Nowak v. Fox

Nowak v. Fox

Appeal allowed because the evidence was not capable of supporting the trial judge's finding of fraud; inferences relied upon were not reasonably supported, and absent direct evidence that the scheme was fraudulent at the time of solicitation the finding was a palpable and overriding error.

Source-derived case information.

Citation
2012 BCSC 1027
Parties
Appellant (defendant): Nathan Nowak; Respondent (claimant): Bradley Fox; Respondent (claimant): Adam Folk
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
11 July 2012
Procedural Posture
Civil Appeal / Appeal From Provincial Court, Civil Division Judgment
Outcome
Appeal allowed; claim dismissed
Legal Topics
Fraudulent Misrepresentation, Rescission Agreement, Standard of Proof (balance of Probabilities), Inferences From Subsequent Conduct, Accredited Investor Rules, Cease Trade Order
Source Language
english
Fraud Securities Civil Procedure Appellate Review Fraudulent Misrepresentation Rescission Agreement Standard of Proof (balance of Probabilities) Inferences From Subsequent Conduct +2 more

Source-derived case record

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Parties

Nathan Nowak

Appellant (defendant)

Bradley Fox

Respondent (claimant)

Adam Folk

Respondent (claimant)

Procedural Posture

Civil Appeal / Appeal From Provincial Court, Civil Division Judgment

Legal Issues

  1. 1 Whether appellant knew the investment scheme was fraudulent when soliciting investments in 2007
  2. 2 Whether the trial judge's factual findings were supported by evidence or amounted to palpable and overriding error
  3. 3 Whether downstream conduct in 2008-2009 could be reasonably used to infer state of mind in 2007

Ratio Decidendi

Appeal allowed because the evidence was not capable of supporting the trial judge's finding of fraud; inferences relied upon were not reasonably supported, and absent direct evidence that the scheme was fraudulent at the time of solicitation the finding was a palpable and overriding error.

Court Disposition

Appeal allowed; claim dismissed

Orders

  • Appeal allowed and claim dismissed
  • Monies paid into court by the appellant shall be paid out to his solicitor, in trust