Special Procedural and Ethical Requirements: Disclosure
| Author | David A. Crerar |
| Pages | 112-128 |
CHAPTER
8
Special
Procedural
and
Ethical
Requirements:
Disclosure
A.
BASIC
PRINCIPLE:
FULL
AND
FRANK
DISCLOSURE
Since
Mareva
orders
are
usually
sought
ex
parte,
the
obligation
to
make
full
and
frank
disclosure
is
especially
important.
Failure
to
dis
close
accurate,
relevant
facts
can
result
in
the
discharge
of
the
injunc
tion
even
if
those
facts
would
not
have
prevented
the
issuance
of
the
order
in
the
first
instance.
Chitel
v
Rothbart
(1982),
141
DLR
(3d)
268
at
275
(Ont
CA)
Droit
de
la
famille
—
147717,
2014
QCCS
3425
at
para
22,
leave
to
appeal
refused
(sub
nom
Droit
de
la
famille
—
142160),
2014
QCCA
1580
Bennett
Estate
v
Iran
(2013),
368
DLR
(4th)
500
at
para
47
(Ont
SCJ)
O2
Electronics
v
Sualim,
2014
ONSC
5050
at
para
74
United
States
of
America
v
Friedland,
[1996]
OJ
No
4399
at
paras
26-30
(Gen
Div)
Mooney
v
Orr
(No
2)
(1994),
100
BCLR
(2d)
335
at
para
19
(SC)
BKB
Construction
v
PT
Pellta
Cengkareng
Paper,
2011
BCSC
1805
at
para
37
Promo-Ad
&
Associates
v
Keller,
2013
ONSC
1633
at
para
54
Arena
Corp
v
Schroeder,
[2003]
EWHC1089
(Ch)
at
para
213
The
duty
of
full
and
frank
disclosure
is
especially
important
with
respect
to
Mareva
orders
because,
by
their
very
nature,
they
are
liable
to
cause
substantial
prejudice
to
the
defendant.
United
States
of
America
v
Friedland
(1996),
30
OR
(3d)
568
at
para
35
(Gen
Div)
Regalcraft
Homes
v
Salvador!,
2014
ONSC
6990
at
paras
49
and
51
On
an
ex
parte
application,
relevant
principles
of
full
and
fr
ank
disclosure
include
the
following:
112
Special
Procedural
and
Ethical
Requirements:
Disclosure
•
113
1)
The
applicant
must
make
full
and
frank
disclosure
of
all
material
facts.
2)
A
material
fact
is
one
that
may
affect
the
outcome
of
the
applica
tion.
3)
It
is
for
the
court
to
determine
whether
a
fact
is
material,
not
the
applicant
or
her
legal
advisers.
4)
The
duty
to
disclose
applies
not
only
to
facts
that
are
known
but
also
to
those
facts
that
ought
to
have
been
known
had
proper
in
quiries
been
made.
5)
The
extent
of
the
inquiries
required
depends
on
the
circumstances
of
the
particular
case.
6)
If
material
nondisclosure
is
established,
the
court
may
deprive
the
applicant
of
any
advantage
gained
because
of
the
breach
of
the
duty
to
disclose.
7)
The
failure
to
provide
such
full
and
frank
disclosure
will
allow
the
court
to
set
aside
the
order
without
regard
to
the
merits
of
the
application.
8)
In
deciding
whether
the
order
should
be
set
aside,
the
court
must
consider
the
importance
of
the
nondisclosed
fact
to
the
issues
that
were
to
be
decided
by
the
judge
at
the
ex
parte
hearing.
9)
That
the
nondisclosure
was
innocent
is
an
important
consider
ation
but
not
decisive
as
to
whether
the
breach
is
such
that
the
order
should
be
set
aside.
10)
Not
every
omission
necessarily
results
in
the
order
being
set
aside.
Pierce
v
Jivraj,
2013
BCSC
1850
at
para
37
Brink's-Mat
v
Elcombe,
[1988]
1
WLR
1350
at
1356-57
(CA)
What
is
“
material
”
is
defined
broadly.
PJSC
Tatneft
v
Bogolyubov,
[2016]
EWHC
2816
(Comm)
at
para
122
The
duty
of
full
and
frank
disclosure
may
still
be
important
when
a
Mareva
order
is
brought
with
notice,
because
of
the
drastic
effect
that
such
an
order
can
have
on
the
party
against
which
it
is
made.
Thus,
the
fact
that
a
few
days
’
notice
has
been
given
to
the
defendant
does
not
necessarily
lessen
the
importance
of
full
and
frank
disclosure.
Belair
LLC
v
Basel
LLC,
[2009]
EWHC
725
(Comm)
at
para
44
MFC
Structures
v
Mady
Collier
Centre,
2015
ONSC
2111
at
para
20
CEF
Holdings
v
Mundey,
[2012]
EWHC
1524
(QB)
at
paras
179-88
113
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