SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

Court File No: 391/07 Date: 2007-09-28

Re: JACK SINGER Plaintiff (Responding Party)

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1109537 ONTARIO INC. and HOWARD J. CAMPBELL Defendants (Moving Party)

Before: The Honourable Mr. Justice Arthur M. Gans

Counsel: Aaron A. Blumenfeld, for the Plaintiff (Responding Party) Donald G. Kidd, for the Defendants (Moving Party)

Heard at Toronto: September 26, 2007

GANS J:

ENDORSEMENT

[1] This is an Application for leave to appeal an order of Madam Justice Allen made this past June, in which she determined that an interim Mareva Injunction ordered by Moore J. at the end of March would continue to trial or other final disposition of an action between the plaintiff, Jack Singer (“Singer”), and the defendant numbered company (“Sesco”), and its President and major shareholder, Howard Campbell (“Campbell”). Allen J. apparently acceded to Singer’s preliminary argument, in but the briefest of an endorsement, that because there had been no additional evidence or matters beyond that which were presented to Moore J. three months before, the principle of abuse of process applied to the motion then before her. Regrettably, her conclusory remarks were unsupported by analysis or even reference to the S.C.C. decision in Toronto v. C.U.P.E. Local 93 (2003), 2003 SCC 63, 232 D.L.R. (4th) 385 and in particular the comments found at paragraphs 35-52 of that judgment.

[2] As best as I understand the situation, when the matter was argued before the Motions Judge counsel focused only on the preliminary issue of abuse of process, the defendants taking the position that the principle did not apply to interlocutory proceedings, in general, and the continuation of Mareva injunctions, in particular, and the issue of whether or not the injunction should continue to trial should be argued on the merits. Although she did not specifically say so, I can only assume from her conclusion, that the Motions Judge rejected the submissions of counsel for the defendant and determined that the principle of law to which she was directed applied equally to interlocutory as it did to final orders. (See the decision of E. MacDonald J. in Ward v. Dana G. Colson, [1994] O.J. No. 533 at paragraphs 12-16.)

[3] Furthermore, while there was no change in the record before the Motions Judge by way of additional affidavits and cross-examinations, there was also no suggestion or argument advanced before her that Moore J., in a lengthy endorsement released at the end of March, may have proceeded on a wrong footing when discussing the onus of proof applicable to the motion before him, which was reduced to a motion for an interim Mareva injunction then on what ultimately turned out to be a complete record on affidavits filed by both sides. Put otherwise, when one has regard to paragraphs 27-30 of Moore J.’s endorsement, it was at least arguable that he had imposed some sort of obligation on the defendants to satisfy him that they would not dissipate assets sufficient to satisfy any judgment Singer might obtain if successful in his action even on an interim basis pending the anticipated filing of additional material (See the decision of the Divisional Court in United States of America v. Yemec, [2005] 75 O.R.(3d) 52 at paragraphs 10 and 22).

[4] I must confess that I was at first troubled by the decision of Motions Judge in. which, as best as I can determine, she seemed to have adopted not only the applicability of the principle of abuse of process argued by Singer, but as well, the findings of Moore J., if not those of the ex parte Judge, Campbell J., whose order was made at first instance, and by definition, without any response material. I am, however, persuaded, now that I have reviewed the jurisprudence to which I was directed, that her decision on the applicability of the principle of abuse of process is not in conflict with other decisions of this court nor, indeed, of the law discussed in decisions of the Court of Appeal and the S.C.C. or that there is any reason to doubt the correctness of the order, as both those concepts are described in Rule 62.02 (4) (a) and (b) and the jurisprudence decided under each sub-rule. The fact that she did not provide any analysis, or sufficient analysis, does not constitute grounds of sufficient importance to have this matter considered by a full panel of the Divisional Court, even if I were inclined to refer a question arising out of the underlying decision of Moore J. on the applicable onus as an adjunct thereto. The law in that regard, as discussed in Yemec, is well settled.

[5] Hence, I am not persuaded that the constituent pre-conditions described by the above Rule have been met in the circumstances of the somewhat strange history of this action, which without limitation includes, the granting of an interim ex parte injunction a year into the suit where a claim for injunctive relief was not sought in the original statement of claim but was made by way of amendment a few months after the attendance before Moore J. The further issue of the undertaking as to damages was in the final analysis of no moment because a form of undertaking was contained in Singer’s affidavit although not appearing in the preamble to each of the operative orders.

[6] The motion for leave to appeal will therefore be dismissed, with costs payable by the Defendants to the Plaintiff fixed at $7000, inclusive of disbursements plus GST. I presume the Defendants by operation of the previous orders and notwithstanding the injunction, will have the means to discharge this costs award. I may be spoken to in the event that the above assumption is in error.

Gans J.

Released: September 28, 2007