Legal Blog:

Privilege

Privilege between lawyers and clients is very important. Lawyer and client cannot open up to each other if they think that, in the case of subsequent litigation, the opposing litigants will be delving into their communications and notes. However, privilege extends only to communications between the client and the lawyer for purposes of giving and receiving advice. Accordingly, in a run-of-the-mill real estate transaction, precious little is privileged and we routinely obtain the entire file of real estate solicitors. However, some real estate files are unusual and privilege not only exists, it is crucial. This was illustrated in 1824120 Ontario Limited v. Matich, 2023 ONSC 938 (Div. Ct).

Agreement

An elderly couple agreed to sell their land after a seemingly aggressive real estate agent persuaded them to list the family farm for $18.5 million. The ultimate sale price was $16.5 million. The vendors were elderly and ill, but they were not stupid. They inserted a clause by which the agreement was conditional for 3 days upon the solicitor of the couple approving the agreement terms. The condition was stated to be for the benefit of the vendors, but they could waive it at any time within the 3 days. If the condition was not met or waived, the agreement was “null and void.”

Audit

We often encounter situations in which the shareholders of a closely held corporation do not prepare any annual minutes, never have the financial statements audited, and never obtain waivers of the audit requirement from all shareholders. They just let things drift. This is all right – until it is not – and the shareholders disagree on other matters.

Often, one shareholder has all of the information and power and the other claims oppression. The first thing we do, when acting for the disgruntled shareholder, is to demand an audit of the corporation’s financials for the years for which the corporation had no audit and no waiver of the audit requirements. Yes, this is expensive, but it is necessary for a minority shareholder to understand what is happening with the corporation and it is salutary for the majority shareholder to realise that he or she will be paying the brunt of the costs for it.

BIA Fraud

We often attack transfers using the Fraudulent Conveyances Act. However, that is not the only arrow in our quiver. Once the debtor assigns or is assigned into bankruptcy, the provisions of the Bankruptcy and Insolvency Act take effect – in addition to the remedies under the Fraudulent Conveyances Act. The criteria to set aside a transfer under the two statutes are similar, but not identical. The criteria set out under the BIA were discussed in Jovkovic v. DaSilva, a 2023 decision of the Ontario Court of Appeal.

Background

The bankrupt and his spouse jointly bought a property in 2004. The plaintiff brought his action against the bankrupt in March 2015. Other creditors emerged in late 2015 arising out of contracts between them and the bankrupt. The bankrupt transferred his interest in the property to his spouse in June 2016. The other creditors commenced their actions against the bankrupt shortly after that. The bankrupt assigned into bankruptcy in November 2017.