Michael Nowina

Michael Nowina’s litigation practice focuses on a broad range of commercial disputes including advising on the recovery from fraudulent investment schemes, mortgage fraud and credit fraud. Michael’s fraud-related and investigations experience includes representing victims of a Canada-wide investment fraud and ultimately securing recovery of a majority of the proceeds from the fraud, advising numerous creditors in proceedings commenced to recover fraudulent conveyances and preferential payments in multi-jurisdictional litigation, and representing financial institutions in identity fraud cases and in proceedings to recover funds from fraudulent borrowers. Michael also frequently advises clients on insolvency matters involving fraud.

Firm/Organization: Baker McKenzie

Blogs: Canadian Fraud Law, Canadian Labour and Employment Law

Latest Articles

Canadian Fraud Law

Bank allowed to allege fraud in second ‘Kick at the Can’

By Ben Sakamoto & Michael Nowina on March 29, 2019

When a plaintiff obtains a judgment from the court, that party is normally precluded from starting another lawsuit seeking the same judgment debt from the defendant. However, in Royal Bank of Canada v Kim, 2019 ONSC 798, Justice Broad of the Ontario Superior Court made an exception because the bank had discovered evidence of fraud after it obtained summary judgment against the defendant. The bank sought to pursue a second action for a judgment…

Canadian Labour and Employment Law

Ready to Bargain with the Union? Court-Appointed Receivers at Heightened Risk of Successor Employer Determination

By Gillian Maharaj, Andrew Shaw & Michael Nowina on March 21, 2019

Successor rights are a long standing fixture in Ontario’s labour relations legislation. Generally speaking, under s. 69 of the Labour Relations Act (LRA), the purchaser of a business effectively steps into the seller’s shoes for the purpose of labour relations and becomes bound by any collective agreement that the seller is party to, unless the Ontario Labour Relations Board (OLRB) declares otherwise. The same principle applies where the business is leased, transferred or otherwise disposed…

Canadian Fraud Law

Same Facts, Different Badges – Sham Trusts and Fraudulent Conveyances

By Ben Sakamoto & Michael Nowina on March 1, 2019

In McGoey (Re), 2019 ONSC 80, Justice Penny of the Ontario Superior Court of Justice found trusts over two properties held by a bankrupt were void as shams. In his decision, Justice Penny noted that had he not found the trusts to be sham trusts, he would still have set them aside as fraudulent conveyances, making us ask: “what is the difference between a sham trust and a fraudulent conveyance?” A sham trust occurs…

Canadian Labour and Employment Law

Restructuring? Proceed Carefully with Your KERPs and KEIPs!

By Gillian Maharaj & Michael Nowina on February 14, 2019

KERPs (Key Employee Retention Plans) and KEIPs (Key Employee Incentive Plans), otherwise referred to as “pay to stay” compensation plans, are commonly offered by employers to incent key employees to remain with the company during an insolvency restructuring proceeding when so-called “key employees” may be tempted to find more stable employment elsewhere. However, courts will carefully scrutinize these plans because there are multiple competing interests as well as the overall policy objective of maximizing recoveries…

Canadian Fraud Law

Consent judgment survives bankruptcy

By Ben Sakamoto & Michael Nowina on December 7, 2018

In Water Matrix Inc. v Carnevale, Justice Sanfilippo found that a consent judgment may survive bankruptcy if it arises from a claim that is based in fraud. This allowed a company that was defrauded by a former employee to continue to enforce the company’s judgment after bankruptcy.…

Canadian Fraud Law

Bank’s Duty of Care to victims of Ponzi Scheme

By Michael Nowina on September 21, 2018

In 1169822 Ontario Ltd. v. Toronto-Dominion Bank 2018 ONSC 1631 Justice Dunphy of the Ontario Superior Court decided a case where investors in a failed Ponzi scheme sought recovery from the financial institution used by the fraudster to deposit funds. The key takeaways from the case are: it confirms that a financial institution can be liable where it has actual knowledge (willful blindness or recklessness will also suffice) that a customer is using the accounts at the bank to committed…

Canadian Fraud Law

Fraudulent Conveyance Claim flounders on procedural shores

By Michael Nowina & Glenn Gibson on June 28, 2018

In Esfahani v. Samimi, 2018 ONCA 516 the Ontario Court of Appeal confirmed that a plaintiff pursuing a fraudulent conveyance or preference must recognize that the legal landscapes changes with a bankruptcy and that the effects of a bankruptcy filing cannot be ignored. The unfortunate outcome for the plaintiff, Djalaleddin Esfahani (“Esfahani“), was that an otherwise valid claim to set aside a fraudulent conveyance was dismissed because it was brought outside of the bankruptcy process.…

Canadian Fraud Law

Double Jeopardy Argument fails for the Magic Lady

By Michael Nowina & Glenn Gibson on January 23, 2018

Dubbed the ‘Magic Lady’ by the media for perpetrating a $100 million Ponzi scheme, Rashida Samji faced administrative proceeding brought by the BC Securities Commission (“Commission”) as well as criminal charges. The Commission found in 2014 that she perpetrated a fraud, imposing a disgorgement order of almost $11 million and a $33 million administrative monetary penalty (“AMP”) to serve as “a specific deterrent to [Samji] and as a general deterrent to others who would engage …

Canadian Fraud Law

Mareva Injunctions – Ontario Court of Appeal Signals a More Flexible Test for Granting Worldwide Mareva Injunctions

By Sarah Petersen & Michael Nowina on June 12, 2017

The decision in SFC Litigation Trust (Trustee of) v. Chan, 2017 ONSC 1815 represents a step toward a more flexible approach when our courts are asked to consider whether a Mareva injunction should be granted. In this case, the appellant, Mr. Chan, the former Chief Executive Officer of Sino-Forest Corporation (“SFC”), appealed an order confirming a Worldwide Mareva injunction that had been granted against him, ex parte. SFC was a Canadian corporation and had an office in…

Canadian Fraud Law

Court rules “culpability is not a finite” in charitable donation scheme

By Michael Nowina on November 16, 2016

According to Statistics Canada, 84% of Canadians aged 15 and over, or just under 24 million people, reported making at least one financial donation to a charitable or non-profit organization when the last survey on gift giving was conducted in 2010. With over $10 billion in yearly donations, it is unsurprising that there are those that seek to take advantage of Canadians’ spirit of giving. In a recent sentencing decision, R v Raza, 2016 BCSC …

Michael Nowina

Bank allowed to allege fraud in second ‘Kick at the Can’

Ready to Bargain with the Union? Court-Appointed Receivers at Heightened Risk of Successor Employer Determination

Same Facts, Different Badges – Sham Trusts and Fraudulent Conveyances

Restructuring? Proceed Carefully with Your KERPs and KEIPs!

Consent judgment survives bankruptcy

Bank’s Duty of Care to victims of Ponzi Scheme

Fraudulent Conveyance Claim flounders on procedural shores

Double Jeopardy Argument fails for the Magic Lady

Mareva Injunctions – Ontario Court of Appeal Signals a More Flexible Test for Granting Worldwide Mareva Injunctions

Court rules “culpability is not a finite” in charitable donation scheme

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