



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



First Majestic Silver Corp. v. Davila,









2014 BCCA 11




Date: 20140113

Dockets: CA041279;
CA041285



Docket No.: CA041279

Between:

First Majestic
Silver Corp.,
First Silver Reserve Inc., and
Minera El Pilon, S.A. de C.V.

Respondents

(Plaintiffs)

And

Hector Davila
Santos and
Minerales y Minas Mexicanas, S.A. de C.V.

Appellants

(Defendants)

- and -

Docket No.: CA041285

Between:

First Majestic
Silver Corp.

Appellant

(Plaintiff)

And

Hector Davila
Santos and
Minerales y Minas Mexicanas, S.A. de C.V.

Respondents

(Defendants)








Before:



The Honourable Madam Justice Neilson

(In Chambers)




On appeal from:  An
order of the Supreme Court of British Columbia, dated September 13, 2013 (
First
Majestic Silver Corp. v. Davila
, 2013 BCSC 1704, Vancouver Docket No.
S078106).




Counsel for First Majestic Silver Corp.



H. Shapray, Q.C.
B. Cramer





Counsel for H.D. Santos and Minerales y Minas Mexicanas



D. Church, Q.C.
M. Buhler





Place and Date of Hearing:



Vancouver, British Columbia

December 4, 2013





Further Submissions Received:



December 17 and 19,
  2013







Place and Date of Judgment:



Vancouver, British
  Columbia

January 13, 2014










Summary:

Applications for leave to
appeal the terms of a post-judgment Mareva injunction are dismissed. The
situation is fluid and the Supreme Court is the proper venue for further
variation proceedings. Neither party meets the criteria for granting leave to
appeal.

Reasons for Judgment of the Honourable
Madam Justice Neilson:

[1]

Both the plaintiffs (in file CA041285) and the defendants (in file
CA041279) in the action below apply for leave to appeal the terms of a worldwide
post-judgment
Mareva
injunction imposed against the defendants on
September 13, 2013. For the following reasons, I would dismiss both
applications for leave.

[2]

The original dispute between the parties involved proprietary rights
over the Bolaños mining property in Mexico, operated by the Mexican defendants,
Mr. H. D. Santos and
Minerales Y Minas Mexicanas
, S.A.
de C.V (MMM). At trial, the plaintiffs primary allegation was that, by
acquiring the Bolaños property, Mr. H. D. Santos, the former president, CEO,
and director of the plaintiff First Silver Reserve Inc., appropriated a
corporate opportunity that belonged to First Silver and breached his fiduciary
duty to that company. The plaintiff First Majestic Silver Corp. is the parent
company and assignee of First Silvers claim.

[3]

On April 24, 2013, following a 60-day trial, Mr. Justice Myers granted
judgment for the plaintiffs. As they had elected damages in lieu of a proprietary
remedy, he awarded equitable compensation of USD 93.84 million for the lost
opportunity: 2013 BCSC 717.

[4]

On May 23, 2013, the defendants filed a notice of appeal, and on
June 10, 2013, the plaintiffs filed a cross appeal. The appeal precludes
execution proceedings in Mexico, which is not a reciprocating state.

[5]

The plaintiffs scheduled an examination in aid of execution of Mr. H.D.
Santos in Vancouver for June 11 and 12, 2013, but he failed to attend.

[6]

On June 13, 2013, the plaintiffs brought an application before Madam
Justice Dickson for a worldwide post-judgment
Mareva
injunction against
the defendants. Dickson J. issued a
status quo
interim order at the
hearing, and delivered reasons on June 24, 2013 granting the injunction:
2013 BCSC 1209. She found that there was a strong
prima facie
case
and a real risk of irreparable harm if the injunction was not granted, as the
defendants did not have sufficient assets in British Columbia to satisfy the
judgment and the Bolaños mine was their only other known asset. She also noted
there was uncontradicted evidence that the defendants might sell the mine
before execution could be achieved. She rejected Mr. H. D. Santos explanation
for his failure to appear at the examination in aid of execution, and found the
balance of convenience tipped in favour of the plaintiffs, as there was no
evidence the defendants would be prejudiced by the injunction.

[7]

On June 25, 2013, Myers J. issued supplementary reasons for
judgment that included an order that CAD 14.85 million held in trust for the
defendants by their British Columbia solicitors be paid to the plaintiffs in
partial satisfaction of the judgment: 2013 BCSC 1126.

[8]

On June 27, 2013, Madam Justice D. Smith granted the plaintiffs
application in this Court for security for the trial judgment and ordered the
defendants to post security of USD 79 million within 90 days, failing which the
plaintiffs would be at liberty to apply for an order dismissing the defendants
appeal as abandoned: 2013 BCCA 312.

[9]

The parties were unable to settle the terms of Madam Justice Dicksons June 24
order, and appeared before her again on June 28, 2013 for that purpose. Their
disagreement centred on the extent to which the defendants should be able to continue
to operate the mine. The plaintiffs maintained that the
caveat
proposed
by the defendants, which would permit the mine to operate in the ordinary
course of business should not be included in the order as this could
significantly diminish the value of the mine during what might be an extended
appeal period. Dickson J. affirmed that her order was intended to provide
security for the outstanding judgment, but held the defendants could operate
the mine as long as they did not diminish its value beyond a
de minimis
level:
2013 BCSC 1212. She stated:

[9]        Despite counsels able
submissions, I am not persuaded the reference to the ordinary course of
business should be deleted from the June 24 Order, at least at this juncture. 
In my view, it would be unduly cumbersome and inconvenient to require the
defendants to seek a variation in order to permit the conduct of mining
operations of any kind.  Although I accept there is a theoretical possibility
the injunction could continue well into the future, that is by no means certain
or even a substantial likelihood.  If, however, the plaintiffs concerns are
borne out and the defendants operate the mine in a manner that diminishes its
value beyond the
de minimis
level an application to vary the June 24
Order can be made.

[10]

Madam Justice Dicksons order, to which I will refer as the Initial
Order, ultimately included these terms:

2.         Until
further order of this court, each of the defendants ... shall not dispose of,
pledge, mortgage, transfer, diminish (save and except in the ordinary course of
business) or assign the ownership and/or value of the mineral concessions,
surface land and infrastructure  known collectively as the Bolaños Mine, and
which was the subject matter in part of this action (the Proposed
Disposition) save and except that these prohibitions shall not apply if as
part of any such Proposed Disposition or otherwise the sum of US $79 million is
deposited in the trust account of Church & Company, counsel for the
defendants, and not released therefrom until further order of the court or
pursuant to a written agreement between the parties.

3.         Insofar
as this order purports to have any extraterritorial effect, no person shall be
affected thereby or concerned with the terms thereof until it shall be declared
enforceable or be enforced by a foreign court and then it shall only affect
them to the extent of such declaration or enforcement, unless they are: (a)
either of the defendants or (b) persons who are subject to the jurisdiction of
this Court and (i) have been given written notice of this order at their
residence or place of business within British Columbia, and (ii) are able to
prevent acts or omissions outside British Columbia which assist in the breach of
the terms of this Order.

4.         Any of the parties hereto and
any other person affected by this Order are at liberty to apply to this Court
for further directions.

[11]

On September 4, 2013, the plaintiffs brought an application before Madam
Justice Griffin to vary the Initial Order by removing the
caveat
, and
adding terms requiring the defendants to pay any net cash flow generated by the
mine to the plaintiffs lawyers in trust, and to produce documents detailing
mine production and net cash flow. In support, they presented new evidence
suggesting the defendants were extracting as much as 800 tons per day (tpd) of
ore from the Bolaños mine, which could deplete two of the mines key veins in
two years if the defendants are high-grade mining those veins. The defendants
opposed the application. They argued the Court had no jurisdiction to make such
orders against Mexican defendants. As well, they produced second-hand evidence,
through an employee of their counsels firm, that they were only mining 400 to
500 tpd, and contended this was not a change in circumstances that would
justify variation of the Initial Order.

[12]

On September 13, 2013, in reasons indexed at 2013 BCSC 1704,
Griffin J. found circumstances had changed because there had been no
evidence of the defendants operations at the mine at the hearing before Madam
Justice Dickson. Madam Justice Griffin affirmed the Courts intention was to
preserve the value of the mine as security for the plaintiffs judgment, and
accepted the plaintiffs could suffer irreparable harm if operations at the mine
diminish its value below the unpaid portion of the judgment. While she found
the defendants disclosure was less than impressive, and the plaintiffs new
evidence raised concerns, she concluded the plaintiffs evidence was
speculative and insufficient to justify an order that all mining must cease. She
therefore declined to remove the
caveat
, but as an interim solution
she ordered the defendants to produce monthly reports about the mines
operations and limit MMMs mining to 500 tpd, its current level of operations
according to the defendants evidence:

[59]      In my view the plaintiffs counsel has more work to
do to organize a submission which fairly and objectively presents the evidence
of the Mines overall value, and the impact of estimated ongoing mining on that
value, in order that the Court may fairly draw conclusions as to whether
current mining operations in the short term do or do not materially impair the
security available to satisfy the plaintiffs judgment.

[60]      I conclude that in weighing the prejudice to both
sides there is an interim solution which will allow the Mine to be carried on
at the level which the defendants say is their current level of operations, 400
to 500 tons of ore per day, but will provide security for the plaintiffs
judgment and allow the plaintiff to come back to court for the further relief
it seeks or alternative relief if it is not given sufficient information to
provide confidence that its security is being protected.

[61]      I am going to grant the
plaintiff an order requiring the defendants to provide information regarding
the Mines operations and cash flow generated from those operations, with
liberty to the plaintiff to return to court once this information is provided,
or on the defendants failure to provide it.  This is the type of information
which the plaintiff would be entitled to in ordinary judgment enforcement
proceedings and there is no prejudice in requiring the defendants to produce it
now.  Failure to produce this information will of course raise the possibility
of an adverse inference being drawn against the defendants on any future
application.

[13]

As to the defendants argument that she did not have jurisdiction to
make orders affecting the operations of a Mexican mine, Madam Justice Griffin
observed that the personal defendant was a former director of the plaintiffs,
which were BC companies, that both defendants had attorned to the jurisdiction
of the courts of this province, and that they had not raised this issue in the
proceedings before Madam Justice Dickson. She pointed out the Initial Order was
an
in personam
order, as was her intended order, and both simply
directed the defendants to do or refrain from doing certain actions. As well,
she noted paragraph 3 of the Initial Order, which prevented it having effect
beyond the Supreme Courts jurisdiction, would continue to apply.

[14]

Her order, to which I will refer as the Variation Order, added these terms
to the Initial Order:


In carrying on mining at the
     Bolaños Mine in the ordinary course of business, the defendants are
     required:


(a)

to limit
mining operations such that they do not exceed mining of 500 tons of ore per
day;

(b)

to limit the
nature of the mining operations such that they not engage in high grade mining;

(c)

to preserve all Net Cash Flow,
such preservation to be in a location and place disclosed to First Majestic

[15]

The Variation Order also required the defendants to provide the
plaintiffs with monthly reports detailing the scale and type of mining activity
at the Bolaños mine and the amount and location of its monthly net cash flow.
The other terms of the Initial Order remained in place.

[16]

When the defendants failed to post security in compliance with the order
of D. Smith J.A., the plaintiffs brought an application in this Court to
have the appeal dismissed, which was granted on October 23, 2013:
2013 BCCA 458.

[17]

The defendants sought a review of the order dismissing their appeal under
s. 9(6) of the
Court of Appeal Act
, R.S.B.C. 1996, c. 77,
which was heard on December 10, 2013. Judgment has been reserved.

The
Issues Arising from the Applications for Leave

[18]

These applications raise four issues:

(a)      Should
this Court refuse to hear the defendants application for leave because they
are in violation of the Variation Order?

(b)      Should
the defendants have leave to appeal the issue of whether Madam Justice Griffin
lacked jurisdiction to make the orders in paras. 1(a) and (c) of the
Variation Order?

(c)      Should
the defendants have leave to appeal the issue of whether Madam Justice Griffin
erred by giving no, or insufficient, weight to the balance of convenience underlying
the terms of the Initial Order?

(d)      Should
the plaintiffs have leave to appeal Madam Justice Griffins decision to permit
the
caveat
to remain in place?

Analysis

[19]

I begin with the preliminary issue of whether the defendants
application should be heard at all.

[20]

On the morning of this hearing, the plaintiffs sought to introduce an
affidavit sworn by an employee of their counsel the day before, which exhibited
MMMs monthly operation reports for the Bolaños mine for October 2013, which
had just been delivered to plaintiffs counsel, as well as reports for March to
August, 2013, which had been delivered to them in October. The plaintiffs argue
these reports clearly demonstrate that MMM is mining more than 500 tpd at the
Bolaños mine and is therefore in violation of the Variation Order. They contend
this Court should therefore refuse to hear the defendants application for
leave.

[21]

This Courts general practice is to refuse to hear an appeal if the
appellant has failed to comply with the order under appeal without a good
explanation. This is not a rule of universal application, however, as the Court
retains a discretion to proceed in appropriate circumstances:
Mazara v.
Mazara
, 2010 BCCA 287 at para. 8.

[22]

Because the affidavit was sworn and delivered to the defendants on the
eve of this hearing, the parties were permitted to submit supplementary arguments
as to its import. These suggest the records of the mines operations exhibited
to the affidavit may be selective, and invite the Court to make findings of
fact and credibility on what may be an incomplete evidentiary record. This
Court is ill-equipped to undertake such an analysis. The proper venue for such
submissions is the Supreme Court, particularly since the Variation Order specifically
contemplates that the parties will return to that Court if information received
from the defendants is unsatisfactory and indicates further variation should be
considered. I am persuaded the affidavit should not be admitted, and does not
preclude me from hearing the defendants application for leave.

[23]

I turn to the criteria for leave to appeal. These were summarized in
V.F.
v. E.B.
, 2011 BCCA 238, at paras. 19-21:

(1) whether the point on appeal is of significance to the
practice;

(2) whether the point raised is of significance to the action
itself;

(3) whether the appeal is
prima facie
meritorious or,
on the other hand, whether it is frivolous; and

(4) whether the appeal will
unduly hinder the progress of the action.

[24]

The onus rests on the party seeking leave to establish these criteria.
The over-riding concern will be whether granting leave will serve the interests
of justice.

[25]

This Court is reluctant to grant leave to appeal a discretionary order,
unless the party seeking leave can establish the order was clearly wrong or
creates serious injustice:
V.F.
at paras. 22-23.

[26]

While the parties have brought separate applications for leave, their
positions on items 1, 2, and 4 of the leave criteria are similar, and I will
therefore address these in both applications at the same time. I will then
consider the merits of each of the proposed grounds of appeal, and will
conclude by considering whether the interests of justice favour granting leave
to either applicant.

Is an
appeal of significance to the practice?

[27]

Both parties rely on the rarity and severity of post-judgment
Mareva
injunctions to support the contention that an appeal would be significant to
the practice. The defendants say this Court to date has not considered such an order
and so this would be a matter of first instance. As well, they assert that the
question of whether a British Columbia court has jurisdiction to restrict the
operations of a foreign business asset by virtue of a post-judgment injunction
is a grey area and a novel issue of interest to the profession.

[28]

The plaintiffs emphasize the differences between a
Mareva
injunction
made prior to trial and one made after judgment has been rendered. They argue
it is important for an appellate court to address this, and affirm that the
judicial cautions associated with a pre-judgment order are no longer a concern here
as there is no uncertainty as to the outcome of the action, and the injunction
issues in favour of a judgment creditor.

[29]

A
Mareva
injunction is in essence a discretionary order, based on
the particular facts of each case. I am not persuaded an appeal of the
Variation Order would produce a result of general interest to the practice.

Is an
appeal of significance to the action?

[30]

At this post-judgment stage, the present value of the Bolaños mine, its
ongoing level of operations, and the disposition of its net profit are central
issues for both parties. From the plaintiffs perspective, the mine is the only
known asset of the defendants, and there is contradictory evidence as to
whether it is capable of satisfying the judgment. On the defendants side, any
restriction of MMMs mining operations and cash flow may jeopardize its
facility and the jobs of its 390 workers.

[31]

It is thus apparent that any change to paragraphs 1(a) and (c) of the
Variation Order would be significant to the action. I am concerned, however,
that a change arising from these contemplated appeals may not be significant,
given the fluidity of the situation and the fact the Supreme Court represents a
more efficacious means of accomplishing a variation. Madam Justice Griffin stated
the Variation Order was an
interim
order, pending proper disclosure of
production information by the defendants and greater certainty as to any appeal
period. She anticipated a further application to vary in the Supreme Court once
these matters had crystallized. As previously stated, that is the proper court to
consider a further change in the Variation Order. An appeal of that order, if
it is outdated by proceedings in the Supreme Court, will be of little
significance to the parties.

Will an
appeal unduly hinder the course of the action?

[32]

The parties maintain an appeal will not hinder the course of the action
since final judgment has been given. As I have just observed, however, if a further
application to vary in the Supreme Court is successful an appeal taken from the
Variation Order may become an unnecessary hindrance.

Do the proposed
grounds of appeal have merit?

1.
Did the chambers judge have jurisdiction to make the Variation Order?

[33]

The defendants maintain Griffin J. erred by failing to recognize the difference
between ordering preservation of the asset, and intervening to interfere in its
operations. They say she also erred in limiting her analysis to personal
jurisdiction. Had she considered whether she had subject matter or territorial
jurisdiction to order the terms in paragraphs 1(a) and (c) of the Variation Order,
she would have recognized that the restriction on mining operations intrudes on
the exclusive jurisdiction of the Mexican courts over mineral resources in
Mexico. In support, they point to expert opinion that the operations of Mexican
mines are subject only to Mexican laws governing exploitation of mineral
resources, and are beyond the jurisdiction of the courts of this province.

[34]

The defendants express similar concerns about the order precluding MMM from
accessing its net cash flow, arguing it intrudes on Mexican mining operations and
it is directed not at preservation, but is a step in execution in a foreign
country. They submit that for both reasons this term lies beyond the Supreme
Courts jurisdiction.

[35]

In my view, this ground of appeal has little merit. The defendants
arguments fail to appreciate that a
Mareva
injunction is an equitable
remedy, and equity acts
in personam
. The courts
in personam
jurisdiction to enjoin conduct abroad is not founded on any assertion of
judicial or administrative rights in the foreign territory but on its powers
over the parties against whom the injunction is ordered. It is clear the
Supreme Court had
in personam
jurisdiction over the defendants here,
which afforded the basis for an order freezing their
ex juris
assets.

[36]

Both Madam Justice Dickson and Madam Justice Griffin were clearly
sensitive to the limits on their extra-territorial jurisdiction. This is
exemplified by the 
Babanaft
proviso that appears in para. 3 of both
orders, in a form derived from
Derby & Co. v. Weldon (Nos. 3 & 4)
(1988), [1990] 1 Ch. 65 (C.A.), and adopted in this province in
Mooney v.
Orr (No. 1)
(1994), 98 B.C.L.R. (2d) 318 (S.C.), which is clearly directed
to limiting the extraterritorial effect of the injunction on third parties.

[37]

Moreover, I am not persuaded the defendants Mexican law evidence
strengthens their argument. This is directed to the question of whether Mexican
authorities would recognize and enforce an order from a British Columbia court
that directs the defendants to cease all mining operations at the Bolaños
property. That is not the order that was made. The Variation Order simply
limited mining to what the defendants said was the present level of operations.
Moreover, there is no evidence it has forced the defendants to act in contravention
of Mexican law. The Order simply binds the defendants personally to preserve
their assets. Its enforceability in Mexico is unrelated to these personal
obligations, which stem from their participation in litigation in this
province.

2. Did the
chambers judge err by ignoring the purpose and balance of convenience
established by the Initial Order?

[38]

The defendants say the clear purpose of the Initial Order was to provide
security for the unpaid portion of the trial judgment. In that context, Madam Justice
Dickson found the balance of convenience supported an order that permitted MMM
to continue to operate the Bolaños mine in the ordinary course of business. Her
decision was supported by projections that indicated the mines production
would be more than adequate to pay the balance of the judgment. The defendants
argue there were no new circumstances to justify Madam Justice Griffins
decision to reassess the balance of convenience and, on her own initiative,
vary the Initial Order by capping production at 500 tpd and restricting the
defendants access to any net cash flow received by MMM.

[39]

I see little merit in this ground of appeal. There was evidence before
Griffin J. to support a finding that there had been a change of circumstances
since the Initial Order, and that a reassessment of the balance of convenience
was required. Madam Justice Dickson had no evidence before her about the extent
of the defendants ongoing mining, due primarily to their resistance to disclosure.
The focus of concern when she made the Initial Order was a possible sale of the
mine. By contrast, the defendants presented second-hand evidence before Madam
Justice Griffin that they were mining 400-500 tpd at the Bolaños mine. She
found the defendants disclosure was less than impressive and rendered the
plaintiffs concerns about dissipation speculative. The available projections
of the mines future production capability diverged, with some indicating it
could easily satisfy the judgment. In my view, there is little likelihood this
Court would interfere with her decision to exercise her discretion by reassessing
the balance of convenience in order to maintain the objective of preserving the
asset, and by striking a reasonable balance until the parties were in a
position to return with more reliable information. The defendants cannot claim
prejudice as the Variation Order capped mining at what they said was MMMs present
level of operations, and the direction to preserve the mines net cash flow
permitted expenditures in the normal course of business.

3. Did the
chambers judge err in failing to remove the caveat?

[40]

This proposed ground of appeal, advanced by the plaintiffs, is in effect
a mirror image of the defendants second proposed ground. The plaintiffs rely
on the more pessimistic projections of the mines value, and argue Griffin J.
erred by failing to find the balance of convenience favoured a cessation of all
mining until the judgment is satisfied. They assert that the
caveat
was
only included in paragraph 2 of the Initial Order as an afterthought, in
response to the defendants concern the order would preclude
de minimis
mining. Now evidence led before Griffin J. demonstrates MMM is mining up to 500
tpd, well beyond
de minimis
mining. As well, the plaintiffs point to findings
at trial as to the defendants misconduct, misrepresentation, and breach of
fiduciary duty, and their ongoing recalcitrance in producing satisfactory
information about the mines operations.

[41]

The plaintiffs also argue that, in placing the onus of proof on them, Madam
Justice Griffin failed to appreciate the significant distinctions between
pre-judgment and post-judgment
Mareva
injunctions. They maintain that,
in the post-judgment context, the defendants should be required to make full
disclosure of their activities and intentions with respect to the mining at the
Bolaños property, and should bear the onus of establishing this is necessary
and will not diminish the mines value. They say that prejudice to the
defendants should not be a relevant consideration at this stage unless they can
establish the injunction freezes assets that are disproportionate to the judgment.

[42]

The defendants respond that the plaintiffs did not appeal Madam Justice
Dicksons decision to permit the
caveat
, and say this ground is an
impermissible collateral attack on the Initial Order. Madam Justice Griffin
also rejected such a term. They maintain that, having failed twice, the
plaintiffs should not be permitted to use an appeal as a third attempt to shut
down the mine when there has been no material change that would justify the
removal of the
caveat
. Finally, they point out the plaintiffs elected equitable
damages rather than a proprietary remedy, and so should not be permitted to
interfere with the mines operations.

[43]

For similar reasons to those expressed with respect to the defendants
second proposed ground of appeal, I am not persuaded there is merit to this ground.
The Variation Order was an
interim
discretionary order based on Madam
Justice Griffins factual findings, and it is unlikely this Court would interfere
to substitute its own view of the appropriate level of mining operations,
particularly when the Supreme Court provides a more appropriate forum for
regulating this issue as new evidence emerges.

[44]

As to the differences between pre-judgment and post-judgment
Mareva
orders,
the authorities recognize a distinction, observing the courts will more readily
make post-judgment orders:
Republic of Haiti v. Duvalier
(1988), [1989]
1 All. E.R. 456 (C.A.) at 465
E
; and
Babanaft International v. Bassatne
(1988),
[1990] 1 Ch. 13 (C.A.), at 37
C
,
40
D
. A
Mareva
injunction
remains an exceptional remedy, however, even in the post-judgment context, and
I do not read these decisions as going so far as to shift the onus of proof.
Instead, they appear to apply a lower burden on the plaintiff.

[45]

In my view, Madam Justice Griffin acknowledged this by adopting, at
para. 35 of her reasons, Madam Justice Dicksons earlier review of the law
in which she stated (2013 BCSC 1209 at para. 39):

As is apparent from the
foregoing, the overarching consideration in each and every case is the balance
of justice and convenience between the parties.  This is true whether a Mareva
injunction is sought in a pre or post-judgment context.  As to the latter,
however, the concern noted in
Tracey
about tying up a defendants assets
to provide security for a judgment that may never be obtained is obviously no
longer a factor for consideration.  In my view, this is a significant
difference which should be weighed in the balance where, as here, the
application is brought after an award has been made in favour of the plaintiff.

[46]

I am not convinced Griffin J. failed to recognize this principle in
weighing the limited evidence before her, and making an interim order directed
to facilitate expansion of the evidentiary record for future applications.

Do the interests of
justice favour granting either application?

[47]

As is evident from my analysis, I am of the view the Variation Order
strikes a reasonable balance in a fluid situation, pending further disclosure
by the defendants and greater certainty as to whether their appeal will
proceed. As more information becomes available, the Supreme Court is the proper
forum to deal with an application to vary that order. I am not persuaded the
interests of justice would be served by granting either application for leave
to appeal the Variation Order.

Conclusion

[48]

Both applications for leave to appeal are dismissed.

The
Honourable Madam Justice Neilson


