Udham Singh Jajj v. Balwant Singh Jajj, 2016 ONSC 4568

DIVISIONAL COURT FILE NO.: 016/16

DATE: 2016-07-19

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: UDHAM SINGH JAJJ, GURMIT KAUR JAJJ, JAJJ INVESTMENT HOLDINGS LTD., AND 100337 CANADA LIMITED, Applicants/Responding Parties

AND:

balwant singh jajj, jaswinder kaur jajj, taljeet kaur dosanjh, gurpreet singh jajj, amarjit kaur jajj, lavendar kaur jajj, and lakhveer singh jajj, Respondents/Moving Parties

BEFORE: Stewart J.

COUNSEL: Gregory M. Sidlofsky, for the Applicants/Responding Parties

Christopher Wirth, for the Respondents/Moving Parties

HEARD at Toronto: In Writing

ENDORSEMENT

Nature of the Motion

[1] Balwant Singh Jajj (“Balwant”) seeks leave to appeal to the Divisional Court from the decision of Mr. Justice Penny dated December 17, 2015. Justice Penny dismissed Balwant’s motion to vary the Mareva injunction granted against him by Spence, J. on January 29, 2014 and also dismissed Balwant’s motion to compel the Applicants to fund his defence to a contempt motion brought against him by them.

[2] The Applicants (Responding Parties on this motion for leave to appeal) take the position that the requisite test for granting leave has not been met, and leave therefore should be denied.

Test for Leave

[3] The test for granting leave to appeal under Rule 62.02(4) is well-settled. It is recognized that leave should not be easily granted and the test to be met is a very strict one. There are two possible branches upon which leave may be granted. Both branches involve a two-part test and, in each case, both aspects of the two-part test must be met before leave may be granted.

[4] Under Rule 62.02(4) (a), the moving party must establish that there is a conflicting decision of another judge or court in Ontario or elsewhere (but not a lower level court) and that it is, in the opinion of the judge hearing the motion, “desirable that leave to appeal be granted. “ A “conflicting decision” must be with respect to a matter of principle, not merely a situation in which a different result was reached in respect of particular facts: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 7 O.R. (3d) 542 (Div. Ct.)

[5] Under Rule 62.02(4) (b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co,, [2005] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 8 O.R. (3d) 282 (Gen. Div.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.).

[6] Balwant seeks leave pursuant to Rule 62.02(4)(b) only.

Analysis

[7] As found by Justice Spence when he originally granted the Mareva injunction, there is a strong prima facie case that Balwant defrauded his parents by taking an ownership interest in the corporate applicants without his parents’ knowledge or authorization and by diverting hundreds of thousands of dollars to himself which he then transferred to India.

[8] As part of his January 29, 2014 order, Spence, J. ordered Balwant to provide a sworn statement describing the nature, value and location of his assets worldwide and to submit to examination on that subject.

[9] At his examination, Balwant undertook to provide any requested authorization to permit the Applicants to obtain further information concerning Balwant’s assets in India. However, Balwant later refused to sign the authorization provided, or to propose an acceptable alternative form of authorization.

[10] The evidence before Penny, J. demonstrates that Balwant has repeatedly failed to disclose what he has done with the diverted money in India and that he has breached the court order and his various undertakings requiring him to provide such disclosure.

[11] As a consequence, the Applicants proceeded with a motion seeking an order finding Balwant in contempt of the order of Spence, J.

[12] Penny, J. observed in his reasons for the decisions which are the subject matter of this motion for leave to appeal that Balwant has provided inadequate or no disclosure of funds transferred from joint family accounts in Canada to accounts in his own name in Canada and then on to accounts in his own name in India.

[13] Reviewing the limited answers provided by Balwant on examination and the inadequate or lack of disclosure by him, Penny, J. stated that it was “clear to me from the evidence that [Balwant] has not taken his obligations under the Mareva seriously and has not taken his disclosure obligations seriously either”.

[14] Penny, J. found that Balwant’s failure to disclose his assets as he has been ordered to do effectively makes it impossible for him to meet the test for varying the Mareva injunction.

[15] To the extent that it might be argued that the Mareva injunction ought to be varied to permit Balwant to have access to RRSP funds for defence costs in connection with the contempt motion, Penny, J. further found that Balwant had not established on the evidence that he has no other assets available to pay his expenses other than those frozen by the injunction (see: CIBC v. Credit Valley Institute of Business and Technology, 2003 Carswell Ont 35 (S.C.J.)). Penny, J. therefore refused that part of the Mareva injunction to be lifted.

[16] Similarly, Penny, J. found that Balwant’s failure to explain what had become of the funds transferred by him in his case disentitles him from claiming a need for advance funding from the Applicants.

[17] There was ample evidence before Penny, J. to justify the conclusions he arrived at. No reasonably arguable error of law has been established.

[18] In my view, the test under Rule 62.02(4)(b) has not been met. There is no reason to doubt the correctness of the orders made. Further, the moving party has not shown that any matter of any general or public importance has been raised.

Conclusion

[19] For these reasons, leave to appeal is denied.

Costs

[20] I have considered the costs submissions delivered in writing by the parties. In my view, the successful Applicants/Responding Parties are entitled to their costs of this motion for leave which I hereby fix at $5000.00, inclusive of all disbursements and applicable taxes.

Stewart J.

Date: June 19, 2016