Trucut Logging Ltd. Plaintiff v. Moyie River Campground & Resort Ltd., 2003 BCSC 441

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Trucut Logging v. Moyie River Campground, 2003 BCSC 441 Date: 20030325 Docket: 13191 Registry: Cranbrook Between: Trucut Logging Ltd. Plaintiff And Moyie River Campground & Resort Ltd. Defendant Before: The Honourable Mr. Justice Melnick Reasons for Judgment Counsel for the Plaintiff: L.G. Schafer Counsel for the Defendant: R.

Buddenhagen Date and Place of Hearing: (via Telephone Conference) March 21, 2003 Vancouver/Cranbrook, B.C. [ 1 ] Trucut Logging Ltd. (Trucut) applies for an interlocutory (or mareva) injunction to restrain Moyie River Campground & Resort Ltd. (Moyie) from disposing of any of its assets until the final dispensation of this action. The application is brought because the principals of Trucut, Mr. Douglas Nichol and Ms. Roylene Nichol, fear that the principal of Moyie, Ms.

Martina Schidzick, a German national in Canada on a Visitor’s Visa, will sell the campground owned by Moyie, take the proceeds, and return to Germany without paying Trucut the approximately $32,000 it claims it is owed by Moyie. [ 2 ] Trucut alleges that the Nichols asked Ms. Schidzick for some form of security, were refused, and were told that they would just have to trust Ms. Schidzick. [ 3 ] Ms. Schidzick, on behalf of Moyie, admits certain funds were advanced from Trucut to Moyie, although without her knowledge, but says that Moyie has offsetting claims against Trucut or the Nichols.

She also says that she has applied for, and before September 2003 hopes to receive, landed immigrant status in this country. She says that while she has caused Moyie’s campground to be listed for sale, and does have an interested purchaser, she has no intention of leaving Canada with the proceeds of sale. She also questions the propriety of the claims advanced by Trucut concerning the personal services allegedly performed by Mr. and Mrs. Nichol. She argues that this application is just an attempt by Trucut to take pre-judgment execution.

[4] I have to say that the material does not contain any compelling evidence that Ms. Schidzick intends to cause the proceeds of anysale of the campground to be removed from the jurisdiction so as to be beyond attachment. A mareva injunction is an extraordinaryremedy, one which ought not to be granted as a matter of course just because the principal of a corporate defendant is not a citizen or alanded immigrant. While our Court of Appeal in Silver Standard Resources Ltd. V.

Joint Stock Company Geolog et al (1998), (BC CA), 59 B.C.L.R. (3d) 196 referred with approval to the “flexible approach” to evaluating these applications forinjunctions as suggested by Madam Justice Huddart (as she then was) in Mooney v. Orr (1994), (BC SC), 100B.C.L.R. (2d) 335 (B.C.S.C.), it also stressed, at ¶21: ...that in most cases, it will not be just and convenient to tie up a defendant’s assets or funds simply to give the plaintiff security for ajudgment he may never obtain. [5] In this case, Trucut arguably has a strong prima facie claim, at least for approximately $21,000 loaned to Moyie.

However,based on the material before me, I do not consider that it would be just and convenient to grant either the sweeping injunction againstdisposition of assets sought in the notice of motion, or the narrower alternative position advanced by Mr. Schafer for Trucut on thisapplication, namely, that any sale of the campground be permitted on the condition that the amount of Trucut’s claim be paid into courtor into trust from the proceeds. [6] I have another concern. It is far from clear on the material that Trucut has the financial resources to support an undertaking as todamages.

Had I granted the injunction, it would have been on the condition that Trucut post a bond for $50,000 to secure itsundertaking. [7] The application is dismissed with costs on Scale 3. “T.J. Melnick, J.”The Honourable Mr. Justice T.J. Melnick