West Face Capital Inc., 2024 ONSC 2430

COURT FILE NO.: CV-17-587463-00CL

DATE: 20240429

SUPERIOR COURT OF JUSTICE – ONTARIO

(COMMERCIAL LIST)

RE: The Catalyst Capital Group Inc. and Callidus Capital Corporation, Plaintiffs

AND: West Face Capital Inc., Gregory Boland, M5V Advisors Inc. cob Anson Group Canada, Admiralty Advisors LLC, Frigate Ventures LP, Anson Investments LP, Anson Capital LP, Anson Investments Master Fund LP, AIMF GP, Anson Catalyst Master Fund LP, Act GP, Moez Kassam, Adam Spears, Sunny Puri, Clarityspring Inc., Nathan Anderson, Bruce Langstaff, Rob Copeland, Kevin Baumann, Jeffrey McFarlane, Darryl Levitt, Richard Molyneux and John Does #1-10, Defendants

AND

BETWEEN: West Face Capital Inc. and Gregory Boland, Plaintiffs by Counterclaim

AND: The Catalyst Capital Group Inc., Callidus Capital Corporation, Newton Glaman, Gabriel De Alba, James Riley, Virginia Jamieson, Emmanuel Rosen, B.C. Strategy Ltd. D/B/A Black Cube, B.C. Strategy UK Ltd. D/B/A Black Cube and Invop Ltd. D/B/A PSY Group, Defendants by Counterclaim

AND

BETWEEN: Bruce Langstaff, Plaintiff by Counterclaim

AND: The Catalyst Capital Group Inc. and Callidus Capital Corporation, Defendants by Counterclaim

BEFORE: W.D. Black J.

COUNSEL: Matthew Milne-Smith, Maya Churilov and Andrew Carlson, Counsel for West Face Capital Inc, and Gregory Boland Devin Jaraig, Counsel for B. Langstaff Richard G. Dearden, Matthew Karabus, Marco Romeo, Tom Collins and Alexandra Psellas, Counsel for Defendants, The Catalyst Capital Group Inc., Callidus Capital Cororation, N. Glassman, G. DeAlba and J. Riley Cameron Rempel and Simon Bieber, Counsel for the Defendants, B.C. Strategy Ltd. and B.C. Strategy UK Ltd. (Black Cube)

HEARD: April 12, 2024

ENDORSEMENT

Overview

[1] The defendants, plaintiffs by counterclaim, West Face Capital Inc. (“West Face”), Gregory Boland (from time to time I will refer to West Face and Mr. Boland together as the “West Face Parties”), and the defendant, plaintiff by counterclaim Bruce Langstaff, move separately but in parallel for a Mareva-type injunction to prevent the plaintiffs, defendants by counterclaim The Catalyst Capital Group Inc. (“Catalyst”), and its principal Newton Glassman from removing certain of their assets from Ontario outside the ordinary course of business. Mr. Langstaff also seeks that order, in addition to seeking it from Catalyst and Mr. Glassman, as against Callidus Capital Corporation (“Callidus”) (from time to time I will refer to the West Face Parties and Mr. Langstaff together as the “Moving Parties” and from time to time I will refer to Catalyst, Mr. Glassman and Callidus collectively as the “Catalyst Parties”).

[2] West Face and Mr. Boland refer, in the opening paragraph of their factum, to certain notorious events in which Mr. Glassman was involved (and which feature in and largely form the basis of the counterclaims herein). That is, the moving parties recite that Mr. Glassman and/or Catalyst infamously engaged a firm or firms staffed by “foreign spies” to orchestrate “sting” operations against their perceived enemies and against at least one judge of this court. They also note that Mr. Glassman and Catalyst have “repeatedly commenced abusive litigation that has been dismissed with substantial indemnity costs” and that Mr. Glassman “has consistently been found by this court to be an evasive and untrustworthy witness.”

[3] The Moving Parties maintain that this conduct on the part of Mr. Glassman and Catalyst is relevant for purposes of my consideration of the necessary constituent elements potentially giving rise to a Mareva injunction, and that in particular I should take the conduct into account in assessing the intent and motive for the acknowledged transfer of certain assets to offshore jurisdictions including the Bahamas and the Cayman Islands.

[4] Mr. Glassman and Catalyst do not deny that Mr. Glassman has been in the process of relocating his residence to the Bahamas, and setting up an office there for Catalyst, but deny that Catalyst is seeking to relocate the center of gravity of its business outside of Ontario, let alone with a view to thwarting judgment creditors, and in particular deny that there is any risk that a majority of Catalyst’s substantial assets will be beyond the reach of any judgment in this case.

[5] The Moving Parties acknowledge that there are various aspects of their motions that are atypical of Mareva injunction motions. Among other such features, they acknowledge that they are bringing the motions on notice, and not at the outset of these proceedings, which were commenced in 2017. They also emphasize that they are not seeking an all-encompassing worldwide Mareva, but are targeting a narrow portion of the respondents’ assets, asking that $50 million in assets be maintained (and exigible) in Ontario.

[6] The determination of this motion requires the court to consider the usual tests for a Mareva injunction, albeit in the unique circumstances of this case.

Result

[7] Having done so, as discussed below, I find that the Moving Parties have not met all of the required elements that must be satisfied to obtain a Mareva injunction, and I dismiss their motions.

Relevant Background

[8] As others have observed, the factual and procedural history of this matter is lengthy and complex. It is not necessary, in order for me to decide the motions before me, to attempt an exhaustive recitation of that extensive back story. As such, I will briefly set out a high‑level overview, with particular focus on aspects of the evidence that bear on the specific findings I must make.

A. West Face

[9] Mr. Boland founded West Face in 2006, and it operated for a number of years as a highly successful “alternative investment firm”, based in Toronto.

[10] Mr. Boland and West face allege that, as a result of Catalyst and Mr. Glassman’s campaign to discredit them and to destroy their reputations (as set out in detail in their counterclaim) West Face was unable to retain investors or raise new money, and has had to wind down its business. Mr. Boland now operates West Face solely as an investment vehicle for his own investments.

B. The Catalyst Parties

[11] Catalyst is a private equity firm founded by Mr. Glassman.

[12] Callidus is described as a lender for borrowers who were generally unable to access traditional lending sources.

[13] As noted above, Mr. Glassman has moved to the Bahamas, as has Rocco DiPucchio, a Managing Director and current Chief Operating Officer of Catalyst. The moving parties observe that as a Permanent Resident of the Bahamas, Mr. Glassman pays no tax, has no meaningful obligation to disclose the location or value of his assets to any tax authority, and can readily move his assets elsewhere in the world if he chooses to do so.

C. The Catalyst Parties’ Lawsuits: 2014 to 2017

[14] The Catalyst Parties commenced a series of lawsuits against West Face (and others) during the period between 2014 and 2017.

[15] The 2014 “Moyse Action” (as defined in the moving parties’ materials) alleged that West Face and Brandon Moyse, a former Catalyst employee, had misused confidential information to interfere with, and ultimately block Catalyst’s attempt to acquire the Canadian telecom company WIND mobile (“WIND”).

[16] In the 2015 “Veritas Action” (again, as defined in the moving parties’ materials) Catalyst and Callidus alleged that West Face and another defendant conspired to publish false and defamatory statements about Callidus during November 2014 to April 2015.

[17] The “VimpelCom Action” (again, defined as such in the moving parties’ materials) was commenced less than a week before the start of the trial in the Moyse Action, and in it Catalyst alleged that West Face had conspired with VimpelCom, the seller of WIND, and others to acquire WIND at the expense of Catalyst.

[18] Finally, in November of 2017, Catalyst and Callidus commenced the main action in these proceedings – in response to which the counterclaims were advanced, within which the motions before me are brought. In that action, defined in the Moving Parties’ materials as the “Wolfpack Action”, Catalyst and Callidus alleged that West Face and others participated in a conspiracy to short Callidus’ stock and then bring down its share price by filing a series of whistleblower complaints to the Ontario Securities Commission (“OSC”) and “planting” a story about those whistleblower complaints in The Wall Street Journal.

[19] Each of these claims has either stalled (in the case of the Veritas Action), or has been dismissed, including on appeal, (in each of the other three claims).

[20] West Face and Boland fairly summarize the outcomes of these actions as follows:

“Catalyst’s four lawsuits against West Face have resulted in over a dozen reported decisions against Catalyst and Callidus and close to $5 million in costs awards, many of them on a substantial indemnity basis. Catalyst’s positions and arguments have been consistently rejected, and Glassman’s evidence has been held to be untrustworthy and unreliable.”

D. The Moving Parties’ Discovery of the Role of Black Cube and the Psy Group

[21] In addition to the Catalyst Parties suing West Face and others four times, West Face alleges that it learned in late 2017 that the Catalyst Parties had also hired a firm called “Black Cube” (the c.o.b. name for the defendants by counterclaim and crossclaim B.C. Strategy Ltd. and B.C. Strategy UK Ltd.), an intelligence and counterintelligence firm allegedly staffed by former Mossad agents, and a similarly staffed “disinformation” firm called Psy Group (the c.o.b. name for the defendant by counterclaim Invop Ltd.). West Face and Mr. Boland, and Bruce Langstaff in his motion, assert that these entities, Black Cube and Psy Group, were engaged to and did in fact “conduct a breathtaking campaign of defamation and harassment in retaliation for the repeated business and litigation defeats that they had suffered at the hands of the West Face Parties”.

[22] I note that Mr. Glassman’s evidence is that he did not hire or instruct Black Cube or Psy Group. Rather, he says that he engaged an entity called Tamara Global Holdings Ltd. (“Tamara Global”), an Israeli security and litigation support firm, that in turn retained Black Cube and Psy Group. Mr. Glassman maintains that his expectation, confirmed in the relevant contract, was that Tamara Global and its subcontractors would conduct themselves in accordance with the law, and that he never instructed or authorized anyone to do otherwise.

[23] Whatever the chain of command, it appears to be incontrovertible that Black Cube was responsible for orchestrating various covert “stings” on multiple targets, including West Face’s former general counsel and a number of its then employees, and, most infamously, on former Justice Newbould, of this court, (who had decided the Moyse case against the Catalyst Parties, and in so doing had made significant adverse findings relative to the credibility and bona fides of Mr. Glassman in particular). Psy Group and the Catalyst Parties would then, West Face alleges, “disseminate misleading and cherry-picked excerpts of the sting transcripts to make false and defamatory statements about the West Face Parties and Justice Newbould, including in Catalyst press releases and letters to their investors, various fabricated internet postings (including videos), and communications to the media.” West Face says that “In other cases, Glassman personally instructed Psy Group to simply invent and disseminate false allegations of criminal behaviour by the West Face Parties.”

[24] In terms of Mr. Glassman’s personal involvement in these operations, by way of what West Face describes as “but one particularly egregious example,” there is in the record an instance where Mr. Glassman instructed Psy Group in writing as follows:

“I think NOW or VERY SOON is the perfect time to hear/see ‘chatter’ on social media etc. of rumors of an alleged Wolfpack, rumors of west face/anson partners involvement therein, rumors of 8 or more victims, rumors of boland being looked at (not yet criminal investigation) for criminality etc.” [errors in original]

E. The Anti-SLAPP Motions

[25] In November of 2017, West Face, Mr. Boland and other defendants brought “anti-SLAPP” motions pursuant to section 137.1 of the Courts of Justice Act, seeking to dismiss the Wolfpack Action against them. In response, the Catalyst Parties brought competing Anti-SLAPP motion seeking to dismiss aspects of the counterclaims (collectively the “Anti-SLAPP Motions”).

[26] In the lengthy course of the Anti-SLAPP Motions, the Catalyst Parties asserted privilege over their relationships with Black Cube and Psy Group, and refused to produce any communications and/or other documents relative to their retainers.

[27] In fact, West Face first learned of Black Cube’s sting on Justice Newbould through the reporting of Christie Blatchford in the National Post, whom Psy Group had unsuccessfully attempted to co-opt into the campaign against Justice Newbould. West Face says that it only learned about the involvement and role of Psy Group as a result of a whistleblower, Phil Elwood, who had been retained by Psy Group to work on what Psy Group labelled “Project Maple Tree” for Catalyst and Mr. Glassman.

[28] Mr. Elwood disclosed that Project Maple Tree was conceived as a two-pronged campaign: a “White” initiative geared at generating positive publicity in mainstream media for the Catalyst Parties, and a “Black” component developing and spreading stories of the supposed conspiracy that Catalyst planned to and did in fact allege in the Wolfpack Action, and stories portraying Justice Newbould as corrupt and anti-Semitic.

F. Justice Boswell’s Decision re Challenge to Privilege Claims

[29] In what appears to have been a pivotal decision in this matter, Boswell J. upheld a challenge of the Catalyst Parties’ privilege claims over its relationship with Black Cube and Psy Group.

[30] In doing so, and relative to the question of Mr. Glassman’s personal involvement in instructing Black Cube within the overall campaign, Boswell J. found that:

“Black Cube agents lied to former Justice Newbould. They took him to dinner, bought him drinks, pretended like they wanted to retain him as an arbitrator and then did their best to dupe him into making utterances that might embarrass him. They did so not because there was any credible evidence that he was biased against Jews or Catalyst or anyone else. They did so because they were being paid a very large amount of money to do so by someone who was very unhappy with a decision that he had rendered in his capacity as a Superior Court Justice.”

G. Further Evidence of Mr. Glassman’s Direct Instruction of Operatives

[31] Further evidence of Mr. Glassman’s direct participation in the deployment of Black Cube can be found in his acknowledged creation of a hand-written five-tiered “Bonus Legend” incorporated as “Annex A” to the executed version of Black Cube’s letter of engagement, contemplating up to U.S.$11.5 million in “success fees” if Black Cube’s operatives would succeed in generating evidence showing that Justice Newbould was corrupt and/or anti-semitic.

[32] More particularly, as found by McEwen J. in his decision on the Anti-SLAPP Motions, Mr. Glassman’s handwritten notes specified that Black Cube would be paid $75,000.00 “per item” if its operatives could secure evidence that Justice Newbould harboured various enumerated biases for or against the West Face and Catalyst Parties, respectively.

[33] Justice Boswell found, in his decision regarding the privilege claims, that Catalyst was the party ultimately paying Black Cube’s fees, including the fees of up to U.S.$11.5 million potentially available under the Bonus Legend penned by Mr. Glassman.

H. Commencement of Counterclaims

[34] West Face and Mr. Boland commenced their counterclaim herein shortly after learning, in 2017, about the Catalyst Parties’ concerted campaign to undermine and defame them (and others) using the approach summarized at a high level above. The West Face Parties seek damages of $450 million for West Face and $50 million for Mr. Boland.

[35] In the context of the privilege claims adjudicated by Boswell J. within the Anti-SLAPP Motions decided by McEwen J., further disclosure was obtained, again as broadly set out above, which redoubled the determination of the West Face Parties to pursue their claims.

[36] In ultimately deciding the Anti-SLAPP Motions, McEwen J., like Boswell J., made various findings implicating the Catalyst Parties, including that Mr. Glassman was directly involved in instructing Black Cube, and as to the unsavoury purposes of Project Maple Tree and related aspects of the various sting operations.

Background to Mr. Langstaff’s Counterclaims

[37] I will now briefly touch on the background to the (counter)-claim of Mr. Langstaff, who as noted is also seeking Mareva relief, in a parallel motion to that of the West Face Parties.

[38] Mr. Langstaff describes his participation in these proceedings as follows:

“The Catalyst Parties have repeatedly attempted to use this lawsuit as a strategic weapon in order to punish anyone who would dare to question their business activities, or to otherwise suppress or avoid scrutiny by participants in the capital markets. This “multi-tentacled lawsuit” has a long and complex history, and this is only one of many meritless and unsuccessful lawsuits that the Catalyst Parties have brought as against West Face Capital and its principal Greg Boland…Langstaff is essentially collateral damage in the Catalyst Parties’ relentless campaign as against the West Face Parties, who have also brought a Mareva injunction as against the Catalyst Parties in respect of their Counterclaim.”

[39] The way in which Mr. Langstaff became “collateral damage,” he alleges, stems from the fact that, up to the point of the termination of his employment in September of 2017, Mr. Langstaff was a senior executive at Canaccord Genuity Corp. (“Canaccord”), a full-service investment bank. His title was Managing Director, Canadian Equity Sates.

[40] He alleges that he lost his position at Canaccord as a result of pressure applied by the Catalyst Parties, and that “due to the vindictive actions of the Catalyst Parties and the fact that he is a named defendant in this lawsuit, Langstaff’s reputation has been destroyed and his earning potential is significantly diminished”.

[41] Mr. Langstaff says he was fired because the Catalyst Parties, and in particular Mr. Glassman, believed that he participated in an alleged conspiracy in the context of the Wolfpack Action, essentially to denigrate the Catalyst Parties publicly with a view to short-selling Callidus’ stock when that stock lost value in response to the public defamation campaign.

[42] There is in evidence in the record before me an affidavit from Mr. Glassman’s ex-spouse Laura MacDonald. Ms. MacDonald deposes that she overheard discussions between Mr. Glassman and others during which he specifically threatened members of Canaccord’s senior management team in order to pressure Canaccord to terminate Mr. Langstaff’s employment.

[43] On the other hand, as Catalyst emphasizes, Canaccord, which is a party to the proceedings, has pleaded that it terminated Mr. Langstaff’s employment for other reasons, unrelated to the Catalyst Parties.

The Moving Parties’ Concern re Removal and Dissipation of Assets

[44] The West Face Parties and Mr. Langstaff express very similar concerns about the risk of the Catalyst Parties removing and dissipating assets.

[45] They acknowledge that Mr. Glassman owns real estate assets in Ontario, including a house in Toronto, at 17 Ardwold Gate, worth upwards of $30 million, and a cottage in Muskoka, at 1043 Boyce Road, Port Carling, owned through a holding company owned by Mr. Glassman called Figcorp Ltd.

[46] There is also no dispute that Catalyst owns assets in Ontario. The moving parties note that while Catalyst has revealed that it has multiple bank accounts in Ontario, it has refused to provide the locations or balances of those accounts.

[47] However, the Moving Parties point out and acknowledge that recently, on March 29, 2024, Catalyst filed a form with the U.S. Securities Exchange Commission indicating that it has over U.S. $1 billion in assets.

[48] As noted above, Mr. Glassman has left the country and has become a Permanent Resident of the Bahamas.

[49] The Moving Parties maintain that they began to develop concerns about their ability to realize any judgment(s) they obtain in this proceeding down the road as a result, in part, of an affidavit Mr. Glassman swore in June of 2022 in the context of divorce proceedings between Mr. Glassman and Ms. MacDonald. In that affidavit, Mr. Glassman swore that:

“39. Between February and April 2021, I formally retained Faskens…to help expedite the family’s exit from Canada. I also met with the Maitland Group regarding a strategy for the exit process, including departure tax issues. By April, the Maitland Group had been retained and began preparation to transition assets out of Canada. My company, Catalyst, began discussions to give up a large proportion of our office space in Toronto and in May, we formally rented and began construction of a substantial office space in the Bahamas to partially replace such (all but effectively back-office). This step required hundreds of thousands of dollars of investment for construction, new furniture, and new additional staff. I would not have undertaken this had [Ms. MacDonald] and I not agreed to a permanent move to the Bahamas.

40. In March 2021 I began moving my banking and wealth management services out of Canada to the Bahamas, a process which continues today.

41. By December 2021, BDO provided advice regarding the valuation and tax aspects of our departure from Canada, including meeting all CRA requirements to sever ties.”

[50] The Moving Parties also point to Mr. Glassman’s March 22, 2024 affidavit, filed in response to this motion, in which Mr. Glassman deposes that it is his intention to sell the Ardwold Gate property as quickly as possible, and they note that the Ardwold Gate property was “publicly listed for sale for the first time on February 21, 2024, at an asking price of $34.5 million”. I should note here the potential importance of the word “publicly” in the moving parties’ conception of this issue. It is clear that, to the knowledge of the moving parties, Mr. Glassman has had private listings offering to sell the Ardwold Gate property off and on for at least the last couple of years.

[51] However, the Moving Parties assert that:

“The urgency arose in February of 2024, when the West Face Parties learned that (i) Glassman listed the $34.5 million Ardwold Residence for sale; (ii) Catalyst was taking steps to sublease its office at 181 Bay Street; and (iii) Catalyst and Glassman were no longer registered with the OSC.”

[52] In addition, the West Face Parties say: “Exacerbating the West Face Parties’ concerns, their co-defendant and fellow plaintiff by counterclaim Bruce Langstaff obtained a sworn Affidavit from Glassman’s ex-wire, Laura MacDonald, deposing that Glassman had moved assets with the intention of evading creditors.”

[53] The Moving Parties maintain that they brought their motions promptly upon learning of these recent facts.

The Six‑Part Test for Mareva Injunction

[54] All parties appear to agree, and certainly argued the motion on the basis, that the relevant touchstones for my consideration in determining a motion for a Mareva order are the factors (sometimes referred to as the “six part test” initially promulgated in Chitel v. Rothbart 1982 CanLII 1956 (ON CA), [1982] O.J. No. 3540, and discussed and developed in extensive case law since then.

[55] In order to obtain a Mareva injunction, the moving parties must:

(a) demonstrate a strong prima facie case on the merits;

(b) establish grounds for believing that the responding parties have assets in the jurisdiction where the order is sought;

(c) satisfy the court that the moving parties will suffer irreparable harm if the relief is not granted;

(d) establish grounds that will persuade the court that there is a real risk that the responding parties (i) are removing or will remove the assets from the jurisdiction; or (ii) will otherwise dissipate the assets;

(e) show in all the circumstances that the balance of convenience favours the moving parties; and

(f) provide an undertaking as to damages.

[56] Although the parties agree that these are the elements of the test that the court must consider, they disagree, with respect to item (d) – the need to show a real risk of removal of assets from the jurisdiction – as to whether or not the moving parties must show that the respondent is removing assets intentionally with a view to putting such assets beyond the reach of judgment creditors. The Catalyst Parties assert that “the requirement that there be evidence of an intention to put assets beyond the reach of the Court for the purpose of defeating any judgment” is in fact the “sine qua non” of obtaining a Mareva injunction. I will discuss that issue when I come to it in my analysis of whether or not the Moving Parties meet the test here.

Discussion of Strong Prima Facie Case

[57] The Moving Parties accept that a strong prima facie case is one that is likely to succeed at trial, and that the motions judge must be convinced, based on the evidence presented, that there is a strong likelihood that the moving party will ultimately prove its allegations at trial.

[58] The Catalyst Parties note, and the Moving Parties accept, that, in keeping with the notion that a Mareva injunction is an extraordinary remedy, the threshold for establishing a strong prima facie case is a more stringent and rigorous test than the “serious issue to be tried” threshold.

[59] As Favreau J. put it in Lee v. Chang, 2018 ONSC 930, referencing this court’s earlier decision in Quizno’s Canada Restaurant Corp. v. 1450987 Ontario Corp. 2009 CanLII 20708 (ON SC), [2009] O.J. No. 1743 (SCJ), “a strong prima facie case requires the plaintiffs to demonstrate that they are clearly right and almost certain to succeed at trial”.

[60] The West Face Parties maintain that “the truly extraordinary facts underlying the Counterclaim easily surpass this hurdle”. They say that their voluminous record shows Mr. Glassman’s “intimate involvement” in the conduct pleaded in the counterclaim, and that there is no substantive evidence to the contrary.

[61] In particular, they argue, the evidence demonstrates that Mr. Glassman engaged Black Cube and Psy Group to “carry out ruthless campaigns of harassment and defamation against the West Face Parties”. They note that Mr. Glassman’s evidence is that he did so “on behalf of himself, ‘my partners, our families and Catalyst and Callidus.’” They point to internal correspondence among Psy Group’s team reflecting “Glassman’s instructions to ‘discredit’ West Face and Justice Newbould, including by generating false stories about the West Face Parties’ supposed involvement in the ‘Wolfpack’ conspiracy, criminal activity by Boland; Justice Newbould being corrupt and anti-Semitic; and any other kind of negative information that could be invented about the West Face Parties”.

[62] The West Face Parties argue that, in response to the voluminous evidence that they filed on this motion about the merits of the counterclaim, the Catalyst Parties in effect filed “nothing”. The West Face Parties say that the responding affidavits, of Mr. Glassman and Mr. DiPucchio, do not deny “a single allegation of the Counterclaim” and in fact admit most of what is alleged.

[63] In their response to the West Face Parties’ assertion that they have a strong prima facie case, the Catalyst Parties focus primarily on the question of whether or not there is a strong prima facie case for personal liability on the part of Mr. Glassman.

[64] They cite and rely on Hackland J.’s recent decision in Guru Eak Transport Ltd. v. Eagle Truck Sales Inc. et al, 2022 ONSC 702. Justice Hackland, in discussing the law governing the personal liability of officers, directors and employees, in turn references Nishikawa J.’s decision in Khursheed v. Benedig Capital SAS, 2019 ONSC 5190, where Her Honour wrote:

“The case law makes clear that unless there is an independent cause of action against them, officers, directors and employees are protected from personal liability for acts carried out under a corporate name. As the Court of Appeal stated in ScotiaMcleod Inc. v. People’s Jewellers Ltd. 1995 CanLII 1301 (ONCA, 26 O.R. (3d) 481 (CA) at ppl 490-491:

The decided cases in which employees and officers of companies have been found liable for actions ostensibly carried out under a corporate name are fact-specific. In the absence of findings of fraud, deceit, dishonesty or want of authority on the part of employees or officers, they are also rare…In every case, however, the facts giving rise to personal liability were specifically pleaded. Absent allegations which fit within the categories described above, officers or employees of limited companies are protected from personal liability unless it can be shown that their actions are themselves tortious or exhibit a separate identity or interest from that of the company so as to make the act or conduct complained of their own.”

[65] The Catalyst Parties take issue with the West Face Parties’ allegation that Mr. Glassman retained Black Cube or Psy Group to carry out the alleged campaigns of harassment and defamation against the West Face Parties. They say that no court has found that Mr. Glassman retained Black Cube or the Psy Group, and point out that Catalyst has commenced its own claim against Black Cube, alleging Black Cube breached its duties to act lawfully.

[66] They rely on Mr. Glassman’s affidavit evidence deposing that at all material times he acted solely in his capacity as an employee, officer and director of Catalyst and Callidus. In sum, they say, the West Face Parties have not adduced cogent evidence demonstrating that there is a strong prima facie case that Mr. Glassman acted outside his capacity as an employee, officer and/or director of Catalyst and Callidus regarding the activities and retainer of Black Cube and Psy Group.

[67] I disagree.

The West Face Parties Have Shown a Strong Prima Facie Case

[68] While it will not matter to the outcome of this motion given my findings on other elements of the test for a Mareva injunction, I am persuaded that the West Face Parties have made out a strong prima facie case against the Catalyst Parties, including Mr. Glassman.

[69] In my view the activities undertaken by the Catalyst Parties allegedly to “protect the businesses, the funds, and the people” were despicable, and not an acceptable or reasonable way of conducting business, and in fact were not in the nature of any reasonable conception of conducting business at all.

[70] I am not so naïve as to think that businesses do not engage in some forms of corporate espionage. However, the conduct of Catalyst, in seeking to bait and/or manufacture discreditable conduct and then to selectively rely on portions of that manufactured conduct to attack their rivals and engage in public character assassination, is beyond what can be construed as acceptable. The essence of the conduct in question was and is deceit, and the business community and society at large cannot condone such tactics.

[71] Nor should Mr. Glassman be permitted to hide behind the shelter of his capacity as an officer and director discharging his duties towards the companies.

[72] First, and again, the activities in question were not acceptable business activity. To take an extreme example to illustrate the point, an employee who is asked to steal from, or to murder, business rivals cannot then suggest that he or she was merely discharging their duties towards their employer.

[73] Moreover, the evidence is clear that, whatever the notional contractual relationship with Tamara and the subcontractors, Mr. Glassman was the party directing the entire campaign. The instances described above in which Mr. Glassman was suggesting and directing next steps in the campaign to besmirch Mr. Boland and West Face by disseminating via social media “information”, that Mr. Glassman knew to be false, implicates him directly in independent tortious activity, which was deceitful, dishonest and fraudulent.

[74] To similar effect, the evidence clearly shows that Mr. Glassman created the “Bonus Legend” of performance fees for Black Cube to incentivize Black Cube’s operatives to manipulate and entrap the scheme’s targets into conduct or comment that the Catalyst Parties could use to their advantage. Consistent with various previous judicial findings about Mr. Glassman’s role in the stings, I conclude that he was the directing mind of the entire operation, developing and overseeing the regrettable scheme from start to finish.

No Need to show Strong Prima Facie Case “Dollar for Dollar”

[75] I am also not persuaded by the Catalyst Parties’ next argument under the heading of the need for a strong prima facie case.

[76] As I understand the argument, the Catalyst Parties say that, because the West Face Parties’ counterclaim is for, among other claims, $450 million in general damages for West Face and $50 million in general damages for Mr. Boland, and because general damages awards for defamation top out in the range of $1 million or less, the West Face Parties have failed to demonstrate a strong prima facie case for the amounts that they claim.

[77] This argument overlooks various other causes of action pleaded by the West Face Parties in their counterclaim, including conspiracy, breach of confidence, inducing breach of confidence, inducing breach of contract, inducing breach of fiduciary duty and the tort of unlawful means. The West Face Parties allege that their ability to raise and retain invested capital, and to make investments in other companies was diminished as a result of the actions of the Catalyst Parties. While I agree that the essence of the West Face Parties’ counterclaim largely sounds in defamation, the claim also specifically alleges consequential harms resulting from the fully array of conduct and causes of action pleaded by the Catalyst Parties that is alleged to have caused considerably more economic harm to the West Face Parties than might normally arise from “simple” defamation.

[78] Moreover, I am not aware of any authority, and nor was any brought to my attention, requiring “dollar for dollar” proof of damages before a Mareva injunction can be granted.

No Issue Re Assets in Ontario

[79] There is no suggestion that the Catalyst Parties do not have assets in Ontario, and so that element of the test is met.

Moving Parties Fail to Meet the “Real Risk of Removal Test” (And the Need to Show Intent)

[80] It is in the next aspect of the test, the obligation to show that there is a real risk that the responding parties (i) are removing or will remove the assets from the jurisdiction; or (ii) will otherwise dissipate the assets, and in particular in relation to the question of purpose or intent that, in my view, the moving parties’ evidence falls short.

Competing Conceptions and Caselaw re the Need to Show Intent

[81] The West Face Parties, confronting the issue head on, maintain that “This Court has held, repeatedly, that it is not necessary for the moving party to demonstrate that the purpose of the responding parties’ removal or dissipation of the assets was improper.” The focus of the inquiry, they say, is “not the purpose for the removal of the assets, but rather the enforceability of the judgment if the assets are transferred for purposes other than to pay business debts”.

[82] In support of this proposition, the West Face Parties first cite Weiler J.’s reasons in R v. Consolidated Fastfrate Transport Inc. 1995 CanLII 1527 (ON CA), 1995 CarswellOnt 993, where Weiler J. observed that:

“The concluding reasons of Estey J. in Aetna suggest that the focus of the inquiry is not the purpose for the removal of the assets, but rather the enforceability of the judgment, if the assets are transferred for purposes other than to pay business debts.”

[83] Beyond Weiler J.’s reasons in Fastfrate, the authorities cited by the West Face Parties in support of the notion that “the purpose for removal of assets” is not the proper focus of the inquiry, are limited in number and do not appear to rely on this approach to the question of purpose. For example, Osborne J.’s decision in Original Traders Energy Ltd., 2023 ONSC 1887, cited by the moving parties, includes a lengthy passage from the Divisional Court’s decision in SFC Litigation Trust (Trustee Of) v. Chan, 137 O.R. (3d) 382, 2017 ONSC 1815, which has imbedded within it excerpts from Weiler J.’s reasons in Fastfrate, but does not comment on the relevant passage. Moreover, Osborne J.’s decision, which related to parties absconding with a valuable yacht, appears to place some weight on the fact that “the Respondents further fraudulently executed and forged signatures on documents to Essex, the party that provided financing for the Yacht”.

[84] It seems to me implicit in His Honour’s highlighting of this fact that the deceitful conduct (and intent) of the absconder factored into his decision.

[85] Moreover, it is worth noting that Weiler J.’s reasons in Fastfrate, while concurring in the result, were the minority reasons in the decision in which Galligan J. wrote for the majority (and in which Houlden J.A. concurred with the reasons of Galligan J.).

[86] Justice Galligan who, like Weiler J., considered Estey J.’s decision in Aetna Financial Services Ltd. v. Feiselman, held that:

“...the better view is that the determinative question is the purpose for which the arrangement of assets is made. Thus, I am of the view that there is an improper purpose which will attract Mareva relief if the defendant makes an arrangement of his assets with the intention of defeating potential creditors. If, on the other hand, the purpose of the arrangement is a legitimate one in advance of the defendant’s interests, then this fact that the result may defeat potential creditors will not justify the granting of a Mareva injunction.”

[87] The Catalyst Parties argue, and it appears to be the case, that the “state of the law in Ontario is as held in the majority decision of Consolidated Fastfrate.”

[88] For example, the Catalyst Parties cite the recent decision of Penny J. in 10390160 Canada Ltd. v. Casey, 2022 ONSC 628, in which His Honour said:

“[43] The sine qua non of the Mareva injunction is the requirement that there be evidence of an intention to put assets beyond the reach of the court for the purpose of defeating any judgment that might ultimately be granted in the plaintiff’s claim. This requirement has been variously described in decisions of Canadian courts commencing with Chitel v. Rothbart (1982), 1982 CanLII 1956 (ONCA), 39 O.R. (2d) 513 (C.A.) and Aetna Financial Services Ltd. v. Feigelman, 1985 CanLII 55 (SCC, [1985] 1 S.C.R. 2.

[44] The Court of Appeal has explained that “the purpose of the defendant is the decisive question. In other words, it is only if the purpose of the defendant when removing assets from the jurisdiction or the dissipating or disposing of them is for the purpose of avoiding judgment that a Mareva injunction should be issued”: R. Fastfrate (1995), 1995 CanLII 1527 (ONCA), 24 O.R. (3d) 564 (C.A.), applied in RBC Dexia Investor Services Trust v. Goran Capital Inc., 2016 ONSC 1138, at para. 11(b).”

[89] In the RBC Dexia case, Hainey J. accepted as a correct statement of the governing law Galligan J.A.’s observations at paragraph 52 in Fastfrate. Justice Hainey said:

“Galligan J.A.’s decision requires me to consider the purpose for which Granite wishes to withdraw the funds from the Custody Account. I can only consider granting a Mareva injunction if I conclude that the purpose and intention of Granite is to defeat any judgment that RBC may obtain against it. If I conclude that the purpose of Granite withdrawing the funds from the Custody Account is a legitimate one, the fact that it may affect RBC’s ability to recover on any judgment it may obtain does not justify the granting of a Mareva injunction.”

[90] Similarly, Perrell J. noted in Ghaeinizadeh v. Ku De Ta Capital Inc., 2010 ONSC 4169, that “a Mareva injunction should only be issued if it is known that the defendant’s purpose is to remove his or her assets to avoid judgment.”

[91] The Catalyst Parties also cite the Divisional Court’s decision in Di Menza v. Richardson Greenshields of Canada Ltd. (1989), 1989 CanLII 4138 (ON SC), 1989 CarswellOnt 476, 74 O.R. (2d) 172 (Div. Ct.), in which the court emphasized the need to show, in order to meet the relevant part of the test for a Mareva injunction, that the respondents were removing assets from Ontario to avoid the possibility of a judgment, or were otherwise dissipating or disposing of their assets in a manner clearly distinct from their usual ordinary course of their business or living.

[92] I find that the significant preponderance of case law, including recent decisions, requires that intent to defeat creditors or avoid judgment must be shown to meet the stringent tests to impose a Mareva injunction. This is consistent, in my view, with the extraordinary nature of the remedy, and the related notion that it ought only to be ordered in the clearest of circumstances.

Deficiencies in the Moving Parties’ Evidence on Risk of Removal

[93] Against this requirement, there are shortcomings in the evidence mustered by the moving parties. There is no evidence showing that Catalyst has moved, or intends to move, any assets out of Ontario. The closest the West Face parties come is Mr. Boland’s affidavit evidence that his “understanding” or “belief” is that Catalyst is removing assets from Ontario. In cross‑examination of Mr. Boland, however, the following exchange occurred:

“21. Q. I’m not looking for your suspicions. I’m looking for whether you have any knowledge today that Catalyst Capital moved any assets out of Ontario since the date you commenced your counterclaim. Can you identify one?

A. No, not off – no, I can’t.”

[94] There is also unchallenged evidence in the record that Catalyst renewed its lease for its premises at 181 Bay Street in Toronto for five years in 2021.

[95] This evidence would fall short regardless of the need to show intent to defeat creditors and avoid enforcement of judgments; there is no compelling evidence that Catalyst is moving assets at all, let alone of the required element of intent.

[96] While in the case of Mr. Glassman there is evidence that he (and initially his family) has relocated to the Bahamas, there is no evidence confirming that his purpose for doing so is to defeat a potential judgment in this (or any) case. Rather, Mr. Glassman has given evidence, consistent with events, to the effect that it has been part of a longer-term plan to relocate. Importantly, there is evidence that Mr. Glassman first purchased property in the Bahamas in 2014 before this litigation (any of the cluster of case) commenced. Nonetheless, as in the case of Catalyst, there is evidence of substantial assets belonging to Mr. Glassman that remain in Ontario, including his house and cottage.

Rejection of Inference Based on Bad Character

[97] Before me, counsel for the West Face Parties argued that, in assessing the question of intent, I should take into account the many examples and judicial findings of dishonourable and deceitful conduct on the part of Mr. Glassman, and in effect infer the intent from Mr. Glassman’s demonstrated inclination to behave abhorrently. To the extent I understood that argument correctly, I must reject it. If the court were to infer intent based on general misconduct of a party, there would in my view be a high risk of finding intent without specific evidence to prove it. Given the high thresholds to be met for a Mareva injunction, I do not believe it would be appropriate to lower the hurdles based on unrelated or minimally related evidence of bad character or misdeeds. To uphold this argument would also risk taking the court down a slippery and unproductive slope, on which, generally, mudslinging would be encouraged and rewarded.

The Evidence About Mr. Glassman’s House and Cottage

[98] The evidence about the house and cottage are also problematic for the moving parties’ quest for a Mareva injunction.

[99] The house, at 17 Ardwold Gate, is indeed for sale. However, consistent with Mr. Glassman’s stated and open intention to move, the house has in fact been exposed to the market, off and on, for a number of years. As will be discussed below in evaluating the urgency with which the Moving Parties have brought this motion, the Moving Parties have known for some time about these efforts by Mr. Glassman to sell his home, and that the home has been vacant for over three years.

[100] Whereas Mr. Glassman’s initial efforts to sell the house, commencing in 2021, were by way of exclusive listing agreements, in February of 2024, apparently on the advice of his real estate agent, Mr. Glassman listed the Ardwold Gate home on the Multiple Listing service.

[101] The Moving Parties characterize this listing on the MLS as one of the key revelations that caused them to bring this motion.

[102] However, news of Mr. Glassman listing his home for sale (albeit this time on the MLS) was decidedly not revelatory. On August 23 of 2022 – over 18 months ago – counsel for the West Face Parties wrote to counsel for the Catalyst Parties (the “August 2022 Letter”) noting, among other observations, that Mr. Glassman’s house at 17 Ardwold Gate was at that time listed for sale, and that “Mr. Glassman’s ongoing removal of his personal assets from Ontario and Canada presents a real risk that he will have insufficient assets upon which West Face and Mr. Boland could execute judgment in their Counterclaim… ”.

[103] In that same letter, counsel for the West Face Parties alleged that it was also Mr. Glassman’s intent to sell his cottage in Muskoka.

[104] It appears that the primary basis for this latter allegation is information that the West Face Parties received from Mr. Glassman’s ex-spouse Ms. MacDonald, perhaps via Mr. Langstaff, who apparently made contact with Ms. MacDonald for purposes of obtaining her evidence on various matters germane to this motion (and the counterclaim). In particular, on this point, Ms. MacDonald has, in the context of deposing her belief that Mr. Glassman has a plan to and has been making efforts towards dissipating his Ontario assets, specifically identified the Muskoka cottage as one of the assets that Mr. Glassman has been seeking to sell.

[105] More specifically, Ms. MacDonald deposed that Mr. Glassman has recently been trying to sell the Muskoka property, and that he had “engaged the services of Rick Scully, a real estate agent and a personal friend of Mr. Glassman’s, to schedule viewings of the property with several potential buyer.”

[106] Mr. Glassman, on the other hand, has deposed that he has no current plans to sell the Muskoka cottage and that he cherishes the time he spends with his son at that cottage, and looks forward to doing so for years to come.

[107] Equally or more importantly, Mr. Scully has sworn an affidavit in these proceedings, on which he was not cross-examined, in which he gives unqualified evidence that he has never been engaged to sell Mr. Glassman’s Muskoka cottage, has never conducted showings or viewings of the property, and is not aware of anyone else having been engaged to do so.

[108] There are a number of similar instances relative to Ms. MacDonald’s evidence, in which she has attributed words or conduct to particular people, and in response to which those people have provided affidavit evidence, on which there has been no attempt to cross-examine, flatly denying and contradicting Ms. MacDonald’s assertions. While I make no definitive finding about Ms. MacDonald’s credibility and evidence, suffice to say that I would not be comfortable relying on that evidence at this stage as overcoming the high bar the Moving Parties must surmount to persuade the court to grant a Mareva injunction.

[109] In short, on this aspect of the case, relative to which my comments above deal with only a tiny fraction of the voluminous record, I am not satisfied that the evidence shows an abiding effort by the Catalyst Parties to remove assets from Ontario out of the ordinary course, let alone that any such removal of assets is undertaken with the intention of defeating creditors, judgments and executions.

The Timing of the Motions Does Not Reflect Urgency

[110] As alluded to in passing in discussing the August 2022 Letter from counsel for the West Face Parties, (about Mr. Glassman listing his house for sale and other items), the moving parties have not moved with alacrity to seek this injunction.

[111] It is well-established in relevant authorities that a Mareva injunction generally ought to be pursued with dispatch.

[112] In her decision in Original Traders Energy Ltd. (Re), 2024 ONSC 325, subsequent in those proceedings to the decision of Osborne J. referenced above, Kimmel J. observed:

“It is well established that delay can be fatal to any injunction application if the plaintiff fails to act in a reasonable time, and injunctions should not be awarded to parties who show no sense of urgency. As stated in Robert J. Sharpe, Injunctions and Specific Performance (Toronto: Thomas Reuters, 2023) at 1:28:

‘on interlocutory applications, delay has somewhat different implications. The evidentiary factor becomes much more significant. To succeed, the plaintiff must show a substantial risk of irreparable harm in the period leading up to the trial. The very fact of delay by the plaintiff, quite apart from any question of prejudice to the defendant, may often serve as evidence that the risk is not significant enough to warrant interlocutory relief.’”

[113] As an example of the importance of immediate action in this context, in Lee v. Chang, 2018 ONSC 2091, Myers J., sitting in the Divisional Court, in circumstances where the plaintiffs sought an urgent injunction pending the hearing of their motion for leave to appeal an order that terminated injunctive Mareva relief against two defendants, held that the passage of six weeks since the order had been made showed that there was no urgency. Justice Myers observed that if the harm alleged had been urgently feared, the plaintiffs would have moved much sooner.

[114] While given the scope and sweep of the assets potentially encompassed by the allegations here, even as “pared down” in the moving parties’ request for Mareva relief, I would not necessarily view six weeks, or even longer, as being fatal to the motion. However, the contents of the August 23, 2022 letter, and the over 18-month delay since then, in my view, are fatal.

[115] The various items and conduct enumerated in that letter, described as creating the risk to the West Face Parties’ ability to collect on any judgment they might obtain, are essentially the same items and conduct to which the moving parties point now.

[116] In his cross-examination on March 28, 2024 (at question 38), Mr. Boland confirmed that as of the date of the August 2022 Letter, August 23, 2022, his position was “that there was a real risk that Mr. Glassman would have insufficient assets upon which West Face and Mr. Boland could execute judgment in the Counterclaim”.

[117] Despite the contents of the August 2022 letter, and the clear acknowledgment that the West Face Parties had formed the view by the date of the letter that the risk forming the basis of their current motion was already evident in August of 2022, the West Face Parties did not deliver the current motion until March 1, 2024.

[118] They provide no compelling explanation for the delay.

[119] They say that the two factors leading to them only bringing the motion now are:

(i) that they learned of Mr. Glassman listing of 17 Ardwold Gate property for sale; and

(ii) that they learned that Mr. Glassman and Catalyst had surrendered their respective registrations with the Ontario Securities Commission.

[120] With respect to the first factor, the August 2022 Letter confirms that the West Face Parties were specifically aware by then of Mr. Glassman’s efforts to sell the house.

[121] As to the second factor, there is evidence on behalf of the Catalyst Parties that they voluntarily surrendered their registration with the OSC in December of 2023, because the OSC registration was not, and never had been, necessary to operate Catalyst’s business. In support of that contention, Catalyst notes that it continues to operate as a private equity firm in the same manner as before the suspension of the OSC registration.

[122] Moreover, there is unchallenged evidence before me from Garth Foster, a partner at the Faskens firm who has advised the Catalyst Parties since Catalyst’s founding in 2002 on OSC registration matters. Mr. Foster deposes that the surrender of the OSC registrations had nothing to do with Mr. Glassman’s change of residency or with any alleged movement of Mr. Glassman’s assets or businesses.

[123] In my view the moving parties’ purported explanations for the current “urgency” to bring these motions are underwhelming. These explanations do not furnish sufficient evidence to show that the motions are suddenly urgent now, or that the circumstances have changed materially since the August 2022 Letter.

[124] As such, in addition to the lack of clear evidence of an intention by the Catalyst Parties to put their assets out of reach of judgment creditors, the lack of demonstrated urgency constitutes a second significant reason why these motions must fail.

The Moving Parties Do Not Demonstrate Irreparable Harm

[125] The evidence of irreparable harm is also somewhat wanting.

[126] The Catalyst Parties have adduced evidence from (legal) experts that in the Bahamas (and the Cayman Islands, to which Mr. Glassman is also alleged to have moved, or set up a mechanism to move his assets), an Ontario judgment, generally speaking, can be enforced.

[127] The Moving Parties counter that the experts have candidly admitted that they have no knowledge of whether or not the Catalyst Parties actually hold assets in those jurisdictions, and that, apart from certain currency controls, there are no meaningful limits on the removal of assets out of those jurisdictions. As such, the Moving Parties argue, the fact that assets in those jurisdictions may be notionally exigible is of little value; the hypothetical effort to attach and obtain assets, absent control on moving those assets to yet another jurisdiction, becomes an empty and endless game of “whack-a-mole”.

[128] In my view this assertion, that hypothetical assets may prove difficult to harness, in the absence of any clear evidence of an intention to shield those assets from judgment, does not meet the stringent threshold to show irreparable harm.

[129] As the Catalyst Parties put it, fairly in my view, referencing Kimmel J.’s decision in Khan v. Coloma, 2019 ONSC 7202, the “fact that a moving party may need to pursue ‘normal means to enforce any judgment they may obtain against a responding party is not the type of irreparable harm that is contemplated to satisfy the irreparable harm prerequisite for an interlocutory injunction”.

[130] The Catalyst Parties elaborate, citing the Supreme Court of Canada in Aetna, that “The mere fact that a moving party might have difficulty or incur expense enforcing a judgment outside of Ontario does not entitle that party to a Mareva injunction.” In Aetna, the court said:

“The gist of the Mareva action is the right to freeze exigible assets when found within the jurisdiction, wherever the defendant may reside, providing, of course, there is a cause between the plaintiff and the defendant which is justiciable in the courts of England. However, unless there is a genuine risk of disappearance of assets, either inside or outside the jurisdiction, the injunction will not issue.”

[131] Given my findings about the Catalyst Parties’ assets, I conclude that the Moving Parties’ evidence also falls short of showing irreparable harm.

The Balance of Convenience Favours the Catalyst Parties

[132] To similar effect, given my findings that there remain considerable assets in Ontario to satisfy any judgment that the moving parties may obtain, I see no basis to tie up assets of the Catalyst Parties pending a potential judgment, and find that to do so would inappropriately inconvenience the Catalyst Parties.

[133] The Moving Parties maintain that, given their position that “only” $50 million of the Catalyst Parties’ assets should be enjoined, and given that the Catalyst Parties appear to possess assets worth multiples of that amount, the inconvenience to them is minimal. They argue that any such inconvenience is considerably outstripped by the inconvenience to the Moving Parties of having potentially to hunt assets around the globe to execute their judgments if and when obtained.

[134] If there was persuasive evidence before me of an ongoing plan to remove assets from the jurisdiction in order to shield them from judgment, and persuasive evidence of a high risk that any judgment would thereby prove to be a Pyrrhic victory, the outcome might be different. On this record, however, I find that the balance of convenience favours the Catalyst Parties and the status quo.

The Undertaking as to Damages

[135] There is also a debate about the quality and sufficiency of the West Face Parties’ undertaking as to damages, and in particular a concern about the fact that the undertaking was initially given only to Mr. Glassman and not to Catalyst. By the time of the motion before me, that deficiency had been addressed, and the undertaking expanded to cover both defendants.

[136] My initial impression is that, had I found a basis for injunctive relief on all other parameters, the amended undertaking, while not optimal, likely could have survived scrutiny. Insofar as in my view the West Face Parties have fallen short on other aspects of the test, I will not apply that scrutiny to the proposed undertaking at this stage.

Problems with Mr. Langstaff’s Motion

[137] The parallel motion by Mr. Langstaff suffers all of the same shortcomings as that of the West Face Parties.

[138] In addition, whereas I found that the West Face Parties have demonstrated a strong prima facie case, I am not persuaded that Mr. Langstaff has done so.

[139] That is not to say that I have concluded that Mr. Lanstaff’s claim will inevitably fail at trial. Rather, I find that its prospects are less clear cut than those of the West Face Parties, such that he does not, at this point, meet the high threshold of strong prima facie case.

Conclusion

[140] For these reasons, both motions must be dismissed.

[141] While I stand to be corrected given the thousands of pages in the record before me, I do not see costs outlines filed by any party on the motion.

[142] The Catalyst Parties are clearly the successful parties on this motion, and would therefore notionally be entitled to their costs.

[143] Normally of course it is desirable to fix and award costs at the time they are incurred.

[144] In this case, I should say that my inclination would be to make the award of costs in favour of the Catalyst Parties in any event of the cause at trial.

[145] I am inclined that way because, as set out above, I believe that the West Face Parties in particular, have a strong likelihood of success at trial. In addition, while I have found that the regrettable conduct of the Catalyst Parties is not a basis to infer intent to shield assets, in my view that conduct is a basis to decline, or in this case to defer, an award of costs in their favour.

[146] My hope is that with that (admittedly limited) guidance, the parties can reach an agreement about costs of this motion. If not, I may be spoken to about setting up a structure within which to consider the parties’ submissions on that topic.

W.D. BLACK, J.

Date: April 29, 2024