DATE: 20011031
DOCKET: C35958
COURT OF APPEAL FOR ONTARIO
RE:
LARRY ZEBEDEE (Plaintiff/Appellant) –and– LOIS McLAUGHLIN and DEBORAH CANAVAN as Estate Trustees for NORMAN HICKSON, NATHAN KENNETH FRENCH and PAUL D. RUSSELL (Defendants/Respondents)
BEFORE:
CATZMAN, ABELLA and MOLDAVER JJ.A.
COUNSEL:
William E. Baker, for the appellant
J.C. Davies, for the respondents Estate of Norman Hickson and Nathan Kenneth French
Andrew A. Sanfilippo, for the respondent Paul D. Russell
HEARD:
October 29, 2001
On appeal from the judgment of Mr. Justice Clair Marchand dated February 15, 2001.
E N D O R S E M E N T
[1] We are not persuaded that Marchand J. erred in his conclusion that the claims asserted by the appellant are, with the possible exception of the conspiracy claim, derivative claims properly assertable by the corporation, not by the appellant.
[2] We agree with Marchand J. that any possible personal claim (such as the conspiracy claim) in the statement of claim is so intertwined with the essentially and substantially derivative claims that the entire pleading should be struck out.
[3] Accordingly, the appeal is dismissed with costs to the respondents.
Signed: “M.A. Catzman J.A.” “R.S. Abella J.A.” “M.J. Moldaver J.A.”