Trung Nguyen

This is a costs ruling following a complex fourteen-day combined family and civil trial.

The trial involved equalization payment disputes between spouses exceeding $10.5 million, unequal division claims, post-valuation date adjustments, fraud and oppression allegations, and a civil action for fraudulent conveyancing.

The husband was ordered to pay the wife an equalization payment of $1,054,267 and the wife was ordered to pay the husband $1,000,000 for oppression and punitive damages.

The court addressed costs claims from the wife and a third-party defendant, finding the civil action unnecessary and awarding limited costs to the wife for a specific pre-trial motion, while awarding substantial costs to the third-party defendant who successfully defended against fraud allegations.

The court considered whether Blaney McMurtry LLP, former counsel for the defendants, was entitled to a declaration or an equitable mortgage over the defendant’s property for unpaid legal fees, based on a prior consent order.

The court found that the consent order did not create an equitable mortgage in favour of Blaney, as the intention was for a bank to be the secured creditor, not Blaney.

The motion was dismissed.

The plaintiff, Datamy Inc., brought a motion for summary judgment against the defendants, Ka-Hang Yung and Vivien Yung, for breach of an Agreement of Purchase and Sale (APS) relating to a residential property.

The defendants failed to pay a second deposit of $140,000 as required by the APS.

The court held that the plaintiff was entitled to summary judgment for the unpaid deposit, rejecting the defendants’ arguments for relief from forfeiture and finding the deposit amount reasonable.

Alternatively, the court calculated damages based on the difference in sale price and related costs, but ultimately awarded the full unpaid deposit.

This is a ruling on a motion to disqualify a witness, Gabrielle St. George, in ongoing matrimonial and civil litigation.

Vito Ierullo sought to call Ms. St. George, the estranged sister of Rae Marie Ierullo (referred to as Ms. Adragone), to provide evidence concerning a loan assignment, the transfer of a family home, and allegations of forgery and fraudulent documents.

Rae Marie Ierullo objected, arguing the proposed evidence was largely hearsay, lacked direct knowledge, and was motivated by ill-will.

The court found the evidence to be speculative, based on animus, and largely hearsay, concluding that its admission would unnecessarily expand the scope of the trial into collateral family and estate issues.

The motion to permit Ms. St. George to testify was dismissed.

This mid-trial ruling addresses the qualification of an expert witness, D.J. Myles Martin, proposed by the applicant (Rae Marie Ierullo) in a combined family and civil trial concerning business valuations.

The respondent (Vito Ierullo) challenged the expert's qualifications.

The court applied the Mohan and White Burgess tests for expert admissibility, considering factors such as formal education, professional qualifications, experience, and independence.

The court declined to qualify the expert, citing his lack of formal CBV accreditation, limited litigation support experience, and an undisclosed social relationship with the applicant, which raised concerns about his objectivity and non-partisanship.

In a complex, combined family and civil proceeding, the husband brought motions to further amend his pleadings and compel third-party financial disclosure shortly before a rescheduled trial.

The court dismissed the majority of the requested amendments, finding them to be an attempt to retool his narrative and expand the issues on the eve of trial.

The court ordered the third parties to file an affidavit regarding the availability of the requested records but relieved them from the balance of the summons.

Finally, the court ordered the wife to pay $40,000 in costs thrown away for a previously adjourned trial date.

The applicant, a not-for-profit corporation, brought an application seeking a declaration that a vote held by the respondents to appoint themselves as an interim board was invalid.

The respondents had purported to hold the vote after the applicant's board of directors adjourned the annual general meeting due to disruptions.

The court found the vote was invalid and a nullity, as it was held without authority and contrary to the corporation's by-laws.

The court affirmed the incumbent board's authority and ordered a new annual general meeting to be held within 60 days, providing specific directions on membership eligibility and meeting conduct.

The plaintiffs in two related actions sought an interim Mareva injunction against the defendants, alleging a fraudulent investment scheme involving the purchase and resale of used vehicles.

The court found a strong prima facie case of fraud, noting evidence of non-existent purchasers, missing funds, and the transfer of assets by the personal defendant.

The court granted the Mareva injunction in the standard form, rejecting the defendants' request for an adjournment and their proposed terms allowing discretionary withdrawals for living expenses and business operations.

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.