Canucks facing millions $$ out of pocket in lawsuit if they lose

[Killion]

....from the previous owners in the event of the Canucks being fixed with liability.

Well, seeing as how Stan McCammon was the architect of that dealeo', personally, Id like to see him digging into his own Levi's over this one the sonofa... but I digress. Breathe deep, count..... No doubt the insurers are more than cognizant, the Aquilini boys more than likely paying over premium subsequent to this particularly actionable case. Can you believe McCaw/McCammon would sell without inserting such a clause, making sure it was accepted before slamming the door on their way out of Vancouver & BC?....

 

[Wetcoaster]

Nor am I, but still... I dont know about that. It depends on a lot of factors, jurisdiction, transferred to dependents, your spouse, off-shore, whatever. State by state & province-province it differs. Pocklington for example pulled all kinds of Shenanigans in avoiding his creditors, from personal to the Province of Alberta to the IRS & all stops in between.

In this case Ontario law will apply - Fraudulent Conveyances Act, RSO 1990, c F.29.

Where conveyances void as against creditors

2. Every conveyance of real property or personal property and every bond, suit, judgment and execution heretofore or hereafter made with intent to defeat, hinder, delay or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, penalties or forfeitures are void as against such persons and their assigns. R.S.O. 1990, c. F.29, s. 2.

Where s. 2 does not apply

3. Section 2 does not apply to an estate or interest in real property or personal property conveyed upon good consideration and in good faith to a person not having at the time of the conveyance to the person notice or knowledge of the intent set forth in that section. R.S.O. 1990, c. F.29, s. 3.

Where s. 2 applies

4. Section 2 applies to every conveyance executed with the intent set forth in that section despite the fact that it was executed upon a valuable consideration and with the intention, as between the parties to it, of actually transferring to and for the benefit of the transferee the interest expressed to be thereby transferred, unless it is protected under section 3 by reason of good faith and want of notice or knowledge on the part of the purchaser. R.S.O. 1990, c. F.29, s. 4.​

 

[Killion]

Ok. K. But my understanding of it is that Mr.Bertuzzi executed the transfer days before Moores attorney filed in Ontario Superior. This man, Dalton (or is it Danton?. Doolin Dalton or Mike Danton youd' think the Moore camp would be a lil' more savvy no?), incensed at the action btw.

 

[Wetcoaster]

Ok. K. But my understanding of it is that Mr.Bertuzzi executed the transfer days before Moores attorney filed in Ontario Superior. This man, Dalton (or is it Danton?. Doolin Dalton or Mike Danton youd' think the Moore camp would be a lil' more savvy no?), incensed at the action btw.

Tim Danson is Moore's lead counsel in Ontario.

At the time of the property conveyance there was an ongoing suit in Colorado as the cases between Ontario and Colorado overlapped. The Ontario suit was filed to protect against expiry of the limitation period while there was a pending appeal in the Colorado Court of Appeal of the lower court declining jurisdiction.
http://nl.newsbank.com/nl-search/we...page=10&p_sort=YMD_date:D&s_trackval=GooglePM

However the Ontario statute seems broad enough to cover pending suits in any event.

 

[Killion]

Tim Danson is Moore's lead counsel in Ontario. At the time of the property conveyance there was an ongoing suit in Colorado as the cases between Ontario and Colorado overlapped. The Ontario suit was filed to protect against expiry of the limitation period while there was a pending appeal in the Colorado Court of Appeal of the lower court declining jurisdiction....However the Ontario statute seems broad enough to cover pending suits in any event.

Thanks. I'll just think of Cheers from now on and substitute Ted for Tim... Im rather Pejorative Slured that way, Marty Feldman complex..... anyhoo, I think the question that remains unanswered is when exactly did Big Bert transfer the bulk of his estate to his wife & kids, Ma & Pa Kettle?. My understanding of the timing is that it was pre-Ontario-filing so, Hello, Houston?, I think we may have a problem. If Moore wins any substantive order from the Superiors', and never mind the appeals that could take this thing into some serious over-time yes?, well, good luck collecting....

 

[Ciao]

Hopefully we can get some of our lawyers out of hibernation, but there are several issues here that I'd like to explore.

Jurisdiction

Colorado courts threw the case out citing it was out their jurisdiction. British Columbia has its own laws that limit the amount that could be paid out in damages. Tom Benjamin, blogger and labor expert (consultant to courts) had this to say at that time:

It's interesting that the claim of permanent brain damage didn't arise in this initial foray in the BC courts. Moore's education, as Tom pointed out, worked against him because it was thought he'd be able to work well beyond any hockey career he might have had (which arguably was never going to be substantial). That figure can be calculated if you take the league minimum with some reasonable raise and assume he has an average NHL career span. We're nowhere close to $30+ million if that's how you account for it. (Do agent fees get calculated in this, btw?)

So if there's anything new for me here, it's the new claim of permanent brain damage that prevents Moore from ever putting his Harvard degree to use. I'll add that comparables can probably be pulled for other Harvard grads with similar degrees, and I'm at least doubtful that they all would have multimillion dollar earnings, but that's another tangent.

More from Benjamin (Feb 2006):

I'm pulling Tom's stuff out because I think he's done a great job of framing this case from a legal perspective, and he has links to the original stories covering this since we go back to 2005.


Damages and How Canadian Courts Decide (and again, Why Ontario)


2008: http://canuckscorner.com/tombenjamin/2008/03/29/in-search-of-a-settlement/

And in the comments section:



Just as Tom can list out the probable path for a player of this type/age/trajectory, the same could be said for the claims of livelihood away from hockey. Since this is being brought before Canadian courts, what is the probable outcome when damage claims are seemingly multiples of times higher than actual loss of income that could be reasonably projected?

The principle in Ontario is that for the most part damages are merely compensatory, Fugu, meaning that the plaintiff will not usually receive a windfall of any kind in a judgment for damages.

I think the decision of the Supreme Court of Canada points out that it is pretty hard to estimate future earnings for the average young wage earner. However, I don't know whether Moore would fall into that category. His pro-hockey career would more than likely have been for a limited duration that is more easily estimated without future contingencies (both for and against) that would only take place decades away. The diminishment of his earning capacity due to cognitive impairments and the loss/reduction of the benefit of his Harvard degree is a different kettle of fish. All in all, Ontario courts are accustomed to seeing wildly inflated damages claims, with everyone knowing from the outset that the actual damages award will be substantially less than the amounts claimed.

Tim Danson is a pretty good lawyer (at the top of the heap), but I'd be surprised if Moore wins even half of what he's claimed.

I'd be even more surprised if the case doesn't settle.

Oh, and Bertuzzi's transfer of his real estate on the eve of the commencement of the Ontario action would almost certainly be set aside if it were necessary to pay a judgment debt. It really doesn't matter if the action were started or not. Bertuzzi had actual notice of Moore's claims, and that is more than enough.

 

[Killion]

I'd be even more surprised if the case doesn't settle.

Youve just gotta figure it will.... And thanks for the clarification on the issue of transference.

 

[Confucius]

Youve just gotta figure it will.... And thanks for the clarification on the issue of transference.

Nya Nya, told ya so, No charge