A.G. (Canada) v. Rahey, 81 DTC 5304, [1981] CTC 432 (NSSC)

Burchell, J:—This is an application under Rule 54 of the Civil Procedure Rules of Nova Scotia for an order appointing a receiver of shares and other evidence of the legal or beneficial entitlement of Carl R Rahey to rents, profits or moneys receivable by the respondent companies as well as real estate held in the names of the respondents Linda Rahey and Frank L Elman.

The application relates to certificates having the force and effect of judgments issued under subsection 223(2) of the Income Tax Act of Canada and section 31 of the Income Tax Act, RSNS 1967, 134, and it is estimated that, with intervening interest added, the indebtedness of Carl R Rahey to the applicant now exceeds $1,000,000. It also appears from documentary evidence before me that the sheriff of Cape Breton county, proceeding under writs of fieri facias and execution, has been unable to “uncover” assets of Carl R Rahey sufficient to satisfy the subject indebtedness.

Subsection 39(9) of the Judicature Act, SNS 1972, c 2 provides, inter alia, as follows:

A mandamus or an injunction may be granted or a receiver appointed by an interlocutory order of the Court, in all cases in which it appears to the Court to be just or convenient that such order should be made; and any such order may be made either unconditionally or upon such terms and conditions as the Court thinks just; and if an injunction is asked, either before or at or after the hearing of any cause or matter, to prevent any threatened or apprehended waste or trespass, such injunction may be granted if the Court thinks fit, whether the person against whom such injunction is sought is, or is not, in possession under any claim of title or otherwise, or (if out of possession) does or does not claim a right to do the act sought to be restrained, under any colour of title, and whether the estates claimed by both or by either of the parties are legal or equitable.

Civil Procedure Rule 46.01(1) provides:

The Court may appoint a receiver in any proceeding in which it appears to be just or convenient, and the appointment may be made either unconditionally or upon such terms and conditions as the court thinks just.

Rule 54 of the Civil Procedure Rules provides that a receiver may be appointed in aid of execution. Subsections 54.02(2) and (3) are particularly relevant to the present application:

54.02 (2) On an application made on notice to have a person appointed a receiver, the court may, upon being satisfied that it is just and convenient to do so and upon obtaining satisfactory security, by a receivership order in Form 54.02B,

(a) appoint a receiver;

(b) grant an injunction that is ancillary or incidental to the appointment;

(c) grant such other relief as is just. [E 51/1]

(3) On an application under paragraphs (1) or (2) the court, in determining whether it is just or convenient that a receiver be appointed, shall have regard to,

(a) the amount of the judgment debt or other demand claimed by the applicant;

(b) the amount that may probably be obtained by the receiver;

(c) the probable costs.

The applicant has placed before me a very great volume of deposition evidence as to the business dealings of the respondents. Although the respondent, Carl R Rahey, took the stand, the shape and bulk of the dealings he was constrained to rationalize cast a shadow of doubt that shrouded even those explanations which, if standing alone, might have seemed plausible. When his testimony was completed I was left with the impression that Carl Rahey has contrived to filter substantial sums of money through an elaborate screen of corporate and trust arrangements erected for the purpose of defeating his creditors. Counsel for the parties agree that in exercising the discretionary powers conferred by the above-quoted provisions of the Judicature Act and the Civil Procedure Rules, it is unnecessary that I make specific determinations concerning the complex dealings cited by the applicant and I think it is sufficient that I refer only to several extraordinary banking schemes under which any interception of the revenues of Com- munity Hotel Company Limited has been frustrated, arrangements under which interests in real estate are held in trust by other parties for no apparent reason, questionable inter-company transactions, a profit sharing scheme under which the respondent, Linda Rahey, receives a salary but performs no services, a mortgage given to a creditor for double the amount of the actual debt and alleged trusts in favour of Mr Rahey’s daughter which are entirely undocumented.

Counsel for the respondents submit that the applicant must demonstrate that it has exhausted ordinary legal remedies before seeking the appointment of a receiver. In support of that proposition I have referred to a judgment of Lord Esher, MR in Manchester v Parkinson (1888), 22 QBD 175:

I think that, where there is no impediment shewn in the particular case to the realization of the judgment by the ordinary mode of execution at law, it is not shewn to be just or convenient to appoint a receiver and to substitute for the ordinary known practice of execution by fi. fa. another practice, viz., the appointment of a receiver, which to be effectual must be followed by a further order for sale of the goods.

Counsel for the respondents also rely on a decision of Ritchie, J in NS Mining Co v Greener (1898), 31 NSR 189 and in particular to the following extract which appears at 191:

In my opinion, the cases cited by the learned judge sustain the proposition, that this court should not appoint a receiver by way of equitable execution, merely because it would be a more convenient mode of obtaining satisfaction of a judgment than the usual modes of execution.

I have also been referred to Re Asselin and Cleghorn, 6 OLR 170 and to the following statement by Meredith, J which appears at 173 of the report:

The Court will not appoint a receiver where the effect may be merely the loss of the property or right; nor will a receiver be appointed unless it is reasonably clear that benefit will be derived from the appointment. The material in this case leaves the matter in altogether too much doubt.

Finally, I note that counsel for the respondents also rely on the following proposition quoted from the judgment of Walkem, J in Davidge v Kirby, X BCR 234:

. . . a judgment Creditor must shew that there is a substantial legal impediment in the way of his realizing his judgment at law before he will be entitled to such equitable relief as is now claimed.

While I agree that the remedy sought by the applicant should not be granted without taking into consideration the factors mentioned in Rule 54 of the Civil Procedure Rules, it is my opinion that the byzantine complexity of the respondents’ affairs constitutes a more than substantial impediment in the way of ordinary modes of recovery and, having regard to that fact, the large amount owing and the likelihood that a receiver will be able to realize upon very considerable assets that would otherwise remain sheltered, I have concluded that it is entirely appropriate (which is to say, just and convenient) that a receiver be appointed in accordance with the applicant’s request. I should add that the factor of probably costs is not a basis on which I should hesitate to grant the requested order because they will be insignificant in relation to the very large sums involved in the present case.

After having reached that conclusion, I think it is unnecessary that I discuss in any detail the authorities cited by the applicant but I note that the

applicant relies, inter alia, upon the following cases: Matthewson Bros v Stredicke et al, [1924] 3 DLR 1085 at 1088; Muirhead v Newman, [1931] 2 DLR 519 at 521. I also note that the applicant relies on statements of the relevant principles set forth in the 13th ed of Kerr on Receivers and has referred, inter alia, to 38, 127 and 128. In addition, counsel for the applicant during oral argument cited a number of additonal authorities of somewhat peripheral application which I think need not be mentioned here.

Although it is my conclusion that the applicant should be granted the remedy requested in the application, the fact that the respondent, Carl Rahey, is now in the process of appealing against the assessments on which the applicant’s judgment claim is based gives me some concern which is underlined by the fact that a number of ongoing businesses will be affected and could be extinguished if a receiver is appointed with unlimited powers. That outcome may be an inevitable result of the indebtedness of the respondent, Carl Rahey, and in this connection I note that counsel for the respondent does not dispute the fact that, by statute, the appeal process does not operate as a stay of execution and, in my opinion, it follows that the appeal process is not a bar against the remedy sought in this application. Having regard for principles of equity, it is nevertheless my opinion that, to such extent as may be practicable, extreme and irreversible consequences of the appointment should be postponed pending disposition of the appeal. It is therefore my conclusion that the order appointing a receiver should be granted subject to conditions appropriate to the considerations just mentioned.

I will hear the parties on the subject of the conditions to be imposed at a time and place to be arranged in accordance with the discussion I held with counsel at the close of the hearing, but if the parties are unable to arrange for a prompt disposition of the matter by mutual agreement, I will set a time and place upon the application of either party.

In the meantime the last interim receivership order granted by Mr Justice Grant on July 15, 1980 shall continue in full force and effect.

The applicant shall have its costs to be taxed in the usual way.