The Most recent Mareva Injunction cases in Ontario (Ontario Professional Fire Fighters Assn. v. Atkinson, [2019] O.J. No. 3410) is the classic case of a fraud allegation. Atkinson is accused of going to the families of deceased firefighters and inducing those grieving families to pay over the proceeds of various insurance to himself on behalf of his good causes (para 9).
The moving party, the actual firefighter’s union, said that the monies should have come to the union not to Atkinson personally.
On Mareva analysis, Diamond J. determined (relying upon Sibley & Associates LP v. Ross 2011 ONSC 2951 (CanLII) that given strong evidence of fraud, the ‘risk of removal’ injunction factor is inferred. Here is what Strathy J. said in Sibley & Associates LP v. Ross 2011 ONSC 2951 (CanLII):
“It is not necessary to show that the defendant has bought an air ticket to Switzerland, has sold his house and has cleared out his bank accounts. It should be sufficient to show that all the circumstances, including the circumstances of the fraud itself, demonstrate a serious risk that the defendant will attempt to dissipate assets or put them beyond the reach of the plaintiff.”
Diamond J. found:
20 There is evidence in the record that both Atkinson and Grieve appear to have sold or transferred their respective interests in residential property with a view to defeating creditors, and in particular the plaintiff.
and
23 I agree with the plaintiff that Atkinson and Grieve both took objective steps to divest their personal assets in the face of the plaintiff seeking to recover what the plaintiff claims to be proceeds of a fraudulent scheme. The timing of both transfers to their respective spouses seems suspicious, and the lack of any supporting documentation or evidence from their respective spouses compounds the suspect nature of these transfers.
and therefore:
26 I find the balance of convenience weighs in favour of the plaintiff as the Atkinson defendants have not effectively identified any harm they will suffer if the Mareva injunction is continued on an interlocutory basis.
The interesting question for a mareva injunction is:
Does anything, beyond prima facie fraud, need to be established before getting a mareva injunction?
