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SCC ruling paves way for B.C. to seek repayment of Malik’s legal tab

|Written By Robert Todd

The Supreme Court of Canada has paved the way for the province of British Columbia to use evidence it collected to show that Ripudaman Singh Malik has the resources to pay a $5.2-million defence tab for the Air India bombing trial.

Malik and his co-accused, Ajaib Singh Bagri, were acquitted in 2005 of charges stemming from the 1985 mass slaying of 331 people. The province issued claims of debt, breach of contract, conspiracy, and fraud when Malik failed to follow though on an agreement to repay his legal costs following the trial.

The top court unanimously agreed that a chambers judge was free to use facts from proceedings related to Malik’s Rowbotham application in reaching a decision that authorized an Anton Piller order for the search of properties owned by the Malik family. The B.C. Court of Appeal had overturned the Anton Piller based on its belief that information from the Rowbotham proceedings was inadmissible.

But the top court said a relevant judgment from a previous civil or criminal case is admissible in future interlocutory proceedings if the same parties and similar issues are involved. The weight applied to the earlier proceedings should depend on identity, similarity of the issues, nature of the earlier proceedings, the opportunity afforded to the party to contest it, and other case-by-case circumstances, said the top court.

It went on to determine that the four factors leading to an Anton Piller order were satisfied: the chambers judge was open to concluding the province offered a strong prima facie case demonstrating Malik’s debt and the family’s conspiracy to help him avoid obligations under an agreement with the Crown; a multimillion-dollar claim against a debtor who shows a history of dodging payment is very serious; the judge was free to determine that the Malik family held incriminating information; and the evidence suggests that Malik had ignored court orders in the past and that he may well do so again.

“It was also of course open to Mr. Malik or his wife and Jaspreet to challenge any of the ‘Rowbotham facts’ when they brought before the chambers judge their application to set aside the Mareva injunction and the Anton Piller orders,” wrote Justice Ian Binnie on behalf of the court. “They did lead some evidence, but their evidence did not relate to the financial transactions said to demonstrate the manipulation of family assets that lay at the heart of the ex parte orders. The chambers judge was entitled to take into account this lack of any contest in affirming his ex parte orders and dismissing the respondents’ review application.”

You can read the full decision here.

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