Court File and Parties
Court File No.: CV-17-575861 Motion Heard: 2019-07-24 Reasons Released: 2019-08-16 Superior Court of Justice – Ontario
Between: Michael Krylov and Krylov and Company Barristers, Plaintiffs
- and - Michael Katz and Utility Savings Corporation, Defendants
Before: Master M.P. McGraw
Counsel: M. Katzman, for the Plaintiffs A. Dryer, for the Defendants
Reasons For Endorsement
I. Background
1The Plaintiffs bring a motion for leave to amend their Statement of Claim issued May 17, 2017 (the "Original Claim") to: advance new claims pursuant to the Fraudulent Conveyances Act (Ontario)(the "FCA") and the Assignments and Preferences Act (Ontario)(the "APA"); seek a declaration that the amounts sought by the Plaintiffs survive any bankruptcy of the Defendants pursuant to section 178 of the Bankruptcy and Insolvency Act (Canada)(the "BIA"); and to add claims for unjust enrichment and constructive and resulting trusts (the "New Claims"). The New Claims arise from alleged statements made by the Defendant Michael Katz during a telephone conversation with the Plaintiff Michael Krylov 20 months after this action was commenced.
2The Plaintiffs also bring a motion seeking to compel the Defendants to attend examinations for discovery, which have not commenced. The parties agreed that this pleadings motion should proceed first in order to finalize pleadings in advance of discoveries. Accordingly, the discovery motion did not proceed and is adjourned sine die.
II. The Parties and the Action
3This action arises from the sublease of commercial office space by the Plaintiffs to the Defendants. The Plaintiffs, who subleased space from the head tenant at 25 Sheppard Avenue West, Toronto (the "Premises"), subleased the Premises to the Defendants pursuant to a sublease agreement dated May 9, 2016 for a term of 38 months commencing June 1, 2016 (the "Sublease"). Mr. Katz denies that he entered into the Sublease in his personal capacity.
4The Plaintiffs allege that on May 9, 2017, the Defendants advised them that they were unable to pay their rent and vacated the Premises with 25 months remaining on the Sublease. The Plaintiffs claim damages of $501,000.
5In his affidavit sworn June 11, 2019 (the "Affidavit"), Mr. Krylov states that he received a telephone call from Mr. Katz on January 18, 2019 during which Mr. Katz advised that he:
i.) intended to make an assignment in bankruptcy as soon as Judgment was entered in this action;
ii.) had an outstanding debt of $1,000,000 to his grandfather's estate, which is controlled by his father, and that his father would not "let it go" until "every lawsuit was cleared";
iii.) could have avoided previous payments due and owing to the Plaintiffs by transferring funds "back as loan repayments".
6The Defendants did not file a Responding Motion Record and did not cross-examine Mr. Krylov on the Affidavit.
7This motion first came before me on June 26, 2019. As set out in my Endorsement dated June 26, 2019, I adjourned these motions given that the Plaintiffs did not file a Factum and the Plaintiffs' Reply materials were delivered to me late. I was also of the view that the parties had not exhausted their efforts to resolve and/or narrow the disputed issues.
III. The Law and Analysis
8Rule 26.01 states:
"On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment."
9Amendments should be presumptively approved unless they would result in prejudice that cannot be compensated by costs or an adjournment; they are shown to be scandalous, frivolous, vexatious or an abuse of the court's process; or they disclose no reasonable cause of action (Andersen Consulting v. Canada (Attorney General), 2001 CarswellOnt 3139 (C.A.) at para. 37; Schembri v. Way, 2012 ONCA 620 at paras. 25 and 44).
10Master MacLeod summarized the test for leave to amend pleadings under Rule 26.01 at paragraphs 19-22 of Plante v. Industrial Alliance Life Insurance Co., 2003 CarswellOnt 296:
"(a) The amendments must not result in irremediable prejudice. The onus of proving prejudice is on the party alleging it unless a limitation period has expired. In the latter case, the onus shifts and the party seeking the amendment must lead evidence to explain the delay and to displace the presumption of prejudice: [citations omitted]
(b) The amended pleading must be legally tenable. It is not necessary to tender evidence to support the claims nor is it necessary for the court to consider whether the amending party is able to prove its amended claim. The court must assume that the facts pleaded in the proposed amendment (unless patently ridiculous or incapable of proof) are true, and the only question is whether they disclose a cause of action. Amendments are to be granted unless the claim is clearly impossible of success. For this purpose amendments are to be read generously with allowance for deficiencies in drafting: [citations omitted].
(c) The proposed amendments must otherwise comply with the rules of pleading. For example, the proposed amendments must contain a "concise statement of material facts" relied on "but not the evidence by which those facts are to be proved" (rule 25.06(1)), the proposed amendments are not "scandalous, frivolous or vexatious" (rule 25.11(b)), the proposed amendments are not "an abuse of the process of the court" (rule 25.11(c)), the proposed amendments contain sufficient particulars -- for example, of fraud and misrepresentation (rule 25.06(8))."
11In Marks v. Ottawa (City), 2011 ONCA 248, relied on by the Defendants, the Court of Appeal set out the applicable factors when considering whether to permit an amendment at paragraph 19:
- An amendment should be allowed unless it would cause an injustice not compensable in costs.
- The proposed amendment must be shown to be an issue worthy of trial and prima facie meritorious.
- No amendment should be allowed which, if originally pleaded, would have been struck.
- The proposed amendment must contain sufficient particulars.
12In Spar Roofing & Metal Supplies Ltd. v. Glynn, 2016 ONCA 296, relied on by both parties, the Court of Appeal held at paragraph 43:
"The respondent's submission is in effect a submission that the court should consider the merits of the factual and legal basis for the proposed amendment at the pleading stage and not at a later stage of the proceedings. That is not the law under r. 26.01. As stated in Todd Archibald, Gordon Killeen & James C. Morton, Ontario Superior Court Practice, 2016 Edition (Markham, ON: LexisNexis Canada, 2015), at p. 1151:
- The amended pleading must be legally tenable. It is not necessary to tender evidence to support the claims nor is it necessary for the court to consider whether the amending party is able to prove its amended claim. The court must assume that the facts pleaded in the proposed amendment (unless patently ridiculous or incapable of proof) are true, and the only question is whether they disclose a cause of action. Amendments are to be granted unless the claim is clearly impossible of success.
Put another way, an amendment is to be granted unless it would have been struck out under r. 21.01(1)(b) if it had been pleaded originally: 1317424 Ontario Inc., at para. 7. A motion to strike out a pleading on the ground it discloses no reasonable cause of action or defence must not, however, be conflated with a motion for summary judgment under r. 20.04: see Andersen Consulting v. Canada (Attorney General) (2001), 150 O.A.C. 177 (C.A.), at paras. 34-37; Griffiths v. Canaccord Capital Corp. (2005), 204 O.A.C. 224 (Div. Ct.), at para. 10."
13Section 2 of the FCA states:
"Every conveyance of real property or personal property and every bond, suit, judgment and execution heretofore or hereafter made with intent to defeat, hinder, delay or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, penalties or forfeitures are void as against such persons and their assigns."
14Sections 4(1)-(2) of the APA state:
"(1) Subject to section 5, every gift, conveyance, assignment or transfer, delivery over or payment of goods, chattels or effects, or of bills, bonds, notes or securities, or of shares, dividends, premiums or bonus in any bank, company or corporation, or of any other property, real or personal, made by a person when insolvent or unable to pay the person's debts in full or when the person knows that he, she or it is on the eve of insolvency, with intent to defeat, hinder, delay or prejudice creditors, or any one or more of them, is void as against the creditor or creditors injured, delayed or prejudiced.
(2) Subject to section 5, every such gift, conveyance, assignment or transfer, delivery over or payment made by a person being at the time in insolvent circumstances, or unable to pay his, her or its debts in full, or knowing himself, herself or itself to be on the eve of insolvency, to or for a creditor with the intent to give such creditor an unjust preference over other creditors or over any one or more of them is void as against the creditor or creditors injured, delayed, prejudiced or postponed."
15The Defendants rely heavily on EnerWorks Inc. v. Glenbarra Energy Solutions Inc., 2012 ONSC 414, a motion to strike under Rule 21 in which Perell J. held at paragraphs 37-40 and 52-57:
"36.... It is a fundamental principal of procedural justice that a litigant should have notice of the case against him or her. The Rules of Civil Procedure employ a system of fact pleading to give notice. The primary function of a system of fact pleading is to compel the parties to disclose the facts that they are relying on to support their claim or defence. The heart of the system of fact pleadings is that the parties plead the material facts that constitute their claim or defence.
37 The most important rule about pleadings is rule 25.06 (1) that "[e]very pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence by which those facts are to be proved." This rule directs the disclosure of the material facts, which include facts that establish the constituent elements of the claim or defence: Philco Products, Ltd. v. Thermionics, Ltd., [1940] S.C.R. 501 at p. 505.
38 The causes of action must be clearly identifiable from the facts pleaded and must be supported by facts that are material: Cerqueira v. Ontario 2010 ONSC 3954 at para. 11. See J.W. Morden and P.M. Perell, The Law of Civil Procedure in Ontario (1st ed.) (Markham: NexisLexis Canada Inc., 2010) at pp. 339-45.
39 Rule 25.06 (8) requires that full particulars be provided where fraud or misrepresentation is alleged. Rule 25.06 (8) states:
- Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars, but knowledge may be alleged as a fact without pleading the circumstances from which it is to be inferred.
40 The full particulars required by rule 25.06 (8) must set out precisely each allegation of wrongful conduct and the who, where, when, what, and how of that alleged misconduct: Balanyk v. University of Toronto, [1999] O.J. No. 2162 (S.C.J.) at para. 28. In the Balanyk case, Justice Cameron stated at para. 29:
- The plaintiff must plead all the material facts on which it relies and all of the facts which it must prove to establish a cause of action which is legally complete. If any fact material to the establishment of a cause of action is omitted, the statement of claim is bad and the remedy is a motion to strike the pleadings, not a motion for particulars. If the plaintiff does not, at the time of pleading, have knowledge of the facts necessary to support the cause of action, then it is inappropriate to make the allegations in the statement of claim. It is improper to allow conclusions to be pleaded baldly and without any supporting facts: see Region Plaza Inc. v Hamilton - Wentworth (Regional Municipality) (1990), 12 O.R. (3d) 750 (Ont. H.C.).
51 The elements of a fraudulent conveyance claim are: (1) the plaintiff is a creditor; i.e., a person to whom a debt is due; (2) the debtor is an insolvent person or unable to pay his or her debts in full; and (3) the debtor conveys his or her property to another person with intent to defeat, hinder, delay or prejudice creditors, or any one or more of them. See: Fraudulent Conveyances Act; Assignments and Preferences Act; Stone v. Stone (2001), 55 O.R. (3d) 491 (C.A.), aff'g. (1999), 46 O.R. (3d) 31 (S.C.J.); Optical Recording Laboratories v. Digital Recording Corp. Inc. (1990), 1 O.R. (3d) 131 (C.A.); J.G. Young & Sons Ltd. v. TEC Park Ltd., [1999] O.J. No. 4066 (S.C.J.) at para. 21; Hostmann-Steinberg Ltd. v. 2048669 Ontario Inc., 2010 ONSC 2441 at paras. 10-11, 14.
52 The typical fraudulent conveyance action involves a particular property that the debtor conveys to a defendant, often a spouse or family member, to save that property from creditors. EnerWorks' pleading of fraudulent conveyance is untypical or an aberration in two respects. First, the pleading is inconsistent with EnerWorks' piercing the corporate veil pleading that all the corporations were the alter-egos of Messrs. Cooper, Aoun, and Judd, which pleading, if successful, would make it impossible to have put the assets out of reach of creditors. Second, the pleading of fraudulent conveyance is an omnibus allegation and it does not specify what and when and to whom particular GESI properties were conveyed. It does not identify particular properties.
53 With respect to the first inconsistency, in my opinion, that the fraudulent conveyance pleading is inconsistent with the piercing of the corporate veil pleading does not provide grounds to strike either pleading.
54 However, the second aberration of not identifying the subject matter and the details of the fraudulent conveyances is more problematic because, for instance, the timing of a conveyance makes a great deal of difference in determining whether it is a fraudulent conveyance. For instance, a defendant might admit the conveyance of the property but deny that the judgment debtor was insolvent at the time or attempting to defraud any creditors.
55 A main purpose of a judgment debtor examination is precisely to determine what property the judgment debtor has and what property the judgment debtor had at relevant times. EnerWorks learned on the examination of Mr. Cooper that GESI had concealed or disposed of property to defeat or defraud EnerWorks. If that is true, then in its fraudulent conveyance claim, EnerWorks should have pleaded what it discovered or it should have continued the judgment debtor examination and compiled a list of the missing properties and allegedly fraudulent conveyances.
56 It strikes me as both necessary and fair that the identification of the property allegedly fraudulently conveyed not wait for the examinations for discovery in this action when that can be determined by completing the judgment debtor examinations.
57 Therefore, in my opinion, the fraudulent conveyance claim should be struck out with leave to amend to plead the particular properties that were fraudulently conveyed."
16The Defendants also rely on Nikon Optical Canada Inc. v. Theordorus Heereans, 2017 ONSC 4167 in which Master Pope denied leave to amend to add a fraudulent conveyance claim because the plaintiffs did not plead sufficient particularity of material facts. In that case, the plaintiffs had obtained two default judgments against corporate defendants, conducted examinations in aid of execution and received production of bank records. Master Pope denied the proposed amendments but granted leave to amend.
17In Gensteel Doors Ontario Inc. v. All Can Doors & Hardware Inc., 2016 ONSC 2026, relied on by the Plaintiffs, Master Muir declined to strike a Statement of Claim in a collection action concluding that, although the allegations were general and contained a minimal amount of material fact disclosure, read generously, the pleading was sufficient. Master Muir held that although particulars of the invoices or products delivered in support of the plaintiff's claim were not itemized, the basic elements of the claim had been pleaded and accounting details were solely within the knowledge of the defendant (Gensteel at paras. 8-11). Master Muir also concluded that the defendants had not provided any evidence to suggest that the particulars were not within their knowledge or that they were unable to plead their defence to the Statement of Claim (Gensteel at para. 11).
18The proposed amendments (the "Proposed Amendments") are set out at paragraphs 1 and 15-31 of the Plaintiffs' proposed Amended Statement of Claim (the "Amended Claim"). The primary Proposed Amendments in dispute are at paragraphs 15-23 of the Amended Claim:
"15. The Plaintiffs state and the fact is that the Defendants have conducted themselves with the intentions (sic) of delaying, defeating or hindering the Plaintiffs as a creditor of the defendants, contrary to the provisions of sections 2, 4 and 5 of the Fraudulent Conveyances Act and sections 4 and 5 of the Assignments and Preferences Act and that any such transactions, payments or conveyances are reviewable and should be set aside.
In particular, the Plaintiffs state that the Defendants have diverted funds and assets from Utility Savings Corporations (sic) to the individual use of Michael Katz and to other individuals, the identities of whom are not known to the Plaintiffs but are known to the Defendants.
Michael Katz has also diverted funds and assets from himself to other individuals, the identities of whom are not known to the Plaintiffs but are known to the Defendants.
The Defendants thereby have depleted funds and assets owned by them which funds and assets ought to be applied to the amounts owing to the Defendants' creditors, particularly the Plaintiffs.
The Plaintiffs state that the details of the diversion of funds and impugned transactions are solely within the knowledge of the Defendants, and were made without the Plaintiffs' knowledge and with the intention of defeating hindering or delaying creditors, and in particular any Order which may be made by this Honourable Court respecting amounts due and owing to the Plaintiffs.
The transfers were made for no or inadequate consideration.
The transfers occurred beginning in or about June of 2016 and continued thereafter.
The transfers constitute fraudulent conveyances and improper preferences and were made contrary to sections 2, 4 and 5 of the Fraudulent Conveyances Act and sections 4 and 5 of the Assignments and Preferences Act and ought to be set aside, with Judgment granted accordingly.
The Plaintiffs plead and rely upon the Fraudulent Conveyances Act and the Assignments and Preferences Act."
19At paragraphs 30-31 of the Amended Claim under the heading "Discoverability", the Plaintiffs set out some of the particulars of the alleged telephone call from Mr. Katz including that he advised that he would not make any payment towards the outstanding debt, referenced the transfer of funds from the Defendant Utility Savings Corporation ("USC") as "loan repayments" and that he intended to make an assignment in bankruptcy. In the balance of the Proposed Amendments, the Plaintiffs plead unjust enrichment (paragraphs 24-25), breach of trust (paragraph 26), entitlement to a tracing order (paragraph 27) and the exceptions under s. 178 of the BIA (paragraphs 28-29).
20The Defendants submit that the Proposed Amendments lack sufficient particulars and material facts including the elements of the causes of action comprising the New Claims and the particulars required under Rule 25.06(8) with respect to fraud; and that the New Claims do not advance a tenable cause of action and would have been struck on a Rule 21 motion had they been pleaded in the Original Claim. The Defendants do not allege that they would suffer any actual or irremediable prejudice if leave is granted and the Proposed Amendments are permitted.
21Turning to a consideration of the Proposed Amendments with respect to the fraudulent conveyance claim, I reject the Defendants' assertion that the Plaintiffs have not pleaded sufficient particulars. The Plaintiffs have pleaded all of the elements of a fraudulent conveyance claim: (1) the Plaintiffs are creditors (paras. 10-11, 15 and 18); (2) the Defendants are insolvent persons or unable to pay their debts in full (paras. 10-13, together with the allegations at paras. 30-31 that Mr. Katz advised that the Defendants intended to make an assignment in bankruptcy which would mean they are insolvent or unable to pay their debts as they become due); and (3) the debtor conveys his or her property to another person with intent to defeat, hinder, delay or prejudice creditors, or any one or more of them (paras. 15-23).
22Although the Proposed Amendments are general in certain respects, reading the Amended Claim generously, the Plaintiffs have pleaded sufficient material facts with respect to their fraudulent conveyance claim. Specifically, the Plaintiffs plead that "funds and assets" of USC were diverted or depleted for no or inadequate consideration to and by Mr. Katz and others starting on or about June 1, 2016, the commencement of the term of the Sublease. These material facts are what is currently known to the Plaintiffs based on the alleged statements made by Mr. Katz. Further, as with many claims grounded in fraud, the Plaintiffs allege and specifically plead that some of the material facts including the identity of other parties to whom property was allegedly transferred are solely within the knowledge of the Defendants, which is consistent with Gensteel and reasonable and appropriate in the circumstances. I further conclude that based on the Amended Claim, the Defendants have sufficient notice of the New Claims being advanced against them in order to defend the New Claims.
23I reject the Defendants' assertion that EnerWorks stands for the proposition that the Proposed Amendments should be denied because the Plaintiffs have not identified the particular property which was allegedly transferred. In EnerWorks, the plaintiff had obtained judgment and conducted a judgment debtor examination during which the defendant disclosed that he had concealed or disposed of property. Given that the plaintiffs had the ability to identify the property through the judgment debtor examination, Perell J. held that the plaintiff should plead what it discovered on the examination or should have continued the examination to determine the identity of the property rather than wait for examinations for discovery in the fraudulent conveyance action. Perell J. struck the proposed amendments with leave to amend to more specifically identify the property. EnerWorks is distinguishable from the present case. The Plaintiffs allege that they learned of the material facts giving rise to their fraudulent conveyance claim prior to examinations for discovery. The Plaintiffs do not have judgment and therefore do not have the benefit of a judgment debtor examination to make further inquiries into what property may have been transferred and the Defendants have advised that they will refuse any questions with respect to the New Claims on examinations for discovery based on the Original Claim.
24Similar to EnerWorks and unlike the present case, in Nikon, the plaintiffs had obtained default judgments against the corporate defendants, conducted examinations in aid of execution and received production of some bank records from which they may have been able to identify the impugned transactions. Even though the amendments were not permitted, the Plaintiffs were granted leave to amend.
25The Plaintiffs allege that the Defendants diverted and depleted the "funds and assets" of USC. This is their current information based on the statements allegedly made by Mr. Katz. As I concluded above, these are sufficient material facts for the purposes of pleading and the parties should proceed to examinations for discovery. In my view, the Plaintiffs' inability to obtain bank records or other additional information regarding the impugned transfers due to the stage of the litigation should not, where sufficient particulars and material facts have been pleaded, result in a denial of leave. I also disagree with the Defendants that the Plaintiffs have pleaded broad unsubstantiated allegations to embark on a fishing expedition on examinations for discovery as found out in some cases cited by the Defendants (see Jardine Lloyd Thompson Canada Inc. v. Terence Patterson, 2018 ONSC at para. 5).
26I further conclude that the Plaintiffs' fraudulent conveyance claim is not clearly impossible of success and would not have been struck under Rule 21 if pleaded in the Original Claim. Applying a generous reading and based on the record before me, I cannot conclude that the fraudulent conveyance claim is patently ridiculous or incapable of proof. Therefore, assuming that the facts as pleaded are true, I conclude that the Plaintiffs' claims are legally tenable and disclose a reasonable cause of action.
27The Defendants submit that a fraudulent conveyance claim against Mr. Katz personally is incapable of success because Mr. Katz is a party to the litigation and therefore not beyond the reach of the court given that it is possible for the Plaintiffs to obtain judgment against him. This argument ignores the Plaintiffs' allegation that Mr. Katz diverted funds to other parties. Further, as Perell J. held in EnerWorks, allegations with respect to piercing the corporate veil though contradictory to fraudulent conveyance claims are not a basis for striking such claims.
28I am also satisfied that the New Claims under the APA have been sufficiently pleaded. All required elements are pleaded in the Amended Claim: i.) transfers (paras. 15-23); ii.) of property (paras. 16-19); iii.) made by a person when insolvent or unable to pay the person's debts in full or when the person knows that he, she or it is on the eve of insolvency (paras. 10-13, 30-31); iv.) with intent to defeat, hinder, delay or prejudice creditors and/or with the intent to give such creditor an unjust preference over other creditors (paras. 15-23). I further conclude that the material facts as pleaded in the Amended Claim are sufficiently particular and that the New Claims under the APA are not clearly impossible of success and would not have been struck under Rule 21 if originally pleaded.
29However, unlike the Proposed Amendments under the FCA and the APA, I am not satisfied that the Proposed Amendments with respect to the Plaintiffs' claims for unjust enrichment (para. 24) and resulting and/or constructive trusts (para. 26) have been pleaded with sufficient particularity and material facts. While the underlying elements constituting these claims are properly pleaded, these Proposed Amendments are too general in that they do not set out how any material facts (even those already pleaded) apply to the elements of each claim. Accordingly, I deny the Proposed Amendments at paragraphs 24 and 26 but grant leave to amend these paragraphs.
30With respect to paragraphs 30-31, I agree with the Defendants that there is nothing generally improper with a party stating an intention to exercise their rights to make an assignment in bankruptcy under the BIA. However, in the context of the present circumstances, namely the allegations that Mr. Katz advised Mr. Krylov of his intention to file for bankruptcy upon granting of judgment, his other alleged comments about the transfer of funds, the Defendants' inability to pay their rent under the Sublease, the elements of the Amended Claims under the FCA and the APA with respect to inability to pay debts and/or insolvency, the relief sought under section 178 of the BIA and potential Limitations Act (Ontario) issues, I am satisfied that the Proposed Amendments at paragraphs 30-31 are proper and sufficiently pleaded.
31Finally, I am satisfied that the Plaintiffs' requests for a tracing order (para. 27) and the declaration under s. 178 of the BIA that the alleged debts should survive any bankruptcy of the Defendants (paras. 28-29) have been sufficiently and properly pleaded.
32Having considered all of the relevant factors and circumstances and having read the Amended Claim generously, and in the absence of any actual prejudice to the Defendants, I conclude that it is just in the circumstances to grant the Plaintiffs leave to amend the Original Claim in the form of the Amended Claim with the exception of paragraphs 24 and 26 which are denied with leave to amend. The Defendants are granted leave to amend their Defence to plead additional and/or amended defences.
III. Disposition
33Order to go on the terms set out above. Counsel may file a form of order with me for my review and approval.
34If the parties are unable to agree on costs, they may file written costs submissions not to exceed 3 pages (excluding costs outlines) with me through the Masters' Administration Office on or before September 30, 2019. If the parties are unable to agree on a timetable to do so, they may contact me to schedule a telephone case conference.
Released: August 16, 2019
Master M.P. McGraw