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Injunctions - Mareva (2). Aquino (Re)
In Aquino (Re) (Ont CA, 2026) the Ontario Court of Appeal dismissed a BIA insolvency appeal, this brought against two orders: the first "adjudging the appellant bankrupt and appointing [a] trustee of his bankrupt estate" and the second "determining that a pre-existing Mareva injunction, granted in litigation that resulted in a substantial judgment against the appellant (the “TUV litigation”), remained and continued in full effect until further order of the court (the “Mareva Order”).
The court considers a Mareva injunction, here in an insolvency context:3. The Mareva Order
[49] The Mareva Order, styled as having been made in the TUV litigation, by its terms enjoins the appellant for an indefinite period of time as a form of post judgment execution. It does not operate pending the determination of claims or defences in the TUV litigation; those have already been determined. Although pre-trial Mareva injunctions are interlocutory orders, it is difficult to fit this order into that category. In some situations, a post judgment order that finally determines a party’s access to funds is final for the purpose of appeal: B&M Handelman Investments Ltd. v. Curreri, 2011 ONCA 395, 278 O.A.C. 199, at para. 16. This order has an analogous character. Moreover, the order was made after the Bankruptcy Order, the effect of which is to remove the capacity of the appellant with respect to his property, including (once the stay of the Bankruptcy Order terminates by the disposition of the appeal from it) any right to challenge the Mareva Order. In these circumstances, the Mareva Order is final and is appealable as of right pursuant to s. 6(1)(b) of the CJA.
[50] The appellant’s principal argument concerning the propriety of granting the Mareva Order is that the bankruptcy judge failed to address, head on, his assertion that the General Mareva Order, which the bankruptcy judge’s order continued, merged in the judgment in the TUV litigation, and ceased to be in effect. He points to authorities that Mareva injunctions are generally thought of as a pre-trial remedy, and the need to specify in them the exact terms on which they cease to apply. He argues that the General Mareva Order ended when judgment in the TUV Litigation was first given.
[51] I reject this submission. The General Mareva Order specifically stated its termination date. It stated that it remained in effect until varied by further order of the court. It was not varied until addressed, and extended by, the Mareva Order made by the Bankruptcy Judge.
[52] The appellant also submits that the Mareva Order creates uncertainty given the bankruptcy. I do not accept that argument.
[53] Ordinarily, upon the making of a bankruptcy order, a judgment creditor would not be permitted to ask for further post judgment relief against the debtor to assist in execution of its judgment, since s. 69.3(1) of the BIA provides:Subject to subsections (1.1) and (2) and sections 69.4 and 69.5, on the bankruptcy of any debtor, no creditor has any remedy against the debtor or the debtor’s property, or shall commence or continue any action, execution or other proceedings, for the recovery of a claim provable in bankruptcy. [54] However, the court has the power to declare that the stay does not apply to a particular step by a particular creditor: s. 69.4. Although she did not put it in those terms, the bankruptcy judge effectively exercised that power as she stated that she was satisfied that making the Mareva Order was “complementary to the powers afforded to [the appellant’s] trustee in bankruptcy”.
[55] I see no reversible error in that exercise of discretion. It was appropriate to prevent any purported dealings with or dissipation of assets by the appellant while the bankruptcy trustee was readying itself to seek out and take control of the assets legally vested in it. The stay of the Bankruptcy Order resulting from the appellant’s appeal of it confirms the wisdom of keeping the restraints on dissipation of assets in place.
[56] Accordingly, I would dismiss the appeal from the Mareva Order.
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