Waxman v. Waxman et al., (2007) 223 O.A.C. 375 (CA)

• Judge: Weiler, MacPherson and LaForme, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: April 05, 2007
• Jurisdiction: Ontario
• Citations: (2007), 223 O.A.C. 375 (CA);2007 ONCA 326

Waxman v. Waxman (2007), 223 O.A.C. 375 (CA)

MLB headnote and full text

Temp. Cite: [2007] O.A.C. TBEd. MY.007

Morris J. Waxman (applicant/appellant) v. Chester Waxman , Robert Waxman, Gary Waxman, Warren Waxman, Lightning Distribution Inc., CHW Holdings Inc., Chesterton Investments Limited, Gawix Financial Corporation, Waxtek Metals Inc., Bailey Waxman, I. Waxman & Sons Limited and Chester Waxman, Wayne Linton and Gary Waxman in their capacities as Trustees of the Chester Waxman Family Trust (respondent)

Application under Sections 106, 207 and 248 of the Business Corporations Act (Ontario)

(C45779; 2007 ONCA 326)

Indexed As: Waxman v. Waxman et al.

Ontario Court of Appeal

Weiler, MacPherson and LaForme, JJ.A.

May 2, 2007.

Summary:

This matter arose in the context of multiple and complex litigation between two brothers (Morris and Chester) over ownership of a family business. An order was issued freezing all of the assets of Chester and his two sons, except for $100,000 per month which was to be paid out for their employment. Chester and his sons were also allowed to use the frozen funds to pay legal fees and obtained an order allowing him to obtain $370,000 for that purpose - see [2006] O.T.C. 598. Waxman appealed.

The Ontario Court of Appeal allowed the appeal.

Practice - Topic 3381

Interim proceedings - Preservation of property - Property under preservation order - Use of - This matter arose in the context of multiple and complex litigation between two brothers (Morris and Chester) over ownership of a family business - An order was issued freezing all of the assets of Chester and his two sons, except for $100,000 per month which was to be paid out for their employment - Chester and his sons were also allowed to use the frozen funds to pay legal fees and obtained an order allowing him to obtain $370,000 for that purpose - Waxman appealed - The Ontario Court of Appeal allowed the appeal - The court discussed the test to be applied to determine whether frozen funds could be accessed to pay legal fees - In this case, Chester did not establish that he had no assets available to him to pay for his legal fees other than the frozen funds.

Cases Noticed:

Canadian Imperial Bank of Commerce v. Credit Valley Institute of Business and Technology et al., [2003] O.T.C. 7 (S.C.), refd to. [para. 18].

Little Sisters Book and Art Emporium v. Minister of National Revenue, (2007), 356 N.R. 83; 253 B.C.A.C. 1; 388 W.A.C.1; 2007 SCC 2, refd to. [para. 29].

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 30].

Insurance Corp. of British Columbia v. Dragon Driving School Canada Ltd. et al., [2004] B.C.T.C. 1580 (S.C.), refd to. [para. 41].

Counsel:

Richard Swan and Gideon Forrest, for the appellant;

Edward Babin, for the respondent.

This appeal was heard on April 5, 2007, before Weiler, MacPherson and LaForme, JJ.A., of the Ontario Court of Appeal. The following reasons were released for the court by MacPherson, J.A., on May 2, 2007.