SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: C-637-13
DATE: 2013-08-21

RE: Gordon Baxter and Karli Baxter - Plaintiff (Responding Party)

AND:

Kristopher Kraft - Defendant (Moving Party)

BEFORE: The Honourable Mr. Justice J. W. Sloan

COUNSEL: Theodore C. Dueck - Counsel for the Plaintiff (Responding Party)

Shannon K. Cole & Khiam Nong - Counsel for the Defendant (Moving Party)

HEARD: August 15, 2013

ENDORSEMENT

[1] This action arises out of a vicious assault by the defendant on the plaintiff Gordon Baxter.

[2] At the time of the assault the parties lived together in separate halves of a semi-detached home.

[3] As a result of the assault the defendant was charged criminally and was not allowed to be in the vicinity of the plaintiff which meant that he could not return to live in his home until some indeterminate time in the future.

[4] Given this circumstance the defendant listed his home for sale.

[5] The plaintiff, knowing that whatever damages he would recover from this lawsuit would not be covered by insurance, was fearful that the defendant was dissipating his assets.

[6] The plaintiff immediately petitioned the court on an ex-parte basis for a Mareva injunction and was successful.

[7] Unknown to the court at the time was that the defendant had put in an offer to purchase a new home at a different location in the city and therefore it could not be argued with the same force that he was dissipating his assets.

[8] As a result of the Mareva injunction which had the effect of precluding the defendant from selling the subject semi-detached home he was not in a position to waive the financing condition on his new purchase and therefore the new purchase could not be completed.

[9] The sale of the defendant's home is scheduled to close on August 29, 2013, and the plaintiff seeks to keep the Mareva injunction in place which would effectively tie up the net equity in the semi-detached home.

[10] The onus is on the plaintiff to persuade the court that the defendant is either removing his assets from the jurisdiction or dissipating them in a manner clearly distinct from his usual ordinary course of living.

[11] On the material before me the plaintiff has failed to demonstrate either of the above stated criteria.

[12] The defendant is gainfully employed with Canada post. His explanation for why he listed the semi-detached home for sale is logical and his attempt to purchase a new residence to live in could never be construed as dissipating his assets.

[13] While I certainly have sympathy for the plaintiff, the granting and maintaining of a Mareva injunction is an extraordinary remedy and on the facts before me it would be inappropriate to continue the Mareva injunction.

[14] Therefore, the Mareva injunction granted by Justice Gordon dated the 26th day of July 2013 and amended by Justice Nightingale on the 2nd day of August 2013 is hereby set aside.

[15] In the circumstances of this case I make no order as to costs.

J. W. Sloan J.

Date: August 21, 2013