Marine Atlantic Inc. v. Blyth
A-642-93
Robertson J.A.
13/12/93
5 pp.
Appeal and cross-appeal from Trial Division order granting Mareva injunction -- In granting injunction, Motions Judge considering existence of strong prima facie case, defendant's financial difficulties, genuine risk plaintiff may be unable to execute judgment if successful -- Order preventing defendant from disposing of, encumbering, releasing or dispossessing itself of any assets or from removing them from Canada until trial of matter -- By cross-appeal plaintiff seeking order for security for damages -- Appeal allowed; cross-appeal dismissed -- No evidence justifying finding genuine risk of corporate defendants' assets being removed or disposed of prior to judgment in main action being granted -- Case law governing Mareva injunctions not concerned with possibility potential judgment debtors may find themselves insolvent or declared bankrupt prior to plaintiff obtaining judgment -- Evidence of financial difficulties insufficient to support grant of extraordinary remedy sought -- Overriding consideration whether defendant threatens to so arrange assets as to defeat adversary in attempt to recover from defendant: Aetna Financial Services Ltd. v. Feigelman et al., [1985] 1 S.C.R. 2 -- Only question whether any evidence before Motions Judge reasonably leading to conclusion corporate defendants about to dispose of assets to avoid judgment -- Only relevant evidence relating to use of three inflatable boats for use outside Canada in usual course of business i.e. arranging international cruises -- No evidence defendants about to dispose of chattels for purpose of avoiding judgment -- Removal of assets from jurisdiction by resident defendant in normal course of business, without any suggestion of intent to defeat eventual judgment recovery by plaintiff, insufficient to support Mareva injunction -- Motions Judge also erred in failing to identify corporate appellants' assets as precisely as possible -- Chitel et al. v. Rothbart et al. (1982), 69 C.P.R. (2d) 62 (Ont. C.A.) holding Court should establish assets with as much precision as possible so that if Mareva injunction warranted, directed towards specific assets or bank accounts -- Unusual, even punitive, to tie up all assets and income of defendant who is citizen and resident within jurisdiction -- Breadth of order granted by Motions Judge clearly preventing defendants from carrying on in ordinary course of business -- In absence of grounds justifying issuance of Mareva injunction, no authority to make order for security for damages.