Canada: Ontario Court Of Appeal Summaries (August 27 – 31, 2018)

Last Updated: September 6 2018
Article by John Polyzogopoulos

Following are the summaries for this week's civil decisions of the Court of Appeal for Ontario.

This was anti-SLAPP week at the Court of Appeal. In 1704604 Ontario Ltd. v. Pointes Protection Association, the Court of Appeal addressed in detail the Protection of Public Participation Act, 2015, which provides defendants to a lawsuit with the option of a pre-trial motion to dismiss the lawsuit on the basis that it constitutes a Strategic Lawsuit Against Public Participation (SLAPP). In this case, 170604 Ontario Ltd. brought an action against Pointes Protection Association and others for breach of contract stemming from a settlement, which allegedly prohibited Pointes and the other defendants from advancing certain claims in subsequent judicial proceedings. Analyzing both the Act in general and the relevant provisions (mainly s. 137.1), the Court found that the plaintiff failed, on grounds of insufficient merit to its lawsuit and on grounds of public interest, to satisfy the court that its action should continue. The Court's detailed analysis of the two-part test under section 137.1 of the Act will invariably inform the case law on this section as it develops.

Other cases this week that dealt with defamation and s.137 of the Act included: Fortress Real Developments Inc v Rabidoux, a case stemming from a series of tweets; Veneruzzo v. Storey, which focused on Facebook postings; Platnick v. Bent, which involved a doctor who sued a lawyer who posted an email on the Ontario Trial Lawyers Association "Listserv"; Able Translations Ltd. v. Express International Translations Inc., an action based on an internet post; and Armstrong v. Corus Entertainment Inc., a case about a political candidate who had a 25-year-old criminal conviction.

Pointes Protection is therefore an important decision with which all litigation counsel should become familiar.

Other topics covered this week included setting aside transfers under value/fraudulent conveyances between husband and wife in the bankruptcy context, costs and solicitor's liens in the class action context, and disciplinary proceedings involving both lawyers and pharmacists.

Finally, we are excited to be finally launching the new look of our blog next week, so please stay tuned.


aMercado Capital Corporation v Qureshi, 2018 ONCA 711

[Feldman, Benotto and Brown JJ.A.]


M. Myers and M. Krygier-Baum, for the appellant

V. Pohani, for the respondent

Keywords: Bankruptcy and Insolvency, Transfers at Undervalue, Fraudulent Conveyances, Family Law, Net Family Property, Matrimonial Home, Joint Ownership, Bankruptcy and Insolvency Act, RSC 1985, c. B-3, ss. 38, 96(1)(b)(i), Family Law Act, RSO 1990, c F.3


The appellant is the creditor of the respondent's husband. While married, the husband and wife sold their matrimonial home ("First Home"), which was registered in the husband's name, and used the proceeds and other money to purchase a new home in both their names ("Second Home").

After the appellant petitioned the husband into bankruptcy within one year of the purchase, the appellant sought to void the transfer of half of the new home into the respondent's name, as a transfer for undervalue contrary to s. 96(1)(b)(i) of the Bankruptcy and Insolvency Act ("BIA"). After being adjudged bankrupt in 2016, the Second Home was sold.

In dismissing the appellant's claim, the application judge exercised his "equitable discretion" not to declare the respondent's 50% interest in the Second Home void, relying on the following factors: the good faith of the husband and wife and the lack of any intention to defeat creditors; the respondent's "substantial non-monetary contribution to the family by her hard work managing the household and caring for their children;" the contributions of the respondent's parents to the purchase price of both the First Home and Second Home; the husband and wife's honest belief that the respondent was entitled to a 50% interest in the Second Home because it was their matrimonial home; the respondent and her children have no other guaranteed form of financial support, the Second Home is the respondent's only asset, and the respondent needs the proceeds from the sale of the home to support herself and her children; and the agreement of purchase and sale for the Second Home was signed by the respondent in 2015, well before the one year period preceding her husband's bankruptcy.


(1) Did the purchase of the Second Home in the joint names of husband and wife constitute a transfer by the husband to the respondent of one half of the home at undervalue?

(2) If so, did the transfer take place within one year or five years of the date of the husband's initial bankruptcy event?

(3) If the transfer was within five years, did the appellant prove that the transferor was either insolvent when the transfer took place or intended to defraud, defeat, or delay a creditor?

(4) Does the court have discretion under s. 96(1) of the BIA to decline to declare the transfer void as against the trustee in bankruptcy or against the creditor authorized to bring the application under s. 38?

(5) If the court has that discretion, did the application judge err in law in the basis on which he exercised it?


Appeal dismissed.


(1) No, there was not a transfer at undervalue. Both husband and wife believed that each had an equal interest in their matrimonial homes, even though the First Home was registered in the husband's name alone, and the funds used to purchase both homes came from the husband's business and from the respondent's parents. The respondent's direct contribution was in running the home and raising the children.

This finding is consistent with the Family Law Act and the notion that marriage is an economic partnership, entitling each partner to an equal share of the net value of assets.

(2) No, the transfer did not take place within one year of the date of the husband's bankruptcy.

The respondent entered into the agreement of purchase and sale for the Second Home on February 18, 2015. The initial bankruptcy event occurred on June 2, 2016. February 18, 2015 was the effective date of the impugned disposition of property.

(3) No, the appellant did not prove that the husband was insolvent when the transfer took place or intended to defraud, defeat, or delay a creditor.

The appellant bore the burden of establishing the foregoing requirements in order to impugn the transfer at undervalue. Since none of these elements were proved, there was no basis for the court to void the purchase of the Second Home in joint names and in particular, to void the impugned disposition to the respondent.

(4)/(5) Since there was no finding of an impeachable transfer for undervalue, there was no need for the court to address the issue of the scope of the discretion in the court not to make the order when all the conditions are met.

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John Polyzogopoulos
Events from this Firm
29 Sep 2018, Speaking Engagement, Toronto, Canada

Blaneys Partner Diane Brooks will present her paper, 'Dealing with the Issues that Can Arise During the Ongoing Operation of a Private Company' at The Law Society of Ontario's Practice Gems: Essentials of the Privately Held Company forum on September 29.

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