Yesterday we had our first snowfall in Toronto for the season. Undoubtedly, the holidays are coming.
People are either preoccupied with the coming holidays (Christmas, Kwanza, Hanukkah, Ashura, Boxing Day, New Year’s Day … take your pick) or are looking forward to taking time off work. No doubt, major financial institutions will also be closed for a few days, thereby delaying the clearing of cheques.
While people are otherwise occupied, scammers and fraudsters are taking advantage of the combination of bank closures and holiday distractions to defraud their victims.
Dan Pennington of LawPRO has said that bad cheque scams are on the rise and warned lawyers taking large sums of trust funds to be vigilant.* He said the scams are becoming more and more sophisticated. Some of the bad cheques could even fool bank tellers.
According to Pennington, a lawyer from St. Catharines was recently suspended for misappropriating trust funds after he was defrauded with fake cheques. The funds from the fake cheques did not clear and resulted in a shortfall in his trust account. The lawyer tried to cover the loss with other clients’ money held in trust. But the shortfall soon became too large, and the lawyer became the subject of an investigation.
In addition to bad cheque scams, “Oklahoma frauds” are resurfacing, according to Jeffrey W. Lem, a partner in the real estate group at Miller Thomson LLP.^ A recent lawsuit was brought alleging $6.5 million in damages as a result of mortgage frauds.
Lem explained in a nutshell how an Oklahoma fraud operates. A fraudster buys a piece of land for a small amount, say $10,000, in an otherwise legitimate transaction. The fraudster then flips the property to an accomplice for a grossly inflated price, say $500,000. The accomplice then goes to the lender for a mortgage against the inflated property value. Typically, the fraudsters rapidly target a single mortgage lender several times before they take off with the proceeds. The lender then is left with collateral properties worth a fraction of the mortgaged value.
*Michael McKiernan, “St. Catharines case shows pitfalls of fake cheques” Law Times (28 November 2011) 13
^Jeffrey W. Lem, “Oklahoma frauds return as scam of choice” Law Times (28 November 2011) 7
This blog is provided for your reference only and is not a substitute for the law. This article is not legal advice and should not be regarded as such.
Publication Ban in Williams’s Divorce Is Set Aside
The divorce involving the notorious convicted serial killer Russell Williams has taken another detour in the Court of Appeal.*
Williams’s wife, identified only as M.E.H., obtained a publication ban and a sealing order by motion from the Superior Court of Justice on April 12, 2011. Various media outlets then intervened and appealed the publication ban.+
On January 24, 2012, the Ontario Court of Appeal set aside the challenged provisions under the publication ban, unless the ban is further ordered by the court within 14 days.
In its reasoning, the Court of Appeal found that the motion judge correctly identified the legal principles relating to publication bans and sealing orders. However, the evidence at bar could not support that the order was necessary to prevent a serious risk to the proper administration of justice. Absent that finding, said the Court of Appeal, “the orders could not have been made under the controlling jurisprudence.”
Under the jurisprudence, a publication ban should only be ordered when:
(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.^
The Court of Appeal acknowledged the wife’s right to go to court without fear of harm. “Access to the court should not come at the cost of a substantial risk of serious debilitating emotion or physical harm to the party seeking access,” said the Court of Appeal.
However, in the Court of Appeal’s opinion, the evidence provided by the wife wasn’t enough to justify a sealing order. In particular, the Court of Appeal could not find evidence that the media’s access to items covered by the publication ban would in any way negatively affect the wife’s ability to fully participate in the proceeding. In other words, the dangers of harm claimed by the wife had not been substantiated.
*2012 ONCA 0035
+See my previous post, “On Publication Bans and Sealing Orders in Family Law,” August 17, 2011
^R. v. Mentuck, 2001 SCC 76, at para. 32
This blog is provided for your reference only and is not a substitute for the law. The law may have changed since the publication of this article. This article is not legal advice and should not be regarded as such.