Legal Blog:

Krystyne Rusek Presents at Knowledge Hub 2024

On April 25, 2024, Krystyne Rusek, counsel with Speigel Nichols Fox LLP, presented at the Knowledge Hub 2024: Churches, Charities and Not-for-Profits.

Krystyne Rusek Quoted in Investment Executive’s Article “Invalid wills: How far is too far?”

Krystyne Rusek, counsel with Speigel Nichols Fox LLP, is quoted in Rudy Mezzetta’s article, “Invalid wills: How far is too far?” for Investment Executive published March 11, 2024.

Access the full article here.

Consumer Proposal Annulled

Re Singh 2024 Ont SCJ (AJ)

A consumer proposal may be annulled under s. 66.31(1) of the BIA – even after the trustee has been discharged and the debtor has paid everything he promised to pay – if the debtor were not eligible to file a consumer proposal in the first place or the court’s approval were obtained by fraud. In this case, the debtor did not notify the trustee of the creditor’s judgment and the amount of that judgment meant that the debtor owed more than $250,000, the limit for a consumer proposal. The associate judge annulled the proposal.

Bankruptcy Survival

Brinkman Bankruptcy 2023 Ont SCJ

By way of a motion in the bankruptcy action, brought almost immediately after the trustee’s discharge, a creditor sought a declaration that that her judgment survived bankruptcy. The creditor had given the bankrupt funds to invest in a specific corporation; he did not do so and pocketed the money. The judge granted the declaration pursuant to s. 178(1)(d) of the BIA.

Mistake

Espartel Investments Limited v. MTCC 993 2024 Ont CA

Condo corporation had been paying inflated invoices relating to shared electricity since 2006. Its consultant caught the invoicing mistake in 2017 after the condo had paid $730,000 too much. The defendant argued that the condo should have caught the overcharge earlier such that most of it was statute barred. The trial judge held that it was not actually apparent and that a reasonable defendant would not have caught the mistake. The Court of Appeal upheld the decision. The court noted that the fact that the errors were capable of being discovered did not necessarily start the limitations clock. The test is reasonable discoverability, not the mere possibility of discovery. The court ordered the return of the funds, based on unjust enrichment.

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Attacks on Fraud

When a defrauded creditor realizes it has been defrauded and that the fraudster has seemingly moved the proceeds of the fraud to his spouse, what actions can the creditor take, in what form should it take them, and what evidence does it need to prove where its funds went? These questions were discussed in Sase Aggregate Ltd. v. Langdon, a 2023 decision of the Ontario Court of Appeal.

Spoliation

“Spoliation is ‘the destruction or material alteration of evidence or…the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation’.” It is the law’s response to the age-old excuse that “the dog ate my homework.”

A party to an action is under a duty to preserve documents and information that the party knows, or reasonably ought to know, are relevant to a legal action. Accordingly, “where a party fails in this duty, the doctrine of spoliation imposes ‘a rebuttable presumption of fact that the lost or destroyed evidence would not assist the spoliator. The presumption can be rebutted by evidence showing the spoliator did not intend, by destroying the evidence, to affect the litigation, or by other evidence to prove or repel the case’.”

With that in mind, we discuss the decision of the Ontario Court of Appeal in Trillium Power Wind Corporation v. Ontario 2023 ONCA 412.

Krystyne Rusek’s Article: Evidence of Incapacity in Contested Guardianship Applications

Krystyne Rusek, counsel with Speigel Nichols Fox LLP, prepared the article, “Evidence of Incapacity in Contested Guardianship Applications” for the Law Society of Ontario’s 25^th Annual Estates and Trusts Summit in October 2022.

Access the full article here.

Registration Complete

Gay Company Limited v. 962332 Ontario Inc. 2023 Ont SCJ

Under the Land Registry Reform Act and the Land Titles Act the registration of an instrument is complete only when the registrar certifies it. Once certified, the instrument takes its date and time from when it was originally submitted for registration. Until an instrument is certified, the party requesting its registration may withdraw it. Accordingly, in this case when a discharge of lien was registered in error, the registering party had the right to withdraw it before certification.