British Columbia (Attorney General) v. Malik et al., (2011) 303 B.C.A.C. 1 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 15, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2011), 303 B.C.A.C. 1 (SCC);2011 SCC 18;[2011] SCJ No 18 (QL);[2011] 1 SCR 657;414 NR 332;303 BCAC 1

B.C. (A.G.) v. Malik (2011), 303 B.C.A.C. 1 (SCC);

    512 W.A.C. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2011] B.C.A.C. TBEd. AP.074

Her Majesty The Queen in Right of the Province of British Columbia as represented by the Attorney General of British Columbia (appellant) v. Ripudaman Singh Malik, Raminder Malik and Jaspreet Singh Malik (respondents)

(33266; 2011 SCC 18; 2011 CSC 18)

Indexed As: British Columbia (Attorney General) v. Malik et al.

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

April 21, 2011.

Summary:

The Province of British Columbia brought an action against the defendants, together with three other members of their family and four corporations owned by them, to recover monies it had advanced to fund defence costs for a trial known as the Air India trial. The Province obtained two ex parte orders (a Mareva injunction and an Anton Piller order). The defendants applied to have the orders set aside or varied.

The British Columbia Supreme Court, in a decision reported at [2008] B.C.T.C. Uned. 659, dismissed the applications with the exception of a variation to the Mareva injunction increasing the amount of funds available to the defendants for the purpose of paying legal fees. The defendants appealed.

The British Columbia Court of Appeal, in a decision reported at 270 B.C.A.C. 178; 454 W.A.C. 178, allowed the appeal to the extent of setting aside the Mareva injunction as against the defendants other than Malik and setting aside the Anton Piller order in its entirety. The Province appealed the refusal of the Anton Piller order.

The Supreme Court of Canada allowed the appeal. The Anton Piller order was properly granted.

Evidence - Topic 4252

Witnesses - Privilege - Lawyer-client communications - Loss of privilege - Allegation of fraud - [See third Practice - Topic 3379.2 ].

Practice - Topic 3378.9

Interim proceedings - Preservation of property - Anton Piller Order - General - The Province of British Columbia brought an action against the defendants, together with three other members of their family and four corporations owned by them, to recover monies it had advanced to fund defence costs for a trial known as the Air India trial - The Province obtained an ex parte Anton Piller order - The defendants applied to have the order set aside or varied - A chambers judge dismissed the application - The Court of Appeal set aside the Anton Piller Order - The Supreme Court of Canada stated that "[a]n Anton Piller order is an exceptional remedy and should only be granted on clear and convincing evidence. It is a highly intrusive measure that, unless sparingly granted and closely controlled, is capable of causing great prejudice and potentially irremediable loss. The fact the Province was the applicant here conferred no special Crown privilege or priority. The Province comes before the Court as an ordinary civil litigant and its application should be judged by the same rules as any other litigant, as should be the merits of the position taken by the Malik family [defendants]." - See paragraph 5.

Practice - Topic 3379

Interim proceedings - Preservation of property - Anton Piller Order - Evidence - Malik was charged in connection with the 1985 Air India bombing - The provincial Crown agreed to pay for Malik's defence costs and Malik agreed to transfer all of his assets to the Crown (the agreement) - In January 2003, being of the view that Malik was not living up to his undertakings, the Crown notified him that it would terminate his defence funding unless he executed an indemnity - Malik brought an application seeking relief pursuant to the decision in R. v. Rowbotham (Ont. C.A. 1988), seeking to compel the Province to provide funding or to stay the criminal proceedings - Stromberg-Stein, J., held that Malik had not demonstrated that he was financially eligible for funding and dismissed his application (the Rowbotham decision) - The Crown brought an action against Malik and others to recover monies it had advanced to fund defence costs for the Air India trial - The Crown obtained an ex parte Anton Piller order - The defendants applied to have the order set aside or varied - A chambers judge dismissed the application - The Court of Appeal set aside the Anton Piller Order - The Crown appealed - At issue was the use in the Anton Piller proceedings of the Rowbotham decision - The Supreme Court of Canada held that the Rowbotham decision was properly before the chambers judge - The earlier proceeding had been initiated by Malik and involved the other defendants - The same series of family transactions, and allegations of asset manipulation, had earlier been examined - The underlying issue in the Rowbotham decision, as it was here, was whether the Malik family was playing games with the Province (and the B.C. courts) with respect to their financial affairs - The question in the Rowbotham decision was whether Malik was without financial resources to fund his defence - The issue in this case was whether Malik was without funds to pay his debt to the Province as a result of asset manipulation and fraudulent dealings within the Malik family as initially explored in the Rowbotham decisions and had continued ever since - These issues could not be answered at an eventual trial without access to the underlying documents - The history of dealings between the Province and the Malik family justified serious concern whether such evidence would be made available by the Malik family in the ordinary course of discovery - A prior judicial decision between the same or related parties or participants on the same or related issues was not another controversy over hearsay or opinion evidence - The court's earlier decision was a judicial pronouncement after the contending parties had been heard - It had substantial effect on their legal rights - See paragraphs 42 to 52.

Practice - Topic 3379.2

Interim proceedings - Preservation of property - Anton Piller Order - When available - The Province of British Columbia brought an action against the defendants, together with three other members of their family and four corporations owned by them, to recover monies it had advanced to fund defence costs for a trial known as the Air India trial - The Province obtained an ex parte Anton Piller order - The defendants applied to have the order set aside or varied - A chambers judge dismissed the application - The Court of Appeal set aside the Anton Piller Order - An issue was raised whether Anton Piller orders were available in British Columbia to preserve evidence relevant to a dispute as opposed to preserving property that was the subject matter of the dispute - The decision in Celanese Canada Inc. v. Murray Demolition Corp. (SCC 2006) was an appeal from Ontario, and a difference was noted in wording between rule 46(1) of the British Columbia Supreme Court Rules, which dealt with preservation of "property that is the subject matter of a proceeding or as to which a question may arise", and rule 45.01 of the Ontario Rules of Civil Procedure which dealt somewhat more broadly with the preservation of "property in question in a proceeding or relevant to an issue in a proceeding" - The Supreme Court of Canada agreed with Tysoe, J.A., that Anton Piller orders for the preservation of evidence were available in British Columbia under the inherent jurisdiction of the Superior Court - Accordingly, the particular wording of British Columbia's rule 46(1) did not assist the defendants - See paragraph 31.

Practice - Topic 3379.2

Interim proceedings - Preservation of property - Anton Piller Order - When available - The Province of British Columbia brought an action against the defendants, together with three other members of their family and four corporations owned by them, to recover monies it had advanced to fund defence costs for a trial known as the Air India trial - The Province obtained an ex parte Anton Piller order - The Supreme Court of Canada affirmed the Anton Piller Order - The Province demonstrated a strong prima facie case to establish Malik's debt and the defendants' conspiracy to defraud the Province and to assist Malik to avoid his obligations under the agreement - The defendants' conduct was serious - There was convincing evidence that incriminating documentation behind registered and unregistered property transfers was in the possession of the defendants, especially Jaspreet Malik who held himself out as his father's "legal counsel in relation to financial affairs" - Given a history of refusal to provide proper disclosure of financial information despite Malik's agreement (and a court order) to do so, it was open to the chambers judge to conclude that the defendants might if forewarned continue the pattern of refusal and obfuscation by destroying relevant material "before the discovery process can do its work" - See paragraphs 53 to 62.

Practice - Topic 3379.2

Interim proceedings - Preservation of property - Anton Piller Order - When available - The Province of British Columbia brought an action against the defendants, together with three other members of their family and four corporations owned by them, to recover monies it had advanced to fund defence costs for a trial known as the Air India trial - The Province obtained an ex parte Anton Piller order - The defendants applied to have the order set aside or varied - A chambers judge dismissed the application - The Court of Appeal set aside the Anton Piller Order - Jaspreet Malik objected to the seizure at his law offices on the grounds of solicitor-client privilege - The Supreme Court of Canada rejected the objection - The allegation was that Jaspreet was a party to the alleged fraud and conspiracy, and therefore no privilege attached to the relevant documents - See paragraphs 63 to 65.

Cases Noticed:

R. v. Rowbotham et al. (1988), 25 O.A.C. 321; 41 C.C.C.(3d) 1 (C.A.), refd to. [para. 14].

Celanese Canada Inc. v. Murray Demolition Corp. et al., [2006] 2 S.C.R. 189; 352 N.R. 1; 215 O.A.C. 266; 2006 SCC 36, appld. [para. 29].

Anton Piller KG v. Manufacturing Processes Ltd., [1976] 1 Ch. 55 (C.A.), refd to. [para. 31].

Yousif v. Salama, [1980] 3 All E.R. 405 (C.A.), refd to. [para. 31].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 38].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 40].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al. (2001), 149 O.A.C. 213; 55 O.R.(3d) 541 (C.A.), affd. [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 40].

Del Core v. College of Pharmacists (Ont.) (1985), 10 O.A.C. 57; 51 O.R.(2d) 1 (C.A.), refd to. [para. 43].

Saskatoon Credit Union Ltd. v. Central Park Enterprises Ltd. (1988), 47 D.L.R.(4th) 431 (B.C.S.C.), refd to. [para. 43].

Hollington v. F. Hewthorn & Co. - see Hollington v. Hewthorn (F.) & Co.

Hollington v. Hewthorn (F.) & Co., [1943] 1 K.B. 587 (C.A.), dist. [para. 44].

Hall (Arthur J.S.) & Co. v. Simons, [2002] 1 A.C. 615; 258 N.R. 1; [2000] UKHL 38, refd to. [para. 44].

Jorgensen v. News Media (Auckland) Ltd., [1969] N.Z.L.R. 961 (C.A.), refd to. [para. 44].

R. v. Harvey - see Harvey v. R.

Harvey v. R., [1901] A.C. 601 (P.C.), refd to. [para. 44].

Memphis Rogues Ltd. v. Skalbania (1982), 38 B.C.L.R. 193 (C.A.), refd to. [para. 51].

Litchfield v. Darwin et al., [1997] B.C.T.C. Uned. 109; 29 B.C.L.R.(3d) 203 (S.C.), refd to. [para. 51].

Capitanescu et al. v. Universal Weld Overlays Inc. et al. (1996), 192 A.R. 85; 46 Alta. L.R.(3d) 203 (Q.B.), refd to. [para. 59].

Catalyst Partners Inc. v. Meridian Packaging Ltd. et al. (2007), 417 A.R. 7; 410 W.A.C. 7; 76 Alta. L.R.(4th) 264; 2007 ABCA 201, refd to. [para. 59].

Authors and Works Noticed:

Cross and Tapper on Evidence (12th Ed. 2010), pp. 109, 110 [para. 44].

McCormick, Charles Tilford, Handbook on the Law of Evidence (5th Ed. 1999), vol. 2, § 295 [para. 38]; p. 974 [para. 44].

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle, K., Sopinka, Lederman & Bryant: The Law of Evidence in Canada (3rd Ed. 2009), §§ 19.158 [para. 44]; 19.177 [para. 42].

Counsel:

Jonathan Noel Eades, Matthew S. Taylor and Robert N. Hamilton, for the appellant;

Bruce E. McLeod, for the respondents, Ripudaman Singh Malik and Raminder Malik;

Jaspreet Singh Malik, on his own behalf.

Solicitors of Record:

Ministry of the Attorney General, Victoria, B.C., for the appellant;

Bruce E. McLeod, Vancouver, B.C., for the respondents, Ripudaman Singh Malik and Raminder Malik;

Malik Law Corporation, Surrey, B.C., for the respondent, Jaspreet Singh Malik.

This appeal was heard on October 15, 2010, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The following judgment of the Supreme Court was delivered in both official languages by Binnie, J., on April 21, 2011.