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

JudgeWeiler, MacPherson and LaForme, JJ.A.
CourtCourt of Appeal (Ontario)
Case DateApril 05, 2007
JurisdictionOntario
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.

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18 practice notes
  • Ontario Court Of Appeal Summaries (March 11-15, 2019)
    • Canada
    • Mondaq Canada
    • March 28, 2019
    ...Canadian Imperial Bank of Commerce v Credit Valley Institute of Business & Technology, [2003] OJ No 40 (ONSC), Waxman v Waxman, 2007 ONCA 326, R v Bernardo (1997), 105 OAC 244 (CA) Colistro v. Tbaytel, 2019 ONCA 197 Keywords: Employment Law, Wrongful Dismissal, Constructive Dismissal, T......
  • Table of Cases
    • Canada
    • Irwin Books Civil Litigation
    • June 16, 2010
    ...176 Civil litigation 286 Waxman v. Waxman (2007), 223 O.A.C. 375, 42 C.P.C. (6th) 37, [2007] O.J. No. 1688 (C.A.) ......................................................................... 239 Web Offset Publications Ltd. v. Vickery (1998), 40 O.R. (3d) 526, [1998] O.J. No. 6478 (Gen. Div.),......
  • Asset Preservation Orders - Mareva Injunctions
    • Canada
    • Irwin Books Archive The Law of Equitable Remedies. Second Edition
    • June 18, 2013
    ...provided that the defendant’s standard of living was not inflated 98 [2003] O.J. No. 40 at para. 26 (S.C.J.). 99 Waxman v. Waxman , 2007 ONCA 326 at para. 37; and B & M Handelman Investments Ltd. v. Curreri , 2011 ONCA 395 at para. 19. The L aw of equiTabLe Remedies 128 from any funds which......
  • Asset Preservation Orders - Mareva Injunctions
    • Canada
    • Irwin Books The Law of Equitable Remedies - Third edition
    • November 18, 2023
    ...Bank of Commerce v Credit Valley Institute of Business and Technology , [2003] OJ No 40 at para 26 (SCJ) [ CIBC ]. 148 Waxman v Waxman , 2007 ONCA 326 at para 37; B & M Handelman Investments Ltd v Curreri , 2011 ONCA 395 at para 19. 149 CIBC , above note 147 at para 15; His Majesty the King......
  • Request a trial to view additional results
10 cases
  • Warner Bros. Entertainment Inc. v. White (Beast IPTV), 2023 FC 164
    • Canada
    • Federal Court (Canada)
    • February 3, 2023
    ...real property which generate income. [58] The CIBC test has received the imprimatur of the Ontario Court of Appeal in Waxman v Waxman, 2007 ONCA 326, 42 CPC (6th) 37 [Waxman]. After referring to the four-part test, the Court of Appeal made it clear that the test applies to Mareva injunction......
  • International Offtake Corporation v. Incryptex Ltd., 2017 ONSC 7537
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • December 15, 2017
    ...the Moving Parties’ evidence is not credible.[41] The case law makes clear, including the Court of Appeal’s decision in Waxman v. Waxman, 2007 ONCA 326, at para. 39, that parties seeking to vary a Mareva injunction have the onus of demonstrating that they have no other assets available for ......
  • Wayne Safety v Gendelman,
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • February 17, 2024
    ...2003 CarswellOnt 35 (ONSC) (“ Credit Valley”), at para. 26, (which was endorsed by the Ontario Court of Appeal in Waxman v. Waxman, 2007 ONCA 326 (“ Waxman”) at para. 37): (a) The defendants must establish on the evidence that they have no other assets available to pay their expenses other ......
  • Mining Technologies International Inc. v. Krako Inc. et al., 2013 ONSC 7280
    • Canada
    • Ontario Superior Court of Justice of Ontario (Canada)
    • November 25, 2013
    ...to which the defendant has put forward an arguable case to rebut the plaintiff's claim. Waxman v. Waxman (2007), 42 C.P.C. (6th) 37, 223 O.A.C. 375, 157 A.C.W.S. (3d) 72, 2007 ONCA 326 (C.A.) Innovative Marketing, Inc. v. D'Souza (2008), 65 C.P.C. (6th) 234, 169 A.C.W.S. (3d) 188 (S.C.J.) C......
  • Request a trial to view additional results
1 firm's commentaries
  • Ontario Court Of Appeal Summaries (March 11-15, 2019)
    • Canada
    • Mondaq Canada
    • March 28, 2019
    ...Canadian Imperial Bank of Commerce v Credit Valley Institute of Business & Technology, [2003] OJ No 40 (ONSC), Waxman v Waxman, 2007 ONCA 326, R v Bernardo (1997), 105 OAC 244 (CA) Colistro v. Tbaytel, 2019 ONCA 197 Keywords: Employment Law, Wrongful Dismissal, Constructive Dismissal, T......
7 books & journal articles
  • Table of Cases
    • Canada
    • Irwin Books Civil Litigation
    • June 16, 2010
    ...176 Civil litigation 286 Waxman v. Waxman (2007), 223 O.A.C. 375, 42 C.P.C. (6th) 37, [2007] O.J. No. 1688 (C.A.) ......................................................................... 239 Web Offset Publications Ltd. v. Vickery (1998), 40 O.R. (3d) 526, [1998] O.J. No. 6478 (Gen. Div.),......
  • Asset Preservation Orders - Mareva Injunctions
    • Canada
    • Irwin Books Archive The Law of Equitable Remedies. Second Edition
    • June 18, 2013
    ...provided that the defendant’s standard of living was not inflated 98 [2003] O.J. No. 40 at para. 26 (S.C.J.). 99 Waxman v. Waxman , 2007 ONCA 326 at para. 37; and B & M Handelman Investments Ltd. v. Curreri , 2011 ONCA 395 at para. 19. The L aw of equiTabLe Remedies 128 from any funds which......
  • Asset Preservation Orders - Mareva Injunctions
    • Canada
    • Irwin Books The Law of Equitable Remedies - Third edition
    • November 18, 2023
    ...Bank of Commerce v Credit Valley Institute of Business and Technology , [2003] OJ No 40 at para 26 (SCJ) [ CIBC ]. 148 Waxman v Waxman , 2007 ONCA 326 at para 37; B & M Handelman Investments Ltd v Curreri , 2011 ONCA 395 at para 19. 149 CIBC , above note 147 at para 15; His Majesty the King......
  • Table of Cases
    • Canada
    • Irwin Books Archive The Law of Equitable Remedies. Second Edition
    • June 18, 2013
    ...No. 1159 .................................................................................. 285 Table of Cases 579 Waxman v. Waxman, 2007 ONCA 326 .............................................................. 127 Webster v. Garnet Lane Developments Ltd. (1989), 70 O.R. (2d) 65, 8 R.P.R. (2......
  • Request a trial to view additional results

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