Court of Appeal for Ontario

Date: 2018-01-16 Docket: C63884

Judges: Feldman, Pepall and Huscroft JJ.A.

Between

Trade Capital Finance Corp. Plaintiff (Appellant)

and

Peter Cook also known as Peter William Cook, Marc D'Aoust also known as Jean Marc D'Aoust, Thomas Barker also known as Thomas Richard Barker (personally and carrying on business as LC Exchange, Global Medical and Greenlink Canada Group), Rocky Racca, Bruno Didiomede also known as Bruno Diaiomede, Alan Keery also known as Alan John Keery, Chris Bennett Jr. also known as Chris Bennett also known as Christopher Bennett (personally and carrying on business as CJR Consulting), Todd Cadenhead, Dayawansa Wickramasinghe, Bonny Lokuge also known as Don Bonny Lokuge, Virtucall Inc., Virtucall International LLC, Debt Resolve Mortgage Funding Solutions Inc. carrying on business as Debtresolve Inc., The Cash House Inc., 1160376 Ontario Limited operating as The Cash House, 2242116 Ontario Inc. carrying on business as Superior Medical Services Inc. and Superior Medical Services, Carlo De Maria also known as Carlo Vince De Maria also known as Carlo Vincent De Maria also known as Carlo Vincenzo De Maria, Matteo Pennacchio, Frank Zito also known as Francesco Zito, Simone Sladkowski, Jobec Trade Finance Inc., 1461350 Ontario Inc., 2299430 Ontario Inc., WF Canada Ltd., Jobec Investments RT Ltd., Green Link Canada Inc., 2339989 Ontario Inc., 2252364 Ontario Inc., 2224754 Ontario Ltd., 6980023 Canada Inc. operating as Living Benefits and Millwalk Enterprises Inc., Oak Hills Water Durham Inc., Joshua Cook, Elizabeth Cook, Rebecca Cook, Mark Pintucci, Marco Santonato also known as Marc Santonato and New Era Resolutions & Consulting Inc.

Defendants

Counsel

Peter Carey, for the appellant

Brendan Wong, for the respondents

Heard and Released

Heard and released orally: January 10, 2018

On appeal from: the order of Justice Michael Emery of the Superior Court of Justice, dated May 8, 2017.

Reasons for Decision

[1] The appellant's position is that the motion judge erred in varying the Mareva injunction that had been granted to Trade Capital against Cash House to allow Maple Trust to seize the funds in account number 0066701 ("701") in the name of Cash House, under a properly issued writ of seizure and sale in the amount of $120,396.90 plus post-judgment interest.

[2] In oral argument the appellant asserted that the real issue before the motion judge and on appeal was whether Maple Trust should be entitled to execute against funds in the 701 account of Cash House when those funds may be shown at some point to be funds stolen from Trade Capital, which therefore never belonged to Cash House. He asserted that a temporary stay should have been granted to allow Trade Capital to continue to try to trace its stolen funds into Cash House's 701 account.

[3] We are not able to accede to this submission. Even if the appellant could demonstrate that there was a serious issue to be tried within a reasonable amount of time regarding the tracing issue, in our view the balance of convenience favours the respondent, Maple Trust. It has acted in good faith in obtaining its judgment against Cash House and pursuing execution. It filed its writ on October 29, 2015. If it had to wait for an indefinite period of time while the appellant pursued its tracing remedy, the value of its judgment could be subject to significant dilution, for example, if other judgment creditors were to emerge.

[4] As the motion judge found, the appellant's Mareva injunction gives it no proprietary interest in the funds in 701. It has been unable to date to prove or establish its claim in respect to account number 701. There is no basis for the third party, Maple Trust, to suffer prejudice as a result.

[5] The appeal is therefore dismissed, with costs to the respondent fixed in the amount of $15,000, inclusive of disbursements and HST.

"K. Feldman J.A."

"S.E. Pepall J.A."

"Grant Huscroft J.A."