Shawn Tock

The defendants brought a motion for leave to appeal a decision denying their request to vary a Mareva order to permit them access to the proceeds from the sale of their home to pay legal fees.

The court found that the proposed appeal did not involve matters of public importance transcending the immediate interests of the parties, nor were there conflicting decisions on the issue.

The motion for leave to appeal was dismissed.

This was a costs decision following an earlier order dismissing the action against one defendant, lifting a stay imposed after a security for costs order, and varying a timetable.

The court declined to make any costs order regarding the remaining defendants because the action continued against them and the record did not permit an assessment of merit.

The dismissed defendant was treated as successful in the action, particularly given the serious unwithdrawn allegations of deceptive conduct, bad faith, reprehensible behaviour, and fraud-like conduct.

Relying on the principle that unsubstantiated fraud or dishonesty allegations can justify elevated costs, the court awarded that defendant substantial indemnity costs fixed at $20,000.

The plaintiffs sought to preserve assets allegedly traceable to funds stolen by a former controller and bookkeeper.

After disclosure and a Mareva injunction, the defendants asserted that they lacked sufficient funds to pay expenses and legal counsel.

Applying the four-part test for variation of freezing orders, the court held that the defendants failed to provide reliable financial evidence, failed to establish other assets were unavailable, and failed to show the frozen assets were from a non-proprietary source.

The motion was dismissed, with written costs submissions invited.

The appellants appealed from two motions for summary judgment granted under Rule 76.

The Court of Appeal allowed the appeal, finding that the motion judge erred by failing to explain how summary judgment could be awarded given the respondent's conflicting evidence on the claimed amount without cross-examination.

The motion judge also improperly ignored the responding affidavit that contested the respondent's accounting.

The summary judgment was set aside and the matter was sent to trial.