Biography
Nils Preshaw is an experienced litigator who spent the first twelve years of his career as a Crown Prosecutor. During those years he had a heavy trial schedule that included general criminal, conspiracy, drug trafficking and large wiretap project trials.
Nils Preshaw has conducted numerous provincial and superior court trials in both BC and Alberta as well as appeals before the Courts of Appeal in both provinces.
During his time as a Crown Prosecutor Nils Preshaw worked on matters involving CSIS, the RCMP, CBSA, CRA, IRS and Interpol. In 2008 Nils began focusing on complex fraud litigation.
In 2014, Nils Preshaw started his own practice representing clients throughout Western Canada in diverse trial matters ranging from charges of murder and dangerous offender designations to complex civil fraud. While out on his own Nils continued to represent the Crown as an agent in both complex tax prosecutions and the defense of RCMP officers in civil litigation.
In 2018, Nils joined Kornfeld’s litigation department where he continues trial work with a particular focus on cases involving large commercial fraud.
Nils has taught prospective law students an LSAT prep course, lectured to CRA Investigators about Cross Examination; to commercial fraud specialists about Corporate Witnesses and been a guest lecturer for the Law Society of BC’s Bar Admission Course.
Nils is an avid cyclist, rock climber and skier.
Education
- Faculty of Law, University of Calgary, LLB
- University of Calgary, BA, Political Science and English Literature
Bar Admissions
- British Columbia, 2006
- Alberta, 2002
Service
- Tribunal member for the Canadian Investment Regulatory Organization (Ciro), chairing disciplinary hearings of registered persons in the mutual fund industry.
- Volunteer with the Advisory Committee to the Judicial Council of BC vetting applicants for Provincial Court Judge positions from 2020 to 2023.
- Recent Contributor to the 2023 Professional Legal Training Course practice materials on Professionalism: Ethics.
- Volunteer lawyer on monthly Access Pro-Bono telephone clinics.
Mila Pavlakovic, Designated Paralegal
T 604.331.8347
E mpavlakovic@kornfeldllp.com
Notable Outcomes
Our clients sought to rescind a $28,800,000 contract for the sale of a large redevelopment site in the heart of a Vancouver suburb. The case is exceptional as rescission was sought, and ultimately ordered by the Court, based on a rarely used legal doctrine of ex turpi causa non oritur actio (“from a dishonourable cause an action does not arise”).
The Kornfeld team of Dan Parlow, Shane Coblin and Nils Preshaw took the position that the sale was unenforceable due to various alleged wrongdoings by the purchaser, including an alleged conspiracy with the real estate agent to suppress zoning information from the vendor, as well as numerous alleged frauds perpetrated on potential lenders and joint venture partners. The trial included 78 court days, making it the second longest commercial trial in the province during that time.
The majority of the evidence of wrongdoing perpetrated by the purchaser on his own lenders, joint venture partners, appraisers and others was entirely outside the knowledge of our clients and had to be extracted from the reluctant purchaser using a wide variety of methods over years of pre-trial proceedings. The methods used included a successful but rarely-used motion to compel documents by the purchaser’s own lawyers on the ground that he had used his lawyers as unwitting pawns perpetrating frauds.
The Youyi Group Holdings (Canada) Ltd. v. Brentwood Lanes Canada Ltd. trial was exceptional in a number of ways. The court found several witnesses to have engaged in a “festival of deceit”. The purchaser’s realtor, when confronted with unanticipated video evidence, was found to have confessed to giving false evidence on two occasions. Both the purchaser and his realtor were found to have concocted an elaborate false story to cover up the true history of a false contract they had come up with, both falsely testifying at trial that the false contract reflected a negotiation which never took place.
Ultimately, the Court ruled the contract to be unenforceable because it was conceived and used by the purchaser for illegal purposes. Our client was successful in retaining the property of which the agreed value at trial had increased to $76,000,000, or nearly $50,000,000 over the purchase price.
Dan, Shane and Nils were supported by the legal research and drafting skills of Kornfeld lawyers Susan Smith and Devin Lucas.
The Plaintiff purchaser appealed the judgment to the British Columbia Court of Appeal. On January 21, 2021, the Supreme Court of Canada refused leave to appeal.
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The British Columbia Court of Appeal agreed with the judge at trial that a $28.8 million contract of purchase and sale should not be enforced, being tainted by the illegality of the purchasers’ fraudulent conduct.
The Court considered the following conclusions at trial which remained unchallenged on appeal:
- That a “rent reduction schedule” and a companion “lease addendum” had been prepared as separate documents to allow the purchaser to conceal them and thereby artificially inflate the revenue for the property in the minds of lenders; and that these documents had, in fact, been deliberately withheld from lenders for this purpose;
- That the purchaser had, for fraudulent purposes, provided a false purchase and sale agreement, referencing a false deposit and a purchase price falsely inflated by $10 million, to a potential financier as well as a developer;
- That the realtor, acting on the purchaser’s instructions, proposed what the trial judge characterized as a False Deposit Scheme which was intended to mislead lenders into believing that he had contributed $8 million more in equity towards the purchase of the Brentwood property than he in fact had. The scheme “was intended to work as follows: the Purchasers would provide a $4 million payment to the Vendors; the Vendors would provide a “receipt’ for $4 million and then return the $4 million amount to the Purchasers; using the funds they had just received back, the Purchasers would pay the Vendors another $4 million in exchange for another $4 million receipt; the Vendors would again return the $4 million back to the Purchasers; and, after the Purchasers obtained financing to purchase the Brentwood property by relying in part on the fictitious additional $8 million in equity, the Vendor would be provided with $8 million in mortgage security over other properties…” The vendor “refused to cooperate with the False Deposit Scheme”.
After considering the law of ex turpi causa,, the Court of Appeal found it unnecessary to look beyond the false “rent reduction schedule” and “lease addendum”. The case fell into the class of contract that “may be unenforceable in circumstances where it is not per se illegal, but was entered into at least in part, with the object of committing an illegal act. Enforcement of such a contract may be so tainted with illegality that a court is entitled to refuse to enforce it.”
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