Thursday, July 5, 2012

Entitlement to have specific fund paid into Court

 Sadie Moranis Realty Corporation v. 1667038 Ontario Inc., 2012 ONCA 475, released today, deals with when a specific fund can be ordered paid into court prior to trial.  The case balances the Rule allowing for such payment with the principle that there should not be execution before judgment.  The Court holds:


[16]       The issue in this appeal is the test required by rule 45.02, and whether the appellant meets it in this case. To reiterate, rule 45.02 reads as follows:




45.02 Where the right of a party to a specific fund is in question, the court may order the fund to be paid into court or otherwise secured on such terms as are just.


[17]       Rule 45.02 is part of Rule 45 which, as its title suggests, provides for the interim preservation of property pending litigation. The Rule is a limited exception to the law’s deep-seated aversion to providing a plaintiff with execution before a trial. The risk of such an order, because of its invasive nature, is well explained by Sharpe J.A. in Injunctions and Specific Performance, looseleaf 3d ed. (Aurora: Canada Law Book, 2012), at para. 2.760:


Clearly, pre-trial execution of any kind poses definite problems. Attachment of assets or interference with disposition of assets will often constitute a serious interference with the defendant’s affairs. That interference may be more readily justified where the plaintiff’s right is specifically related to the asset in question. However, where the plaintiff asserts a general claim and looks to the assets only as a means of satisfying a likely or possible monetary judgment against the defendant, interference with the defendant’s assets is more difficult to justify.


[18]       In my view, the policy approach dictated by this caution must inform the test required by rule 45.02. In News Canada Marketing Inc. v. TD Evergreen, a Division of TD Securities Inc., [2000] O.J. No. 3705 (S.C.), at para. 14, Nordheimer J. put forward a test which does that, and which I would adopt:

I conclude therefore that the appropriate test for relief under rule 45.02 should require the plaintiff to establish that:


(a) the plaintiff claims a right to a specific fund;

(b) there is a serious issue to be tried regarding the plaintiff’s claim to that fund;

(c) the balance of convenience favours granting the relief sought by the plaintiff.


[19]       The first of these requirements, the one under special scrutiny in this appeal, faithfully reflects the language of rule 45.02. It requires that there be a specific fund readily identifiable when the order is sought. It also requires that the plaintiff assert a legal right to the specific fund as a claim in the litigation. While I do not find it to be a helpful descriptor, I think it is in this sense that past jurisprudence has sometimes described the specific fund as “earmarked to the litigation”.


[20]       The second and third requirements, though not centrally in issue in this case, are equally important in manifesting the policy behind the rule. They ensure that interference with the defendant’s disposition of assets is limited to cases where the plaintiff has a serious prospect of ultimate success, and there is something compelling on the plaintiff’s side of the scales, such as a real concern that the defendant will dissipate the specific fund, that is sufficient to outweigh the defendant’s freedom to deal with his or her property.


[21]       Framed in this way, the test will not be met where a plaintiff’s claim is for damages. That is so even if a specific fund is identifiable in the factual matrix of the litigation, because a claim for damages is not a claim to a legal right to that fund. In Asante Financial Management Ltd. v. Dixon (2004), 8 C.P.C. (6th) 57 (Ont. S.C.), Wilton-Siegel J. put it this way, at para. 28:


There is a subtle but important difference between an amount that may be owing to the plaintiff and a right of the plaintiff to a fund.


[22]       Where the test is met, the order secures the specific fund claimed by the plaintiff pending the outcome of the litigation. The order is distinguishable from a Mareva injunction (with its even stricter test), where the defendant is restrained from dealing with its own assets pending trial even though the plaintiff is not asserting a legal right to any of those assets.


[23]       Much of the argument in this court addressed the Divisional Court’s refinement of the first part of the test from News Canada Marketing Inc. The Divisional Court required that the plaintiff’s claim to the specific fund be proprietary in nature.

[24]       The Divisional Court was simply reflecting a notion that has crept into the rule 45.02 jurisprudence over the last decade, perhaps spurred by cases in which the claimed right to the specific fund was seen as clearly proprietary in nature (such as a claim of ownership) and therefore undoubtedly sufficient to meet the first part of the test. Where, however, the order is denied because the claimed right is not seen as proprietary a difficulty with the refinement arises.


[25]       One way to put that difficulty is that the language of the subrule does not require that the right to the specific fund claimed by the plaintiff be a proprietary right. The refinement is simply not true to the subrule.


[26]       Put another way, if the refinement (i.e. that the plaintiff’s claim be to a proprietary right to the specific fund) is seen to confine the plaintiff to only a certain sort of legal right, it would unjustifiably narrow the subrule to something less than the subrule provides for. If, on the other hand, the refinement is seen as not affecting the test as stated in the subrule, it adds nothing. Moreover, it risks diverting the proper inquiry into an analysis of whether the legal right claimed has a “proprietary dimension” or is “proprietary in nature” as several of the cases have described. Either way, the refinement is not justified.


[27]       In short, I do not think that rule 45.02 requires that the legal right to the specific fund claimed by the plaintiff be a proprietary right.


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