establishing prima facie case that appellant had committed fraud and
indicating that he had dissipated assets — Motion judge not erring in
finding that it was just and equitable to grant Mareva injunction.
B was the chief executive officer of S Corp., a Canadian corporation with assets
predominantly located in the People’s Republic of China. He brought an action
alleging that C had perpetrated a significant fraud on S Corp., its creditors and
investors. S Corp. applied under the Companies’ Creditors Arrangement Act,
R.S.C. 1985, c. C-36 for an order approving a plan of compromise and reorganization. The court sanctioned the plan, and B was appointed as trustee of the SFC
Litigation Trust, which was assigned all of the litigation rights of S Corp. Pursuant to the plan, substantially all of the assets of S Corp. were transferred to
E Ltd. The situs of the trust was in Hong Kong. B brought a motion for a worldwide Mareva injunction against C. The motion was granted. A motion by C to
vary, set aside or discharge the injunction was dismissed. C appealed.
Held, the appeal should be dismissed.
Per Leitch J. (Sachs J. concurring): The motion judge did not err in holding
that an Ontario court may grant a Mareva injunction where the defendant has
no assets in this jurisdiction. The evidence before the motion judge established a
prima facie case that C had committed fraud. It also indicated that he had dissipated assets and that the granting of a Mareva injunction in Ontario could
be regarded as an important step to similar freezing orders being obtained in
respect of C’s assets in Hong Kong. The motion judge did not err in finding it just
and convenient to issue the Mareva injunction.
The motion judge did not err in holding that undertakings of B and E Ltd. were
sufficient to provide security for costs and damages.
Per Pattillo J. (dissenting): The motion judge erred in granting the Mareva
injunction given that C had no assets in Ontario. The motion judge also erred in
concluding that the undertaking of E Ltd. together with the undertaking of
B were sufficient security for C’s damages or costs.
Chitel v. Rothbart (1982), 39 O.R. (2d) 513,  O.J. No. 3540, 141 D.L.R.
(3d) 268, 30 C.P.C. 205, 69 C.P.R. (2d) 62, 17 A.C. W.S. (2d) 200 (C.A.), apld
R. v. Consolidated Fastfrate Transport Inc. (1995), 24 O.R. (3d) 564,  O.J.
No. 1855, 125 D.L.R. (4th) 1, 83 O.A.C. 1, 99 C.C.C. (3d) 143, 40 C.P.C. (3d) 160,
61 C.P.R. (3d) 339, 27 W.C.B. (2d) 528 (C.A.), consd
Other cases referred to
2057552 Ontario Inc. v. Dick,  O.J. No. 2545, 2015 ONSC 3182 (S.C.J.);
Aetna Financial Services Ltd. v. Feigelman,  1 S.C.R. 2,  S.C.J. No. 1,
15 D.L.R. (4th) 161, 56 N.R. 241,  2 W.W.R. 97, 32 Man. R. (2d) 241,
29 B.L.R. 5, 55 C.B.R. (N.S.) 1, 4 C.P.R. (3d) 145, J.E. 85-192, EYB 1985-150475,
29 A.C.W.S. (2d) 267; Chesapeake and Ohio Ry. Co. v. Ball,  O.R. 843,
 O.J. No. 693,  O. W.N. 801 (H.C.J.); Croatian (Toronto) Credit Union
Ltd. v. Vinski,  O.J. No. 700, 2010 ONSC 1197 (S.C.J.); Dadourian Group
Int. Inc. v. Simms,  1 W.L.R. 2499,  3 All E.R. 48,  2 Lloyd’s
Rep. 354,  EWCA Civ 399 (C.A.); Derby & Co. v. Weldon (No. 2), 
2 W.L.R. 276,  1 All E.R. 1002 (C.A.); DiMenza v. Richardson Greenshields
of Canada Ltd. (1989), 74 O.R. (2d) 172,  O.J. No. 3231, 43 C.P.C.
(2d) 87 (Div. Ct.); Lister & Co. v. Stubbs (1890), 45 Ch. D. 1, [1886-90]
All E.R. Rep. 797 (C.A.); Mooney v. Orr,  B.C.J. No. 2652,  3 W. W.R.
116, 100 B.C.L.R. (2d) 335, 33 C.P.C. (3d) 31, 51 A.C.W.S. (3d) 704 (S.C.);