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April 30, 2018

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PM #40762529 $5.00 • Vol. 29, No. 15 April 30, 2018 L AW TIMES C O V E R I N G O N T A R I O ' S L E G A L S C E N E • W W W . L A W T I M E S N E W S . C O M Precedent set for lawyers representing fraud victims James Zibarras says a recent decision provides a very important remedy in the context of ex parte Mareva orders in fraud actions. Photo: Robin Kuniski TRAGEDY HELP Fundraising launched after van attack P5 ESTATE LITIGATION Shift on costs awards needs scrutiny P7 FOCUS ON Aboriginal Law P8 BY ALEX ROBINSON Law Times T he Divisional Court has granted what lawyers say is the first appeal in On- tario that did not provide notice to a defendant. In 2092280 Ontario Inc. v. Voralto Group Inc., plaintiffs sought a Mareva injunction on an ex parte basis to stop an alleged fraudster from dissipating any of its assets. A motion judge refused to grant the order finding notice must be given to the defendant. The Divisional Court, however, set aside the motion judge's deci- sion, finding that a requirement to notify the alleged perpetrators of fraud in advance of an impending Mareva injunction "would signifi- cantly water down an important remedy for protecting innocent victims." Lawyers say the decision will serve as a strong precedent going forward for practitioners who rep- resent fraud victims seeking an ap- peal on an ex parte basis. James Zibarras, one of the law- yers who represented the plaintiffs, says that prior to this decision, judges were increasingly ordering plaintiffs to come back on notice and that there was no way to ap- peal that decision. "By bringing an appeal, you'd be notifying the defendant that you were trying to freeze their as- sets and the whole purpose of the motion would be undercut," says Zibarras, a partner with Brauti Thorning Zibarras LLP. He adds the fact that the appeal was al- lowed provides a very important remedy in the context of ex parte Mareva orders in fraud actions. Zibarras and lawyer Justin Anis- man, who also worked on the case, sought direction from a senior re- gional justice to hear the appeal on an ex parte basis after they found no evidence that an appeal had ever been heard in Ontario without no- tice being given to the other side. They then received a special order permitting them to do so. In their appeal, the plaintiffs argued that a motion for a Mareva injunction should proceed with- out notice. There would be little point in proceeding with an action against an alleged fraudster if they were given notice, as their assets would likely then be dissipated, they contended. The Divisional Court agreed, finding that the court's reluctance See Divisional, page 2 Adjudicators shouldn't be benchers: paralegals BY ALEX ROBINSON Law Times S ome paralegals are call- ing for deputy judges to be barred from serving as benchers at the Law Society of Ontario. A group of paralegals recently submitted a motion to the LSO for consideration at its annual general meeting that suggests banning anyone who adjudicates tribunals and commissions from becoming benchers. The motion calls for the disqual- ification of any licensee from being elected as a bencher who is a "mem- ber, commissioner, deputy judge, or such other adjudicator of a public agency, board, commission, tribu- nal, or the Small Claims Court." Simon Brown, one of the para- legals who submitted the motion, says adjudicators should not be benchers in order to avoid con- f licts of interest and to preserve their independence. Brown says comments Bencher Raj Sharda made in Convocation last year about paralegals pro- voked the motion. Sharda also serves as a deputy judge in the Small Claims Court. "The problem is that he also holds a role as an adjudicator," Brown says. "[H]ow is my client going to have a chance if I'm ever to appear before him in that court?" Brown says. Under the proposed changes, licensees running to be a bencher would be required to certify on their nomination form that they are not serving in such a capacity or to resign within 30 days of be- ing elected or appointed. The motion allows for an ex- emption for benchers who are members of the Law Society Tri- bunal and the regulator's appeal tribunal. A number of current LSO benchers, who are prominent members of the profession, sit on such boards and bodies in addi- tion to practising law. Opponents of the motion say the experience of those who work See Task, page 2 Graeme Hamilton says that the experience benchers have as adjudicators on other com- missions is invaluable. www.twitter.com/lawtimes Follow & $#&!&jmmm$cYa[bbWh$Yec ntitled-4 1 12-03-20 10:44 AM FULL DAY IN-CLASS & LIVE ONLINE ACCESS CHAIRED BY Donald B. Johnston, Aird & Berlis LLP | Natasha Ell Saunders, Vice President, Legal Affairs, TekSavvy Solutions Inc. WWW.TECHLAW-CONFERENCE.CA 2018 TECHNOLOGY LAW SPRING FORUM MAY 28-29, 2018 Powered by REGISTER NOW Untitled-2 1 2018-04-25 9:42 AM

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