Second Part of Test: Balance of Convenience

• Author: David A. Crerar
• Pages: 69-88

CHAPTER

5

Second

Part

of

Test:

Balance

of

Convenience

A.

GENERALLY

Relevant

factors

to

be

considered

under

the

second

prong

of

the

test

for

a

Mareva

order

include

the

following:

1)

residency

of

the

defendant

2)

enforcement

rights

of

judgment

creditors

in

the

jurisdiction

where

the

defendant

’

s

assets

are

located

3)

amount

of

the

claim

4)

history

of

the

defendant

’

s

conduct

5)

evidence

showing

the

existence

of

assets

within

the

jurisdiction

or

outside

6)

evidence

showing

a

real

risk

of

disposal

or

dissipation

of

assets

to

render

a

judgment

nugatory

7)

evidence

of

irreparable

harm

8)

strength

of

the

plaintiff

’

s

case

9)

nature

of

the

transaction

giving

rise

to

the

action

10)

risks

inherent

in

the

transaction

11)

defendant

’

s

assets

12)

evidence

that

the

injunction

would

have

a

material

adverse

effect

on

an

innocent

nonparty

567

Hornby

Apartments

v

Le

Soleil

Hospitality,

2009

BCSC

711

at

para

15

ICBC

v

Patko,

2008

BCCA

65

at

paras

25-30

Mooney

v

Orr

(No

2)

(1994),

100

BCLR

(2d)

335

at

paras

44-45

(SC)

69

70

•

Mareva

and

Anton

Piller

Preservation

Orders

in

Canada:

A

Practical

Guide

Sociedade-de-Fomento

Industrial

Private

v

Pakistan

Steel

Mills

Corp

(Private),

2013

BCSC

1304

at

para

32,

aff'd

2014

BCCA

205

at

para

45,

leave

to

appeal

to

SCC

refused,

[2014]

SCCA

No

342

First

Majestic

Silver

v

Santos,

2014

BCSC

1564

at

para

68

Hans

v

Volvo

Trucks

North

America,

2014

BCSC

1123

at

paras

55

and

124

Oesterlund

v

Pursglove,

2014

ONSC

2727

at

paras

27-39

The

balance

of

fairness

and

justice

between

the

parties

will

gen



erally

favour

the

order

as

security

for

a

plaintiff

’

s

potential

judgment

where

•

the

amount

proposed

to

be

frozen

is

relatively

small

such

as

not

to

be

particularly

burdensome

to

the

defendant;

•

the

defendant

fails

to

adduce

acceptable

evidence:

»

of

its

financial

condition;

»

that

the

defendant

carries

on

an

ongoing

business;

or

»

that

the

funds

sought

to

be

frozen

are

required

in

the

ordin



ary

course

of

its

business;

•

there

is

uncertainty

as

to

the

identity

and

financial

probity

of

the

defendant

’

s

shareholders;

•

there

is

a

high

prospective

cost

of

enforcing

remedies

elsewhere.

Gateway

Village

Investments

Ltd

vSybra

Food

Services

Ltd

(1987),

12

BCLR

(2d)

234

at

paras

26-27

(SC),

cited

in

Mooney

v

Orr

(No

2)

(1994),

100

BCLR

(2d)

335

at

para

41

(SC)

Even

if

the

applicant

makes

out

a

strong

prima

facie

or

good

argu



able

case,

it

is

an

error

for

the

court

not

to

consider

thoroughly

the

second

prong

of

the

test:

the

balance

of

convenience.

First

Majestic

Silver

v

Santos

(2009),

66

CPC

(6th)

108

at

para

23

(BCCA)

There

is

no

strict

list

of

factors

that

enter

into

the

analysis

of

the

test.

Rather,

each

case

is

decided

on

its

own

factual

matrix

by

way

of

the

flexible

approach.

Relevant

factors

in

one

case

maybe

less

helpful

in

the

analysis

of

others.

Blue

Horizon

Energy

v

Ko

Yo

Development,

2012

BCSC

58

at

para

30

The

granting

of

a

Mareva

order

is

both

an

equitable

and

a

dis



cretionary

remedy.

Even

if

all

of

the

constituent

elements

are

estab



lished,

the

court

may

still

refuse

to

grant

an

order

if

it

has

concerns

about

the

applicant

’

s

case

or

conduct.

Royal

Bank

of

Canada

v

Boussoulas,

2012

ONSC

2070

at

para

55