Ahmed v. Rowe, 2017 ONSC 2289
The Court dismisses the Defendants’ motion to strike the paragraphs in the amended Statement of Claim which assert a claim under the Fraudulent Conveyance Act.
Released April 12, 2017 | Full Decision [CanLII]
The Plaintiffs commenced an action for personal injury damages in excess of $20,000,000. Two weeks after having been served with the Statement of Claim, the Defendant, Arnold Rowe, transferred the matrimonial home into the sole name of his wife, Letna, for $2.
Upon learning of the transfer of property, the Plaintiffs amended the Statement of Claim to add Letna as a Defendant, and to assert a claim under the Fraudulent Conveyance Act (FCA) to render the transfer void for being fraudulent. A Certificate of Pending Litigation was also registered against the title of the property.
Arnold brought the within motion seeking an order pursuant to rule 5.05 to strike out the paragraphs in the amended Statement of Claim relating to the FCA claim or in the alternative, staying that claim pending trial determination of the claim for damages for personal injuries. Counsel for the Defendants argued the claim under the FCA did not become relevant unless and until the Plaintiffs established a claim for damages and they received a judgment in excess of the policy limits. Counsel further submitted there were no common questions of law or fact between the personal injury claim and the FCA claim. Also, the FCA claim would unnecessarily lengthen proceedings and require Letna’s participation.
Counsel for the Plaintiffs argued the language of the FCA has been construed to include plaintiffs whose claims have not yet crystallized by way of judgment. Further, the relevant limitation period for commencing a fraudulent conveyance claim arises once it is discovered a fraudulent conveyance has occurred; thus it is on the Plaintiffs to commence the action expeditiously. Lastly, the Plaintiffs argued they would suffer prejudice if the FCA claim was stayed as it would require them to go through the entire litigation process a second time.
In dismissing the Defendants’ motion, the Court considered the potential prejudice to both parties, and found it would be redundant to have the parties go through another set of discoveries, pre-trial and trial. Instead, the Court felt the trial judge would have ample power to conduct the proceedings in a way that would minimize, if not eliminate, any prejudice to the Defendants and any unnecessary involvement of Letna could be compensated in costs.
Read the full decision on CanLII