Tobin v. Beck, 2017 NSCA 42

Nova Scotia Court of Appeal Citation: Tobin v. Beck, 2017 NSCA 42 Date: 20170518 Docket: CA 461026 Registry: Halifax Between: Kenneth (A.K.A. Keith) Brian Tobin Appellant v.

Durrell Beck, and the International Brotherhood of Electrical Workers – (IBEW) – Local 1852, and the International Brotherhood of Electrical Workers – (IBEW) – First District (Canada) Respondents Judges: Beveridge, Farrar, and Bryson, JJ.A.Appeal Heard: May 17, 2017, in Halifax, Nova ScotiaHeld: Leave granted and appeal allowed per reasons by the CourtCounsel: Liam Gillis, for the appellant Duncan MacEachern for the respondent Durrell Beck Guy LaFosse, Q.C. for International Brotherhood of Electrical Workers Local 1852 (not participating) Philip Chapman for International Brotherhood of Electrical Workers First District (not participating) By the Court (Orally): [1] We are unanimously of the view that leave should be granted and the appeal allowed. [2] Mr.

Beck claims that he was seriously injured by Mr. Tobin who was driving a vehicle owned by IBEW Local 1852. Hefurther claims that Mr. Tobin was an employee and agent for the Local at the time. Mr. Tobin and the Local admit ownership of thevehicle and agency. Mr. Beck applied for the highly exceptional relief of a Mareva injunction, to restrain Mr. Tobin from disposing ofassets pending trial. The relief was granted. In granting a Mareva injunction, the application judge erred in the following respects. [3] First, he erred in law by using the “serious question to be tried” threshold test in R.J.R - MacDonald Inc. v.

Canada (AttorneyGeneral), (SCC), [1994] 1 S.C.R. 311, rather than the more onerous tests referred to in Aetna Financial Services v.Feigelman, (SCC), [1985] 1 S.C.R. 2, requiring either “a strong prima facie” case or a “good arguable case”. [4] Second, the judge made a palpable and overriding error in finding that the owner of the motor vehicle had denied vicariousliability for the motor vehicle accident involving its employee, Mr. Tobin. It appears that the judge confused I.B.E.W. First District(Canada) with I.B.E.W. Local 1852 which owned the motor vehicle and employed Mr.

Tobin, both of which Local 1852 admitted. [5] Third, Mr. Beck, did not give evidence. There was not a proper factual foundation either addressing the merits or the extent ofdamage and injury, relevant to irreparable harm and balance of convenience. [6] Fourth, there was no evidence that Mr. Tobin was attempting to flout the process of the Court by concealing assets, actingfraudulently, or inequitably towards Mr. Beck, all of which are usual requirements of Mareva relief, (see for example Scotia WholesaleLtd. and Flynn v.

Magliaro (1987), (NS CA), 81 N.S.R. (2d) 201 (C.A.) and Aetna, at ¶ 42 and 43). [7] In a proper case, Mareva relief may be appropriate. But in general, pre-judgment orders of this type are not granted by ourcourts, and ordinarily it would be wrong to interfere prior to trial with the freedom of a defendant to deal with his assets, in the absence ofa strong case for the plaintiff and the risk of serious consequences to him, should interim relief not be ordered. [8] We add that Rule 42.11(2) does not alter the common law test for an interlocutory injunction, but merely refers to the common

law “requirements” for obtaining injunctive relief. [ 9 ] The interlocutory injunction granted by the application judge and his costs award of $1,500 is set aside. The appellant shall have $1,500 costs for the application in the court below and $1,000 costs, inclusive of disbursements on this appeal. Beveridge, J.A. Farrar, J.A. Bryson, J.A.