Shaun Arif Hashim

The appellants, judgment creditors of the respondent McCallum from a defamation action, sought a stay pending their appeal of a motion judge's decision dismissing their action under Rule 21.

The action sought to set aside a 1993 conveyance of McCallum's interest in the matrimonial home to his wife Boughner as a fraudulent conveyance under section 38 of the Bankruptcy and Insolvency Act.

The motion judge found the appellants lacked standing as "creditors or others" under the Fraudulent Conveyances Act.

The appellants moved for a stay to prevent Boughner from disposing of the property pending appeal.

The motion was dismissed on the basis that there was no serious issue to be tried and no evidence of irreparable harm or balance of convenience favoring the stay.

The defendants brought a motion to dismiss the action, which sought to set aside an alleged fraudulent conveyance, on three grounds: lack of standing, the claim being statute-barred, and lack of legal capacity.

The court granted the motion, dismissing the action.

The primary reason for dismissal was the plaintiffs' lack of standing under the Fraudulent Conveyances Act, as they were not "creditors or others" at the time of the impugned transfer in 1993.

Additionally, the plaintiffs failed to obtain proper court approval under section 38(1) of the Bankruptcy and Insolvency Act to commence proceedings against the non-bankrupt transferee.

The court disagreed that the claim was barred by the Real Property Limitations Act, finding that an action to set aside a fraudulent conveyance is not an action to "recover land."