LINDAY COURT FILE NO.: CV-18-000015

DATE: 20201105

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: C.A.O., Plaintiff

AND:

Royce Galon Williamson, Christine Williamson and Louise Norma Smith, Defendants

BEFORE: Justice M.L. Edwards

HEARD: Ex Parte

ENDORSEMENT

[1] The Plaintiff in this case seeks an interim interlocutory order in the form of a Mareva injunction to restrain the Defendant Royce Galon Williamson (“Williamson”), from directly or indirectly removing, dissipating, encumbering, or disposing of his assets, and in particular an RRSP which is valued in the approximate amount of $100,000.

[2] On October 29, 2020, I granted the Order sought with written reasons to follow. These are my reasons.

[3] On June 30, 2020, Salmers J. granted judgment in favour of the Plaintiff. The claim against Williamson arose out of sexual assaults perpetrated by Williamson against the Plaintiff while she was a student in high school. Williamson was her music teacher. As a result of the judgment granted by Salmers J., the Plaintiff is entitled to recover general and aggravated damages in the amount of $300,000 jointly and severally as against Williamson and the Defendant Trillium Lakelands District School Board (“the School Board”); punitive damages in the amount of $100,000 as against Williamson alone; damages in the amount of $200,000 for loss of competitive advantage, again payable jointly and severally by Williamson and the School Board; approximately $37,000 for future care and incidental expenses payable jointly and severally by Williamson and the School Board; and approximately $4,000 for past care and expenses payable jointly by Williamson and the School Board. In addition to these amounts, the Plaintiff will be entitled to costs of the trial, a trial which took place in the absence of Williamson as a result of his failure to attend court.

[4] At the heart of the Plaintiff’s motion seeking the Mareva injunction, is correspondence from counsel for Williamson directed to Plaintiff’s counsel. On October 27, 2020, counsel for Williamson wrote a letter to counsel for the Plaintiff which amongst other things states:

…As I indicated to you in our verbal conversation, Mr. Williamson is prepared to offer $50,000 in total satisfaction of the claim of your client.

If this is not acceptable, as I explained to you on the phone, he intends to break the RRSP and simply give away the money to a charity or to the local hospital.

Accordingly, I think your client should get realistic and accept the offer of $50,000 in final settlement…I must have your answer no later than Thursday October 29, 2020 by 5:00 p.m., otherwise my client intends to break the RRSP investment, pay the tax attributable, and donate the funds to a charity.

[5] There is nothing to suggest that the aforesaid correspondence from counsel for Williamson was written other than with the instructions from Williamson. In the event Williamson was allowed to proceed with the threat implicit in the aforesaid correspondence, it is beyond controversy that Williamson would have collapsed his RRSP and placed those funds beyond the reach of the Plaintiff and the court.

[6] The basis upon which this court may grant a Mareva injunction are well known and set forth in the decision of the English Court of Appeal in Third Chandris Shipping Corp. v. Unimarine S.A., [1979] Q.B. 645. The requirements to obtain a Mareva injunction (which have been adopted in numerous decisions of this court) can be summarized as follows:

a) The Plaintiff shall make full and frank disclosure of all matters in the Plaintiff’s knowledge which are material to the judge’s decision;

b) The Plaintiff shall provide particulars of her claim against the Defendant stating the basis for the claim and the amount thereof, as well as stating any points made against it by the Defendant;

c) The Plaintiff shall give some grounds for believing that there is a risk of the assets being removed before the judgment or a ward is satisfied;

d) The Plaintiff must give an undertaking in damages in case she fails in her claim or the injunction turns out to be unjustified; and

e) The Plaintiff shall demonstrate some grounds for her belief that the Defendant has assets in the jurisdiction.

[7] Applying the requirements set forth above, I am satisfied that given the Reasons for Decision of Salmers J., together with the other material provided on this motion, that the Plaintiff has made full and frank disclosure of all matters within her knowledge. There does not appear to be any basis upon which there would be any defence to these claims given the Reasons of Salmers J.

[8] As for the Plaintiff’s reasonable belief of a risk of assets being removed before the satisfaction of the judgment, the letter from counsel for Williams – the details of which are set forth above, in my view more than amply demonstrates that there is a risk that Williamson would dissipate his assets and in particular, the RRSP referenced in his counsel’s letter. As for the Plaintiff demonstrating grounds for her belief that the Defendant has assets in the jurisdiction, this court need look no further than the correspondence from counsel, again, the details of which are set forth above.

[9] As for the requirement that the Plaintiff give an undertaking in damages, this is a requirement set forth in Rule 40.03 of the Rules of Civil Procedure. The rule states:

On a motion for an interlocutory injunction or mandatory order, the moving party shall, unless the court orders otherwise, undertake to abide by any order concerning damages that the court may make… [Emphasis added.]

[10] In Business Development Bank of Canada v. Aventura II Properties Inc., 2016 ONCA 300, the Court of Appeal determined on the unique set of facts before it that the motion judge was entitled to grant a Mareva order without requiring an undertaking from a court-appointed receiver.

[11] In my view, while it is generally understood that an undertaking in damages is a prerequisite to the granting of an interlocutory injunction, and in particular a Mareva injunction, on the particular facts of this case; specifically the unchallenged findings of fact made by Salmers J. and that the Judgment of Salmers J. has not been appealed by Williamson, it would be grossly unfair to require a victim of sexual assault to provide an undertaking in damages where that Plaintiff has been entirely successful with her claim for damages. On the particular facts of this case, I will exercise the discretion contemplated by Rule 40.03 and I will not require an undertaking in damages. For these reasons, I have granted the Mareva injunction in the form requested by the Plaintiff, with costs that I have fixed in the amount of $1,000.

Justice M.L. Edwards

Date: November 5, 2020