14.5: Appeals only with permission

Case Summary

This Appeal considered the validity of two lower Court Orders concerning an Attachment Order. The Applicants, Malcolm Innes and his company (together herein “Mr. Innes”), acting as wealth managers, were accused by the Respondents, Jacob Kleiman and Kleiman Resources Ltd. (together herein “Mr. Kleiman”), of mishandling funds.

Mr. Kleiman obtained an ex parte Attachment Order from Justice Kubik under the Civil Enforcement Act, RSA 2000, c C-15, which Mr. Innes sought to have extended (the “Kubik Order”). During a subsequent hearing, Justice Armstrong granted an adjournment to allow for cross-examination on Mr. Innes' Affidavit, maintaining the original Order and allowing Mr. Innes access to funds for legal fees and living expenses (the “Armstrong Order”).

Mr. Innes appealed both the Kubik Order and the Armstrong Order. The Court of Appeal dismissed the Appeal against the Armstrong Order due to a lack of jurisdiction, as leave for such an Appeal was not obtained in accordance with Rule 14.5(1)(b). The Appeal against the Kubik Order was dismissed as premature, noting that issues related to ex parte Orders should be addressed at the Trial level before an Appeal unless exceptional circumstances exist.

The Court did not find the circumstances alleged by Mr. Innes, which included claims of non-disclosure by Mr. Kleiman, to be exceptional. It was emphasized that any errors in the making of the Kubik Order would be evaluated in a proper forum with a full record. The Court declined to assess the merits of Mr. Innes' Appeal based on the incomplete record before the Court and without factual findings by a Judge on the evidence.

The Court of Appeal thus dismissed the Appeal.

Costs were awarded to Mr. Kleiman for the Appeal, calculated according to Column 1 of Schedule C to the Rules. An informal offer made by Mr. Kleiman to accept a discontinuance of the Appeal without Costs did not influence the Costs awarded, as it was not found to meet the requirements of a Calderbank offer.

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