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Bankruptcy and insolvency — Unjust enrichment — Limitation of actions (00:15:36) Reasons for Judgment: Jamal J. (Wagner C.J. and Karakatsanis, Rowe, Martin and O’Bonsawin JJ. concurring)
(00:15:46) I. Introduction – 1
(00:21:48) II. Background – 11
(00:21:50) A. The Golden Oaks Ponzi Scheme – 11
(00:24:25) B. Legal Actions Commenced by the Trustee – 16
(00:27:36) III. Judicial History – 24
(00:27:39) A. Ontario Superior Court of Justice, 2019 ONSC 5108, 76 C.B.R. (6th) 3 (Gomery J. (as she then was)) – 24
(00:28:00) (1) The Limitations Defence and the Corporate Attribution Doctrine – 25
(00:30:41) (2) Legal and Equitable Set-Off – 29
(00:32:08) (3) Commissions Under the Referral Agreements – 33
(00:32:34) (4) Unlawful Preference Claims Against Mr. Scott – 34
(00:33:25) B. Court of Appeal for Ontario, 2022 ONCA 509, 162 O.R. (3d) 295 (Sossin J.A., Strathy C.J. and Roberts J.A. concurring) – 35
(00:34:01) (1) The Limitations Defence and the Corporate Attribution Doctrine – 36
(00:35:45) (2) Equitable Set-Off – 39
(00:36:14) (3) The Unlawful Preference Claims Against Mr. Scott – 40
(00:36:35) (4) The Trustee’s Cross-Appeal on the Referral Agreements – 41
(00:36:57) IV. Issues – 42
(00:37:36) V. Analysis – 43
(00:37:38) A. Are the Trustee’s Actions Statute-Barred by the Limitations Act, 2002? – 43
(00:39:52) (1) Section 12 of the Limitations Act, 2002 Does Not Resolve Whether the Trustee’s Actions Are Statute-Barred – 50
(00:47:52) (2) The Court of Appeal Did Not Err by Exercising Discretion Not to Attribute Mr. Lacasse’s Knowledge to Golden Oaks Under the Corporate Attribution Doctrine – 62
(01:01:07) (3) It Is Not Necessary to Address Section 5(1)(a)(iv) of the Limitations Act, 2002 – 82
(01:01:32) (4) Conclusion – 83
(01:01:39) B. Are the Appellants Entitled to Claim Equitable Set-Off Under Section 97(3) of the BIA? – 84
(01:02:42) (1) General Principles of Set-Off in Bankruptcy – 86
(01:07:12) (2) The Trial Judge Did Not Err in Denying Equitable Set-Off – 95
(01:09:04) (3) Conclusion – 100
(01:09:10) C. Were the Referral Agreements Illegal Contracts at Common Law? – 101
(01:10:16) (1) The Trustee Pleaded and Argued Common Law Illegality at Trial – 103
(01:11:51) (2) The Court of Appeal Correctly Held That the Referral Agreements Were Illegal Contracts at Common Law – 107
(01:18:27) (3) Conclusion – 121
(01:18:35) D. Were Mr. Scott and Golden Oaks Not Dealing at Arm’s Length for the Purpose of Section 95(1)(b) of the BIA? – 122
(01:19:47) (1) General Principles of Non-Arm’s Length Dealing Under Section 95(1)(b) of the BIA – 125
(01:21:55) (2) The Trial Judge Did Not Err in Finding Non-Arm’s Length Dealing – 128
(01:24:17) (3) Conclusion – 131
(01:24:28) VI. Disposition – 132
(01:24:33) Concurring Reasons: Côté J.
(01:24:38) I. Introduction – 133
(01:27:03) II. Analysis – 138
(01:30:06) A. In What Capacity Did the Trustee Bring the Claims in Unjust Enrichment? – 142
(01:32:54) B. The Common Law Doctrine of Corporate Attribution Is Reserved for Exceptional Cases – 145
(01:38:29) C. Mr. Lacasse Was Golden Oaks’ Agent Through the General Principles of Agency – 155
(01:38:34) (1) Agency Law and Corporations – 155
(01:44:06) (2) Mr. Lacasse Was Golden Oaks’ Agent – 163
(01:49:35) D. The Claims in Unjust Enrichment Were Not “Appropriate” and Therefore Not Discoverable Until the Trustee Was Authorized by the Court to Bring Them – 171
(01:54:18) E. Section 97(3) of the BIA Expressly Permits the Reordering of Creditors – 180
(01:58:06) III. Conclusion – 186
