Improvident Disposition of Assets
Equity - Unjust Enrichment
Montor Business Corporation v. Goldfinger [I] (Ont CA, 2016)
This case is useful firstly for it's extended consideration of the concept of improvident disposition of assets. While the court decided the issue on the application of this concept in a bankruptcy context, it continues to assess the various 'badges of fraud' factors that inform the same issue in the context of the Fraudulent Conveyances Act, the Assignment and Preferences Act and elsewhere [paras 51-87]. These factors include:
The case also considers principles applicable to a finding of oppression under the Ontario Business Corporations Act [paras 98-103], and unjust enrichment [paras 109-114].
- the transferor has few remaining assets after the transfer;
- the transfer was made to a non-arm’s length person;
- the transferor was facing actual or potential liabilities, was insolvent, or about to enter a risky undertaking;
- the consideration for the transaction was grossly inadequate;
- the transferor remained in possession of the property for his own use after the transfer;
- the deed of transfer contained a self-serving and unusual provision;
- the transfer was secret;
- the transfer was effected with unusual haste; or
- the transaction was made in the face of an outstanding judgment against the debtor.