Law Times

April 3, 2017

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Now-retired judge made errors, argue lawyers BY SHANNON KARI For Law Times A now-retired Ontario Su- perior Court judge made numerous legal and fac- tual errors and findings on issues not discussed at trial, argue lawyers for the appellant in a long-running commercial litiga- tion action related to a rehabilita- tive shoe-insert business. The alleged errors made by Jus- tice John McIsaac are outlined in written submissions filed in the Ontario Court of Appeal on behalf of Roy Gardiner, a Toronto-area inventor. The Court of Appeal is sched- uled to hear arguments April 5 over a ruling issued by McIsaac in 2015, in which he ordered Gar- diner and his co-defendants to pay $2.2 million in damages to Lance Todd, an investor in Bare- foot Technologies. McIsaac, who retired at the end of 2015, con- cluded that Gardiner and his wife engaged in a "financial f leecing" of Todd through acts of "fraud, false pretences and forgery," in his rul- ing in Todd Family Holdings et al v. Gardiner et al. The legal action was com- menced in 2009. It stemmed from the failure of Gardiner to repay a $1-million loan advanced in 2005 by Todd, which was to be repaid with $500,000 interest by 2015. In addition to the damages award, McIsaac issued a number of declarations. They included orders that any new insole patents developed by Gardiner were for the exclusive benefit of Todd and his company Future Edge, until the damages were paid in full. As well, he required the defend- ants to pay more than $960,000 in full indemnity legal costs to Todd's trial lawyers, who McIsaac previously denied a request to be removed as counsel. The lawyers acting for Gardiner in his appeal state that what was a simple "debt recovery" case ap- pears to be something much more CALL FOR CLARITY Delegating Crown's duty to consult? P7 FOCUS ON Personal Injury Law P8 See Litigation, page 2 PM #40762529 $5.00 • Vol. 28, No.12 April 3, 2017 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M BETTER DIVERSITY Lawyers encouraged to apply to judgeships P5 BY ALEX ROBINSON Law Times L awyers say a recent On- tario Court of Appeal decision in a dispute over insurance beneficiary designations has important im- plications for when the remedy of constructive trust is available to a party. In Moore v. Sweet, the court set aside a motion judge's decision to grant $250,000 in proceeds of a dead man's insurance policy to a former wife, Michelle Moore, who had been paying policy premiums, instead of giving them to his com- mon law wife, Risa Sweet. The case turned on whether a constructive trust is available as a remedy in only two situations, which are when unjust enrich- ment and wrongful acts have tak- en place. The case also concerned wheth- er provisions in the Insurance Act provided a juristic reason for the enrichment of one of the parties or whether there should be a finding of unjust enrichment. Lawyers say the decision is im- portant as it provides a complex le- gal analysis on issues that are never straightforward and deals with the intersection of family law and in- surance law. "The issue of constructive trust comes up frequently and this case is dealing with the legal principles that judges need to consider in de- ciding whether to grant that rem- edy or not," says Sheila Crummey, an estate planning lawyer with Miller Thomson LLP, who did not act in the case. "This is going to come up time and time again so it's important that the legal framework for decid- ing those disputes is clear." The case concerned the fact that Moore had been named the bene- ficiary of the life insurance policy before she was divorced from her husband, Lawrence Moore, but she was never labelled as an irre- vocable beneficiary. Despite hav- ing an oral agreement with Moore that she would receive the pro- ceeds of the policy if she continued to pay the premiums, the former husband later designated Sweet as an irrevocable beneficiary. The dispute arose out of who was entitled to the proceeds of the policy when he died. The motion judge ruled in fa- vour of Moore. See Case, page 2 Sheila Crummey says having the Supreme Court of Canada weigh in on an Ontario case could help bring clarity to the issues of constructive trust and unjust enrichment. Photo: Robin Kuniski Court of Appeal rules on unjust enrichment Matthew Milne-Smith said in a submission to court that a 'trial judge made a number of serious, erroneous and unnecessary findings of fraud against the defendants.' LEGALFEEDS.CA POWERED BY MAJOR COURT RULINGS • DAILY UPDATES NEWS ROUNDUP • EVENTS LEGAL NEWS SERVED FRESH Untitled-1 1 2017-03-28 12:53 PM & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM TORONTO | BARRIE | HAMILTON | KITCHENER 1-866-685-3311 | mcleishorlando.com cLeish Orlando_LT_Jan_20_14.indd 1 14-01-15 3:15 PM

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