Legal Blog

Declarations Under BIA – Fraud

784773 Ontario Limited v. Larkin 2021 Ont SCJ

The judge granted a partial summary judgment for the amount that the defendant had admitted he had taken improperly. The judge also issued a declaration that the judgment debt arose out of fraud, embezzlement, misappropriation, or defalcation occurring while the defendant was acting in a fiduciary capacity [for use to fall within BIA s. 178(1)(d)]. The judge acknowledged that some judges had held it was improper to issue such a declaration when there had been no bankruptcy and that other judges had allowed the declaration.

Bank of Montreal v. Mathivannan 2021 Ont SCJ

Motion for default judgment for a debt due. The judge issued the judgment for the debt, but refused to make a declaration that the debt arose out of fraudulent misrepresentation and false pretences [for use to fall within BIA s. 178(1)(e)]. The judge refused the declaration because (i) the plaintiff had not adduced sufficient facts to prove that allegation; and (ii) in any case, because the defendant had not yet become bankrupt, the request was premature.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.