



COURT OF APPEAL FOR ONTARIO

CITATION: Trade Capital Finance Corp. v. Cook, 2018 ONCA 27

DATE: 20180116

DOCKET: C63884

Feldman, Pepall and Huscroft JJ.A.

BETWEEN

Trade Capital Finance Corp.

Plaintiff

(Appellant)

and

Peter Cook also known as
    Peter William Cook, Marc DAoust also known as Jean Marc DAoust, Thomas Barker
    also known as Thomas Richard Barker (personally and carrying on business as LC Exchange,
    Global Medical and Greenlink Canada Group), Rocky Racca, Bruno Didiomede also
    known as Bruno Diaiomede, Alan Keery also known as Alan John Keery, Chris
    Bennett Jr. also known as Chris Bennett also known as Christopher Bennett (personally
    and carrying on business as CJR Consulting), Todd Cadenhead, Dayawansa
    Wickramasinghe, Bonny Lokuge also known as Don Bonny Lokuge, Virtucall Inc.,
    Virtucall International Llc, Debt Resolve Mortgage Funding Solutions Inc. carrying
    on business as Debtresolve Inc., The Cash House Inc., 1160376 Ontario Limited operating
    as The Cash House, 2242116 Ontario Inc. carrying on business as Superior
    Medical Services Inc. and Superior Medical Services, Carlo De Maria also known
    as Carlo Vince De Maria also known as Carlo Vincent De Maria also known as Carlo
    Vincenzo De Maria, Matteo Pennacchio, Frank Zito also known as Francesco Zito,
    Simone Sladkowski, Jobec Trade Finance Inc., 1461350 Ontario Inc., 2299430 Ontario
    Inc., WF Canada Ltd., Jobec Investments RT Ltd., Green Link Canada Inc.,
    2339989 Ontario Inc., 2252364 Ontario Inc., 2224754 Ontario Ltd., 6980023 Canada
    Inc. operating as Living Benefits and Millwalk Enterprises Inc.,
Oak Hills
    Water Durham Inc., Joshua Cook, Elizabeth Cook, Rebecca Cook, Mark Pintucci,
    Marco Santonato also known as Marc Santonato and New Era Resolutions &
    Consulting Inc.

Defendants

Peter Carey, for the appellant

Brendan Wong, for the respondents

Heard and released orally: January 10, 2018

On appeal from the order of Justice Michael Emery of the Superior
    Court of Justice, dated May 8, 2017.

REASONS FOR DECISION

[1]

The appellants position is that the motion judge erred in varying the
    Mareva injunction that had been granted to Trade Capital against Cash House to
    allow Maple Trust to seize the funds in account number 0066701 (701)in the
    name of Cash House, under a properly issued writ of seizure and sale in the
    amount of $120,396.90 plus post-judgment interest.

[2]

In oral argument the appellant asserted that the real issue before the
    motion judge and on appeal was whether Maple Trust should be entitled to
    execute against funds in the 701 account of Cash House when those funds may be
    shown at some point to be funds stolen from Trade Capital, which therefore
    never belonged to Cash House. He asserted that a temporary stay should have
    been granted to allow Trade Capital to continue to try to trace its stolen
    funds into Cash Houses 701 account.

[3]

We are not able to accede to this submission. Even if the appellant
    could demonstrate that there was a serious issue to be tried within a
    reasonable amount of time regarding the tracing issue, in our view the balance
    of convenience favours the respondent, Maple Trust. It has acted in good faith
    in obtaining its judgment against Cash House and pursuing execution. It filed
    its writ on October 29, 2015. If it had to wait for an indefinite period of
    time while the appellant pursued its tracing remedy, the value of its judgment
    could be subject to significant dilution, for example, if other judgment
    creditors were to emerge.

[4]

As the motion judge found, the appellants Mareva injunction gives it no
    proprietary interest in the funds in 701. It has been unable to date to prove
    or establish its claim in respect to account number 701. There is no basis for
    the third party, Maple Trust, to suffer prejudice as a result.

[5]

The appeal is therefore dismissed, with costs to the respondent fixed in
    the amount of $15,000, inclusive of disbursements and HST.

K.
    Feldman J.A.

S.E.
    Pepall J.A.

Grant
    Huscroft J.A.


