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Knowing Assistance/Knowing Receipt

Posted on August 24, 2020 | Posted in Civil Litigation, Five Liners

Caja Paraguaya de Jubilaciones y Pensiones del Personal de Itaipu Binacional v. Garcia 2020 Ont CA

The issue was whether the wife, who was also a sole shareholder of a corporation involved in the transfer of funds, was liable either for knowing receipt or knowing assistance of the fraud that husband carried on. In effect, when is a stranger to a fiduciary relationship made liable to the beneficiary of that relationship? As to knowing assistance, the stranger needs to have actual knowledge of the fiduciary relationship and the fraudulent and dishonest conduct and assist in that conduct. Actual knowledge would encompass wilful blindness or recklessness. Wilful blindness is a subjective standard that depends upon the stranger’s actual state of mind; it is not an objective standard as to what the stranger ought to have known. Mere carelessness or negligence is not sufficient. Knowing receipt requires that the stranger receive trust property with actual or constructive knowledge that the trust property is being misapplied. Unlike knowing assistance, the requirement of actual knowledge includes knowledge of facts that would put a reasonable person on inquiry and that inquiry is not made.

 

Jonathan Speigel

 

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

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