Newly Released Case Comprehensively Canvasses A Cornucopia Of Issues

Author:Ms Kate Southwell, Student-at-Law and Jennifer Whincup
Profession:Davis LLP

On January 21, 2013, Justice D. M. Brown of the Ontario Superior Court of Justice released a decision that is sure to become an invaluable resource for civil litigators in Ontario. In York University v Michael Markicevic, Justice Brown provides a detailed analysis of the legal principles of summary judgment, the interpretation of releases, Mareva injunctions, certificates of pending litigation, Anton Piller orders, and fraudulent conveyances.

This case involves allegations of fraud against Michael Markicevic, a former employee of York University. York University terminated Mr. Markicevic's employment without cause. As part of this termination, Mr. Markicevic received almost $700,000 and the parties signed a release that effectively barred York University from bringing any claims against Mr. Markicevic arising from Mr. Markicevic's employment that York University knew, or ought to have known, at the time of his termination. At that time, York University was arguably aware of only several thousand dollars' worth of losses from fraudulent invoices that were approved by Mr. Markicevic. It wasn't until more than a year later that York University discovered that more than $1.2 million was diverted from York University through a fraudulent invoicing scheme and that Mr. Markicevic had also benefitted from improvement work done at his home by York University employees.

There were several issues before Justice Brown, including whether the release barred York University from pursuing a fraud claim against Mr. Markicevic, whether property that Mr. Markicevic transferred to his wife after his termination was a fraudulent conveyance, and whether York University was entitled to seize Mr. Markicevic's computer and prevent the defendants from disposing of their assets pending a trial.

The defendants, which included Mr. Markicevic's wife and daughter, brought motions for summary judgment to resolve two issues: (1) that the release that Mr. Markicevic signed barred York University from commencing a claim in fraud against him; and (2) that a property transferred from Mr. Markicevic to his wife after his termination was not a fraudulent conveyance. Justice Brown dismissed the defendants' motions for summary judgment.

On the issue of the release, Justice Brown held that a genuine issue requiring a trial existed as to whether the release could bar any or all of York University's claims. At the heart of this holding was the uncertainty of York University's actual...

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