r v. PRICEWATERHOUSECOOPERS INC., 2012 QCCA 1878

Marciano (Séquestre de) 2012 QCCA 1878 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022042-113 (500-11-041322-112) DATE: October 23, 2012 CORAM: THE HONOURABLE ANDRÉ ROCHON, J.A. PIERRE J. DALPHOND, J.A. NICHOLAS KASIRER, J.A. IN RE: GEORGES MARCIANO GEORGES MARCIANO APPELLANT – Debtor v. PRICEWATERHOUSECOOPERS INC.

RESPONDENT – Receiver/ Petitioner JUDGMENT [ 1 ] On appeal from Judgments of the Superior Court, District of Montreal, rendered on September 15 and 16, 2011 (the Honourable Madam Justice Chantal Corriveau), granting ex parte the respondent's motions to obtain the issuance of a search warrant and the authorization to seize the property of the appellant under s. 189 of the Bankruptcy and Insolvency Act , R.S.C. 1985, c.

B-3. [ 2 ] For the reasons of Dalphond, J.A., with which Rochon and Kasirer, JJ.A. agree; THE COURT de bene esse : [ 3 ] ALLOWS the appeal in part, without costs; [ 4 ] SETS ASIDE paras. 8 and 9 of the Judgment made on September 15, 2011. ANDRÉ ROCHON, J.A. PIERRE J. DALPHOND, J.A. NICHOLAS KASIRER, J.A. Mtre Jean-Yves Fortin Mtre Mélanie Martel Mtre Hubert Sibre DAVIS For the appellant Mtre Martin Desrosiers Mtre Alexandre Fallon OSLER, HOSKIN & HARCOURT For the respondent Date of hearing: March 28, 2012

REASONS OF DALPHOND, J.A. [ 5 ] These reasons deal with an appeal by Georges Marciano from judgments rendered by the Honourable Madam Justice Chantal Corriveau of the Superior Court, District of Montreal, on September 15 and 16, 2011, granting ex parte the respondent's motions to obtain the issuance of a search warrant and the authorization to seize the property of the appellant under s. 189 of the Bankruptcy and Insolvency Act , R.S.C. 1985, c. B-3 (BIA). [ 6 ] The facts are summarized in a related judgment released concurrently, Fahs, Chapnick and Tagle et al. v.

Marciano et al. , 500- 09-022220-115. [ 7 ] For the purpose of this appeal it suffices to say that once appointed receiver, at the request of the foreign representative, and interim receiver, at the request of three US creditors, PricewaterhouseCoopers inc. (PWC) immediately petitioned Justice Corriveau of the Montreal Superior Court to obtain ex parte the issuance of a search warrant and the authorization to seize certain movable property of the appellant under s. 189 BIA .

The following day, in the midst of the execution of the search warrant, PWC discovered new bank accounts and artwork and again petitioned ex parte Justice Corriveau for the issuance of a second search warrant and authorization to seize the property. [ 8 ] Past behaviour of the appellant in California, namely the surreptitious removal of movable assets worth tens of millions of dollars and important documents, could justify the court-appointed PWC to obtain ex parte search warrants and authorizations to seize. [ 9 ] However granting ex parte to PWC the power to seize 18 immovables was unnecessary.

Once the foreign main proceeding recognition order was issued at the request of the US Trustee, Marciano could no longer sell or otherwise dispose of his property in Canada (s. 271 BIA ).

PWC acting as court officer was then in a position to publish the order against all the real estates of Marciano . [ 10 ] The PWC original motion should have been granted only in connection with assets that could easily be removed or hidden. [ 11 ] If all the relevant circumstances and provisions of the law were disclosed to Justice Corriveau, she erred in granting the whole respondent's original motion. [ 12 ] For these reasons, I propose to allow de bene esse the appeal in part, without costs, to annul paras. 8 and 9 of the Judgment made on September 15, 2011 issuing a search warrant and authorizing PWC to seize the property of the Debtor.

PIERRE J. DALPHOND, J.A.