Philip P. Healey

The plaintiff creditor sought to set aside several property transfers made by the debtor to his spouse and to a corporation owned by the spouse, alleging they were fraudulent conveyances under the Fraudulent Conveyances Act.

The court analyzed transfers occurring in 1987, 1988, 1992, and 1993, applying the statutory test and the common-law “badges of fraud.” It held that earlier transfers of commercial and farm properties in 1987–1988 were not fraudulent because the plaintiff was not yet a creditor and there was insufficient evidence that the debtor reasonably anticipated insolvency at the time.

However, transfers of the debtor’s interest in the matrimonial home in 1992 and a Florida condominium in 1993 occurred when the debtor faced serious financial exposure and litigation, and were made with intent to defeat creditors.

Those later transfers were set aside.

Although the plaintiff delayed extensively in pursuing the action, the defence of laches failed because the defendants did not prove specific prejudice from the delay.

The defendants brought a motion under r. 24.01(1) of the Rules of Civil Procedure to dismiss a libel action for delay.

The action arose from allegedly defamatory statements published during a 1997 municipal election campaign.

Although the action was commenced in 1998, little progress occurred beyond limited discoveries in 1998, and no steps were taken after the Court of Appeal dismissed a related appeal in 2005.

The court held that the plaintiffs were responsible for inordinate and inexcusable delay and that a presumption of prejudice arose, reinforced by the death of witnesses and the unavailability of key participants.

The plaintiffs failed to rebut the presumption of prejudice, and the action was dismissed for delay; the defendant’s counterclaim was also dismissed by consent.