SECURE 2013 GROUP INC v TIGER CALCIUM SERVICES INC, 2017 ABCA 316
BERGER, MCDONALD AND STREKAF JJA
6.4: Applications without notice
9.15: Setting aside, varying and discharging judgments and orders
9.16: By whom applications are to be decided
The Plaintiffs applied ex parte to the Court of Queen’s Bench for a Mareva Injunction and attachment Order against four individuals and seven corporate entities, and six Anton Piller Orders against some of the same parties and three third party providers (the “Orders”). The Orders were granted. The Action was then transferred from Calgary to Edmonton. The Defendants challenged the Orders before a Justice in Edmonton who held that the Defendants would have to challenge the Orders by way of an Appeal.
The Court of Appeal held that Anton Piller Orders and Mareva Injunctions are governed by Rule 6.4(b). As a result, a party seeking an ex parte Anton Piller order or a Mareva injunction has a duty to disclose all detrimental facts, and no relevant adverse information may be withheld.
The Court determined that the Court below erred in stating that ex parte orders must be challenged by way of an Appeal. Rule 9.15 should be read in conjunction with Rule 9.16, which states that Applications to vary or discharge a Judgment or Order must be decided by the Justice who heard the original Application. However, in this case, the venue changed from Calgary to Edmonton, which made it difficult for the original Justice to hear the Application. As a result of the change of venue, the Court held that the appropriate forum to address concerns with the ex parte Orders was the Court of Queen’s Bench. Absent exceptional circumstances, the Court of Appeal would not hear an Application to vary or discharge an Order granted ex parte. The Orders were overturned, with the exception of two Mareva Injunction/attachment Orders which were not the subject of the Appeal.View CanLII Details