But Where's the Money: BC Court of Appeal addresses what to do when there is no evidence of assets to restrain
by Corey Groper
The Mareva injunction is a useful tool for victims of fraud. Ontario’s Divisional Court has described it as “a vital arrow in the civil law’s quiver to address serious fraud”[1]. What happens, however, when there is no evidence of any significant assets in the defendant’s hands for the injunction to restrain? That question was recently considered in Wu v. Ma, where the British Columbia Court of Appeal provided useful guidance on what to do when the evidence of fraud is persuasive but the evidence of assets is not.
Background
In 2018, the appellant, Hong Fang Wu (“Wu”), sued the respondent, Zhiyong Ma (“Ma”), and his company, Superoptionforex Consulting Inc. (“SOF”), for damages flowing from the lost investment funds she had provided them. Wu alleged that Ma invested almost the entirety of her money into a single company which went bankrupt, ultimately losing all her funds (the “2018 Action”). Following a 15 day trial, Wu and SOF were found to have been negligent and to have breached the fiduciary duty they owed to Ma. Ma was awarded judgment in the amount of $1,259,484.52 (the “Judgment”).[2]
Following the Judgment, Ma’s wife of 32 years, Ying Wang (“Wang”), filed for divorce. Wang and Ma quickly sold the property they jointly owned (the “Property”). Wang sought an unequal division of the family property, which Ma did not oppose. In response, Wu commenced a second action against Wang, Ma, and others, alleging that they conspired to effect fraudulent conveyances designed to frustrate her ability to collect on the Judgment (the “2022 Action”).[3]
The Motion to Set Aside the Injunction
Wu sought and obtained a Mareva injunction without notice. In granting the injunction, the motion judge found that there was a “strong prima facie case that Ma, who [was] already a judgement debtor, [had] taken steps to dispose of real property and turn it into liquid assets before the judgement against [him] could be registered”. There was also a “strong prima facie case of an intention to transfer those assets to his wife, Wang”.[4]
Wu amended her claim after the Mareva was granted and subsequent evidence established that the purchasers of the Property were arm’s-length third parties. The amended claim focused on the fact that almost immediately after the Judgment was granted, Wang and Ma drew down their joint line of credit to its limit and withdrew hundreds of thousands of dollars from their joint and individual accounts.[5]
With respect to the claim against Ma, the motion judge concluded that there was a strong prima facie case that Ma had “attempted to put exigible assets out of [Wu’s] reach”. This was informed by evidence that Ma had “hastily divested himself of assets shortly after the decision in the original action [was made] and a lack of evidence that he received valuable consideration [in exchange]”.[6] Notwithstanding these findings, the injunction was set aside because there “no evidence of any significant assets still in Ma’s hands for the injunction to restrain”. This “unfortunate fact” was, according to the motion judge, determinative of the issue before him.[7]
The Court of Appeal’s Decision
Wu appealed the decision with respect to Ma. Her main submission was that the motion judge erred in failing to appreciate that “it was open to him to draw an adverse inference against Ma for failing to provide any, or sufficient, evidence to credibly explain what he had done with the significant sums of cash he had withdrawn from various bank accounts in the month or two after the Judgment was awarded”.[8]
In describing the test for obtaining a Mareva injunction in BC, the Court of Appeal noted that, among other things, the “applicant must establish that the respondent has assets the injunction would cover or pertain to”.[9] This same requirement exists under Ontario law, where an applicant must be able to show that there are grounds for believing that the respondent has assets in the jurisdiction.[10] As the Court of Appeal explained, “it is antithetical to the core purpose of a Mareva injunction to seek such relief against a defendant who has no assets. In such circumstances, there is nothing for the defendant to dissipate. There is no prospect of wrongful conduct that needs to be enjoined”.[11]
Although Wu accepted that the burden of proof rested with her, she contended that she did “everything she could, through bank records and the examination of Ma, to establish that he had withdrawn and held significant sums of cash from his bank accounts”. According to Wu, “it then fell to Ma to explain with cogent and credible evidence what happened to that money”.[12]
The Court of Appeal acknowledged that “the failure of a defendant to respond with exculpatory evidence to evidence proffered by a plaintiff may have consequences”.[13] This was one such case as, according to the Court, Wu “was able to establish that Ma had largely emptied his various bank accounts in a reasonably short time after the Judgment was awarded”. Wu “could do no more with the documents she had obtained” as only Ma “knew what he did with the cash he had withdrawn from his bank accounts and he gave evidence about that issue”. In the circumstances, the motion judge should have taken “into account the relative ability of each party to produce evidence”.[14]
In the end, the Court of Appeal held that the because of Wu’s ability to explain what had happened to the monies Ma withdrew from his accounts and the improbability of Ma’s account regarding those withdrawals, the motion judge erred by “not recognizing that it was open to him to draw an adverse inference against Ma”.[15] As the balance of convenience clearly favoured Wu, the Court of Appeal restored the injunction.[16]
Key Takeaways
This decision offers welcome news for victims of fraud who would otherwise be prevented from successfully seeking injunctive relief. Although the burden to make out the requirements of the Mareva test continues to lie with the moving party, in the absence of sufficient evidence from a respondent, it is now open to the court to draw an adverse inference. This is particularly valuable in cases of fraud, where there often exists an “informational inequality” between the parties in relation to the transfer and disposition of funds.[17]
In this case, Ma’s evidence of what he said he did with the significant sums of cash he had removed from his various bank accounts in the month or two after the Judgment was awarded was seriously lacking. During his examination in aid of execution, Ma gave evidence that he had borrowed various sums of money from at least four different individuals several years earlier. Curiously, he could not recall the names of the persons he had borrowed money from or the amounts of the loans. Despite this, he claimed that each individual appeared at his door step following the sale of the Property and demanded repayment. Unsurprisingly, no record existed of any such payments.[18] Although the motion judge concluded that these “unexplained transfers to unknown parties” constituted “a badge of fraud” and “indicate[d] a strong prima facie case that Ma had attempted to put exigible assets out of Wu’s reach”, he set the injunction aside because there was no longer evidence of any significant assets in Ma’s hands.[19]
As these facts clearly show, once the assets have been disposed it is nearly impossible, in practical terms, for the victim of the fraud to establish what happened to them and where they went. Where that information is solely within the respondent’s knowledge (as is almost always the case), drawing an adverse inference that it has chosen not to respond because the evidence would not have been favourable to it means that victims of fraud who would not otherwise have been able to satisfy the Mareva test may now be able to secure injunctive relief. Although it remains to be seen how this adverse inference will be applied by future courts (in BC and beyond), for the time being it appears to have sharpened the “vital arrow in the civil law’s quiver”.
[1] 2092280 Ontario Inc v. Voralto Group Inc, 2018 ONSC 2305, para. 28.
[2] Wu v. Ma, 2024 BCCA 196 (“COA Decision”), para. 4.
[3] COA Decision, paras. 5-6.
[10] Meintjies v. John Doe, 2024 ONSC 842, para. 7.
[16] Ibid.
[18] COA Decision, paras. 27-28.
No Place to Hide: Court of Appeal for Ontario Endorses Broad Approach to Piercing the Corporate Veil in Circumstances of Fraud
by Corey Groper
In BH Frontier Solutions Inc. v. 11054660 Canada Inc. (Canadian Choice Supply), the Court of Appeal for Ontario clarified when courts will disregard the separate legal personality of a corporate entity that is being used as a shield for conduct akin to fraud. In doing so, the Court endorsed a broad approach to piercing the corporate veil, confirming that the question of whether a corporate entity is being used as a shield for fraudulent or improper conduct should be given an expansive and contextual interpretation.
Background
On September 29, 2020, BH Frontier Solutions (“BH”) entered into an agreement with Shijazhuang Hongray Group ("Hongray"), a Chinese manufacturer of disposable protective gloves, and Canadian Choice Supply (“CCS”), a Canadian company which presented itself as an authorized distributor of Hongray products in Canada, for the purchase of medical grade examination gloves (the "Agreement").[1] The Agreement was negotiated and signed on behalf of BH by its principal, Ran David Tao (“Tao”). It was negotiated and signed on behalf of CCS by its principals, Kambiz Salami (“Salami”) and Rongze Chai (“Chai”). It was signed on behalf of Hongray by an individual named Jiang Xiaoxain (“Xiaoxain”).[2]
Pursuant to the Agreement, BH would provide a 50% deposit to CCS upon signing and the remaining 50% balance following a successful inspection of the gloves before the shipment date. As the distributor, CCS was required to wire the payment to Hongray. It was also responsible for delivering the gloves to BH.[3]
In October 2020, BH wired $1,325,546.25 USD (the “Purchase Price”) to CCS, as directed by Chai. Of that amount, several orders were never delivered to BH and no refund was provided (the “Missing Orders”). The Missing Orders represented a total of $504,980.00 of the Purchase Price.[4]
The evidence adduced at trial showed that Salami and Chai transferred BH’s payments to six different individuals in China whom they did not know, supposedly at Jiang's direction.[5]
BH argued that the Agreement was fraudulent to the extent of the undelivered goods, and that CCS, along with Salami and Chai, were the agents of the fraud. In response, Salami and Chai claimed that although they sent BH’s payment to China at the direction of Jiang, they, themselves, were the victim of Jiang's fraud.[6]
The Trial Judge’s Decision
During the course of the trial, it became clear that “the transaction at issue was composed of two separate and distinct frauds: (i) a fraudulent misappropriation that took place in China; and (ii) a fraudulent misrepresentation that took place in Canada”. According to the trial judge, while “it is likely, but not certain…that [Salami and Chai] participated in the former”, it is “clear beyond any doubt” that they “perpetrated the latter and that [BH] suffered significant loss as a result”.[7]
The trial judge found that Salami and Chai perpetrated a fraudulent scheme by falsely resenting to Tao that CCS had a "factory direct" relationship with Hongray, which they described as “a world leading manufacturer of medical gloves”. This direct relationship with "no middle-men" was also featured prominently on CCS’ marketing pamphlets. It was Tao’s evidence that this direct relationship was very important to him and BH, so much so that he asked Salami and Chai to confirm it five times throughout their negotiations. The record also revealed that Tao was concerned about the authenticity of the medical gloves and sought to ensure that the funds he paid to CCS would be sent directly to Hongray. Tao was reassured of this by a clause in the Agreement which stated that CCS would send BH’s payments directly to Hongray.[8]
After payment was made by BH in accordance with the Agreement, Salami and Chai presented Tao with a receipt showing that the funds had been forwarded to Hongray. At trial, neither Salami nor Chai denied that the receipt was forged. Instead, they both blamed Jiang, who allegedly provided them with the false receipt. According to the trial judge, “whether or not [Salami and Chai] knew that the receipt for payment was fraudulent, they certainly knew that they had not transmitted [BH’s] funds directly to Hongray as provided in Clause 5 and as assured to [Tao]”. The record showed very clearly that BH’s funds were never sent to Hongray and likely never made their way to Hongray.[9]
In the end, the trial judge concluded that Salami and Chai’s representation that they had a "factory direct" business relationship with Hongray was knowingly false. In reality, Salami and Chai dealt only with Jiang and “did not know who she was nor did they do any investigation of her or the credibility of her supposed association with Hongray”. In doing so, they intentionally misled Tao and induced BH into entering the Agreement.[10]
The trial judge also analyzed the misappropriation of the funds in China, concluding that the evidentiary record did not reveal what happened to the funds once they were distributed to the unknown individuals by CCS. According to the trial judge, whether Jiang misappropriated the funds on her own, or with the assistance of Salami and Chai, was “difficult to say”.[11] Regardless, while the evidence fell “slightly short of definitively establishing [Salami and Chai] as full, intentional participants in the China-based fraud and misappropriation of funds”, it fully supported a finding that Salami and Chai “perpetrated a Canada-based fraudulent misrepresentation” by hiding behind their company and using deceit to manipulate BH into entering into an Agreement that ultimately caused it financial loss.[12]
The Corporate Veil is Pierced
In determining whether Salami and Chai should be held personally liable by virtue of their intentional misrepresentations which defrauded BH into entering the Agreement, the trial judge considered 642947 Ontario Ltd. v. Fleischer (2001), 56 OR (3d) 417, where Laskin J.A. stated that that “typically, the corporate veil is pierced when the company is incorporated for an illegal, fraudulent or improper purpose…But it can also be pierced if when incorporated 'those in control expressly direct a wrongful thing to be done”. According to the trial judge, both conditions were met on the facts of this case, as CCS was completely dominated by Salami and Chai and they had engaged in conduct akin to fraud.[13]
The Court of Appeal’s Decision
Salami and Chai raised two principle grounds of appeal. First, they held that the trial judge applied the wrong test for piercing the corporate veil. Second, they claimed that the trial judge erred by "artificially splitting" the fraud between Canada and China, essentially creating a novel theory of liability not contemplated by the parties.[14]
Fraudulent Misrepresentation Constitutes Conduct Akin to Fraud for the Purposes of Piercing the Corporate Veil
Salami and Chai argued that the trial judge erred in conflating fraudulent misrepresentation with "fraudulent or improper conduct" for the purposes of piercing the corporate veil.[15] This submission was rejected by the Court of Appeal, which held that while the legal test for fraud and fraudulent misrepresentation may differ, there is no basis on which fraudulent misrepresentation would not be considered “conduct akin to fraud” for the purposes of the veil piercing exercise. In this regard, the Court of Appeal endorsed a broad approach to the corporate veil analysis which, it noted, “should not be given a narrow interpretation”.[16]
The decision confirms that piercing the corporate veil is an equitable doctrine which allows courts to disregard the corporate form whenever necessary to prevent injustice. Significantly, the Court of Appeal’s reasoning suggests that a plaintiff need not prove that the corporate entity was created with fraud or injustice in mind to successful pierce the veil; it merely needs to prove that the corporate entity was used as a shield for “fraudulent or improper conduct”.
No Error in Splitting the Fraud
Salami and Chai also argued that the trial judge erred in "splitting" his analysis of the allegations of fraud between the Canada-based fraud and the China-based fraud, contending that this approach was not advanced by the parties.[17] This ground of appeal was also rejected by the Court, which held that “it was open to the trial judge to consider the conduct in Canada and the conduct in China as two distinct aspects of the allegations in the pleadings”.[18] Approaching the allegations this way, even if it differed from the manner in which they were presented in the pleadings, allowed the trial judge to assess the appellants' argument that they themselves may have been the victims of fraud in China, while nonetheless concluding that they were liable for engaging in fraudulent misrepresentation in Canada.[19] By dissecting the plaintiff’s allegations, the trial judge was able to undertake a broad and holistic analysis, ensuring that the dearth of evidence respecting one aspect of the fraud did not implicate his findings with respect to the other.
Key Takeaways
- Fraudulent misrepresentation constitutes “fraudulent or improper conduct" for the purposes of piercing the corporate veil.
- The piercing the corporate veil doctrine should not be narrowly construed - “conduct akin to fraud” should be afforded a broad and expansive interpretation.
- Veil piercing is a fact-driven exercise. At its core, alter ego liability is founded on considerations of fairness and equity.
- At a minimum, a party seeking to pierce the corporate veil must establish that the individual dominated the corporate entity in such a way as to perpetrate an injustice against the plaintiff.
- Courts may split or bifurcate allegations of fraud when the evidentiary record supports findings on some aspects of the claim, but not others.
[1] BH Frontier Solutions Inc. v. 11054660 Canada Inc. (Canadian Choice Supply), 2024 ONCA 932 (“COA Decision”), para. 1.
[7] BH Frontier v. Canadian Choice Supply, 2022 ONSC 2293 (“Trial Decision”), para. 10.
[9] Trial Decision, paras. 17-18.
[10] Trial Decision, paras. 25-26.
[11] Trial Decision, para. 30.
[12] Trial Decision, para. 37.
[13] Trial Decision, paras. 28-29.
[17] COA Decision, paras. 27-28.
Fraud: Where to Begin – Part I
March 2, 2023
Fraud: Where to Begin – Part I
by Corey Groper and Ryder Gilliland
Introduction
This is the first in a series of bulletins which will discuss relevant considerations for practitioners faced with the prosecution and defence of civil fraud actions.
This introductory bulletin addresses considerations at play when commencing a fraud action, including the various relevant causes of action available.
Future bulletins will address, among other topics, the following:
- advantages and disadvantages surrounding the pleading of fraud;
- practical tips when considering who to name as defendants;
- strategies for piercing the corporate veil;
- interim relief measures including Mareva, Norwich and Anton Pillar orders; and
- jurisdictional considerations which frequently arise in the context of cross-border fraud cases.
We will also aim to provide timely commentary on noteworthy fraud cases.
What to Plead
Fraud embraces a wide range of actionable wrongs and can take a variety of different forms. Depending on the factual circumstances of a particular case, different causes of action may be available to an aggrieved party including, among others, deceit, conversion, fraudulent misrepresentation, breach of fiduciary duty, conspiracy, bribery, breach of trust, inducing breach of contract, unjust enrichment, knowing receipt, and unlawful means. The common thread is deliberate action on the part of the wrongdoer, often premised on reckless and/or dishonest conduct. The more serious the alleged misconduct, the more cogent the evidence required to establish the fraud and meet the civil onus of proof.[1]
Civil Fraud, Fraudulent Misrepresentation and Deceit
Courts have long used the same test for civil fraud as they have for the torts of deceit and fraudulent misrepresentation.[2] As Justice Perrell noted in Holley v. Northern Trust Co. Canada, “at the fundamental core of fraud, deceit, or fraudulent misrepresentation is the moral turpitude of the defendant”.[3] In this regard, “while the notion of fraud may elude precise definition, it necessarily involves some aspect of impropriety, deceit, or dishonesty”.[4]
The core requirements of a civil fraud claim were set out by the Supreme Court of Canada in Bruno Appliance and Furniture Inc. v. Hryniak. They include: (1) a false representation made by the defendant; (2) some level of knowledge of the falsehood on the part of the defendant (whether through knowledge or recklessness); (3) the false representation caused the plaintiff to act; and (4) the plaintiff's actions resulted in a loss.[5] All four of these elements must be satisfied in order to make out a claim for civil fraud.[6]
Civil fraud must be established on a balance of probabilities.[7] The onus of proof rests upon the party alleging the fraud.[8] The evidence must be clear and convincing to satisfy the balance of probabilities test.[9] The totality of the evidence must be considered, not just separate pieces of evidence assessed in isolation.[10] The more serious the allegations, the more cogent the evidence required to establish the fraud and meet the civil onus of proof.[11]
The defendant’s knowledge and state of mind are critical considerations in cases of fraud.[12] Intent to deceive or reckless disregard for the truth is of vital significance.[13] Once fraud is established, it is not necessary for the plaintiff to show that the defendant intended to cause the plaintiff’s loss.[14] A defendant’s motive is irrelevant to the analysis.[15]
Silence and half-truths may constitute fraud in the correct circumstances.[16] Representations made through negligence, carelessness or wishful thinking are not enough to establish fraud in the absence of moral recklessness or a callous disregard as to whether or not the statement is true.[17] Deceit is made out where a defendant either knows that his or her representations are untrue or is reckless as to the truth of those representations.[18] It is not a defence to assert that the plaintiff could have discovered the fraud if they had investigated the truth of the representations themselves.[19] Failure to exercise due diligence is not a defence to fraud.[20]
It is not enough to prove that the defendant was aware of the false representations or fraudulent conduct or, even, that he or she benefited from the fraud. In order for liability to be established, it must be shown that the defendant actually perpetrated the fraudulent conduct by inducing the plaintiff to act (thereby incurring a loss).[21] The plaintiff need not show that the false representation was the sole inducement as long as it had a material influence.[22] If a misrepresentation is obviously material, it is a natural inference that the plaintiff relied upon it.[23]
Equitable or Constructive Fraud
The doctrine of equitable or constructive fraud captures conduct that falls short of deceit (and, therefore, is not “fraud” in the traditional sense) but that is still found to be unconscientious, unconscionable, or unfair.[24] As Justice Perrell noted in Holley, “the moral turpitude of constructive fraud is of a different sort than the lying with an intent to deceive which is the insignia of common law fraud”.[25]
In Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club, the Supreme Court of Canada stated that equitable or constructive fraud “is so infinite in its varieties that the courts have not attempted to define it”.[26] At its core, it is said to embrace “conduct not guided by principles of what is the right thing to do but falling short of the evil or wickedness of deceitful conduct”.[27] The doctrine is “wider than the tort of deceit or strict fraud in the legal sense” and encompasses all types of scenarios “where the court is of the opinion that it is unconscientious for a person to avail himself of the advantage obtained”.[28]
Notwithstanding the expansiveness of the doctrine, in Outaouais Synergest Inc. v. Keenan, the Court of Appeal for Ontario noted that there are certain recognized circumstances where the concept of equitable fraud is engaged:
- “First, conduct amounting to equitable fraud may prevent a party from relying on a limitation period or other statutory provision that would otherwise exonerate the party from liability…;
- Second, conduct amounting to equitable fraud is one of the preconditions to the availability of the remedy of rectification of a contract on the grounds of unilateral mistake…;
- Finally, conduct amounting to equitable fraud has been used to describe conduct that gives rise to a breach of a fiduciary duty or other equitable obligation…”[29]
A useful example of how the broad and flexible doctrine functions in practice is found in the recent decision of Campbell v. Toronto Standard Condominium Corp. No. 2600. The facts are straightforward. The Campbells, who were condo owners, brought an application to set aside an arbitral award ordering them to pay $30,641.72 to the respondent, the Toronto Standard Condominium Corporation No. 2600 (the “Condo”).[30]
The matter began as a dispute regarding the Campbell’s alleged non-compliance with the Condo’s Rules, including noise complaints and short-term rental issues.[31] Although the Campbells were led to believe that the arbitration would be limited to the Condo’s entitlement to legal costs in enforcing those Rules, the Condo “vigorously pursued” the substantive underlying issues between the parties, resulting in an arbitral award which far exceeded the issue of costs.[32] According to Justice Perell, “the Campbells were tricked into the arbitration, which was notionally or purportedly about costs but actually was an arbitration of substantive issues”.[33]
Despite finding that the Condo was not deceitful and that the facts did not disclose an “actual fraud”[34], Justice Perell set aside the arbitral award on the basis of constructive fraud[35], determining that the Campbells had been “outfoxed” and “lured into an adjudicative trap”.[36]
Justice Perrell made it clear that his decision “should not be read as attributing any actual fraud or moral turpitude on the Condo”.[37] Instead, the “critical matter” which justified setting aside the arbitral award was “that it was unconscionable and unfair that an arbitration notionally or purportedly about costs became something much different”.[38] As Justice Perrell put it:
“In my opinion, the Campbells are the victims of constructive fraud, which focuses on unfairness more than it does on deceit. Although the Condominium Corp. was not deceitful, it misled, outmaneuvered, and outsmarted the Campbells. The court should not countenance the trickery and the injustice, and I, therefore, set aside the arbitral award”.[39]
The decision serves as a prime example of the elasticity of constructive fraud and the manner in which it operates to fill in the gap left by conventional fraud where some of the constituent elements are missing. Notwithstanding the lack of any evidence of deceit, the Condo had “led the Campbells to believe that the only outstanding issue was the matter of costs” in a “sort of procedural sleight of hand”.[40] In the circumstances, it was “simply unconscionable and unfair” to allow the arbitral award to stand[41].
Newsletter
[1] Anker v. Sattaur, [2007] O.J. No. 5257, at para. 117.
[2] Paulus v. Fleury, 2018 ONCA 1072, at para. 8 (also see: Deposit Insurance Corp. of Ontario v. Malette, 2014 ONSC 2845, at para. 19; Amertek Inc. v. Canadian Commercial Corp., (2005), 76 O.R. (3d) 241, at para. 63; Midland Resources Holding Ltd. v. Shtaif, 2017 ONCA 320, at para. 162)
[3] Holley v. The Northern Trust Company, Canada, 2014 ONSC 889, at para. 113.
[5] Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, at para. 21.
[6] Brozmanova v. Tarshis, 2017 ONSC 6559, at para. 17.
[7] McGee v. Samra, 2021 ONSC 2540, at para. 54.
[8] Russell v. Thompson, 2021 ONCJ 16, 2021 at para. 17.
[9] Rosati v. Reggimenti, [2018] O.J. No. 41, at para. 33.
[11] Russell, at para, 19 (citing: Anker v. Sattaur, [2007] O.J. No. 5257, para. 117).
[12] Cannon v. Funds for Canada Foundation, 2012 ONSC 399, at para. 478.
[13] Gebre-Hiwet et al v. McPherson, 2022 ONSC 1421, at para. 74.
[14] Bruno, at para. 18 (citing Derry v. Peek (1889), 14 App. Cas. 337, at p. 374).
[15] Fiorillo v. Krispy Kreme Doughnuts Inc., 2009 CanLII 29902, at paras 75-77.
[16] Borelli v. Chan, 2018 ONSC 1429, at para 912.
[17] McLaughlin v. Colvin, 1941 CanLII 302, [1941] 4 DLR 568, at 583.
[18] Canadian National Railway Company v. Holmes et al., 2022 ONSC 168, at para. 195.
[19] Vidcom Communications Ltd. v. Rattan, 2022 BCSC 522, at para. 54.
[22] Caroti v. Vuletic, 2022 ONSC 4695, at para 545.
[23] Caroti, at para 545 (citing: Borrelli, at para 918).
[24] Crowder v. Canada Builds Company, 2022 ONSC 6018.
[26] Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club, 2002 SCC 19, at para. 39.
[27] Rajakumar v. Marydel Homes (Beaverton) Inc., 2022 ONSC 4121 (CanLII), para. 123 (citing Holley, para. 123).
[28] Performance Industries, para. 39.
[29] Outaouais Synergest Inc. v. Keenan, 2013 ONCA 526 (CanLII), para. 93.
[30] Campbell v. Toronto Standard Condominium Corp. No. 2600, 2022 ONSC 2805, at para. 1
[34] Campbell, at paras. 2 & 85.