Wesley Randell McDowell

The defendants sought authorization to release additional funds held in trust to pay legal fees incurred in defending litigation involving multiple defendants.

The funds originated from encumbrances placed on residential properties pursuant to a prior consent order permitting borrowing to finance the legal defence of two defendants.

The court was required to determine the proper allocation of legal fees where work performed by counsel benefitted both those defendants and a co‑defendant who was not entitled to access the encumbered property funds.

Applying principles governing payment of legal fees from assets subject to proprietary injunctions, the court concluded that only part of the joint defence work could properly be charged to the trust funds.

The court ordered that the two defendants were entitled to recover 50% of the total legal fees, taxes, and disbursements from the trust account.

The plaintiff university brought a motion seeking to exclude a defendant from attending the out-of-court cross-examination of a witness whose affidavit supported allegations of fraud and a Mareva-style injunction.

The plaintiff argued the defendant’s presence could harm the witness’s mental health due to prior workplace intimidation and depression.

The court reaffirmed that parties have an inherent right to attend examinations and that exclusion requires proof of realistic and substantial cause, such as demonstrated intimidation or prejudice.

Finding no evidence of intimidation during the litigation and insufficient grounds to justify exclusion, the court dismissed the motion.

To ensure a fair and controlled examination environment, the court ordered the cross-examination to be video recorded.