R. Samantha Chapman

The moving parties sought to quash the opposing parties’ attempt to revive and schedule a previously raised motion concerning an alleged breach of a Mareva injunction.

The earlier trial reasons and subsequent appellate decision left unresolved whether the injunction had been breached.

The court found that the trial judge had deferred the issue and that a later email from the trial judge declining to amend the judgment did not constitute a formal endorsement or order under the Rules of Civil Procedure.

Given the absence of a final adjudication and the lack of reasons, the issue remained open.

The court exercised its discretion to permit the matter to proceed so the alleged breach of the Mareva injunction could be determined.

Following the dismissal of a motion by the defendants to dissolve a Mareva injunction, the court addressed the issue of costs.

The plaintiffs sought costs of $22,170.43 inclusive of disbursements and HST, while the defendants argued the amount should be reduced to $15,000.

The court rejected the defendants’ criticisms of the time spent by plaintiffs’ counsel, noting the absence of comparative information about defence counsel hours and characterizing the challenge as unsupported.

Applying the factors in Rule 57.01 of the Rules of Civil Procedure, the court found that a costs award of $22,000 inclusive of disbursements and HST was appropriate.

The moving defendants were ordered to pay the amount within 30 days, failing which the receiver was authorized to pay the award and charge it to the receiver accounts.

The defendants moved to set aside earlier ex parte orders granting a Mareva injunction and appointing a receiver over corporate assets allegedly used to shield property from enforcement of a substantial fraud judgment.

They argued that changed circumstances following a partial appellate reduction of the judgment, the alleged inadequacy of the plaintiffs’ undertaking as to damages, delay in prosecuting the action, and the balance of convenience justified dissolving the orders.

The court held that although the Court of Appeal reduced and modified aspects of the original fraud judgment, the defendant remained liable for over $12 million and the underlying factual basis for asset preservation had not materially changed.

The court also rejected arguments concerning the undertaking as to damages and delay, noting the extensive appellate proceedings that reasonably delayed progress.

The Mareva injunction and receivership orders therefore remained justified to preserve assets pending trial.