Tuesday, September 18, 2012

Is a Mareva and other relief restricted to the Court of Appeal pending an appeal? Perhaps not

In Alfano v. Piersanti, 2012 ONCA 612 the parties engaged in lengthy and complex litigation. Following the appeal of one decision a new case was started seeking relief including a Mareva injunction and a receiver. That relief was granted by the Superior Court and the issue arose whether such relief was restricted to the Court of Appeal because of the stay pending appeal. The Court of Appeal said not because there was a new action; however the language of the Court suggests such would also be the result even if there was no new action:

[14]       Firstly, the Impugned Order was not a "step" under the Trial Judgment.  The relief granted by Newbould J. was in a separate action with different parties and different causes of action which, as I have said, included reliance on theFraudulent Conveyances Act and the Assignments and Preferences Act

[15]       Secondly, the Impugned Order was protective and preservative in nature. Cumming J. made this observation in his endorsement. The only relief sought on the motion before Newbould J. related to the preservation of assets pending determination of the respondents' new action.  The Impugned Order therefore did not amount to enforcement of the Trial Judgment. I agree with the respondents' submission that the effect of the stay of the Trial Judgment was to suspend their enforcement rights.  However, their rights as judgment creditors remained intact pending appeal. 

[16]       Furthermore, the appointment of a receiver and the granting of a Marevainjunction are not necessarily orders for enforcement in any event. Indeed, in this case, the receiver was appointed pursuant to s.101 of the Courts of Justice Act.

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