appealed a decision of the Tarion Warranty Corporation denying in part their claim regarding a new home purchased from the added party.

Following a discussion of the remaining issue, the parties reached an agreement to resolve the matter.

The Licence Appeal Tribunal directed the appeal to be withdrawn.