Court File and Parties

CITATION: Cirillo v. Royal Bank of Canada, 2009 ONCA 242

DATE: 20090318

DOCKET: C49222

COURT OF APPEAL FOR ONTARIO

Simmons, Armstrong and Juriansz JJ.A.

BETWEEN:

Salvatore Cirillo

Plaintiff (Appellant)

and

The Royal Bank of Canada, Anthony D’Amico, Joseph W. Quinn, Mahmood Chagani and BDO Dunwoody Limited

Defendants (Respondents)

Peter B. Cozzi, for the appellant

Catherine Francis and Rachel Moses, for the respondents

Heard and released orally: March 6, 2009

On appeal from the judgment of Justice Geoffrey B. Morawetz of the Superior Court of Justice dated July 9, 2008.

ENDORSEMENT

[1] It is unnecessary that we address the appellant's submissions that the motion judge erred by confusing the legal test for malicious prosecution with the legal test for abuse of process and that he erred in concluding that the abuse of process about which the appellant now complains was determined by Winkler J. In our view this appeal cannot succeed in any event.

[2] The appellant's main complaint is that the motion judge erred in failing to find that there is a genuine issue for trial in the appellant’s action for abuse of process concerning whether the bank brought the bankruptcy proceeding for the improper purpose of purchasing the appellant’s share in 479004 Ontario Limited and its action against the bank.

[3] We disagree. As noted by the motion judge, the appellant had the opportunity to purchase those assets, the proposed sale was brought before the court for approval; the appellant did not object to the sale; and the appellant did not appeal the order for sale, nor bring any motion to vary it or set it aside.

[4] Further, this very issue was dealt with by Sommers J. in a motion to strike out certain claims against the bank. In dealing with that motion, Sommers J. struck these very same allegations, which had also been made under the rubric of conspiracy. In doing so, he specifically found that the bank did not have an improper purpose.

[5] In the circumstances, the motion judge did not err in holding there was no genuine issue for trial in the appellant’s abuse of process action.

[6] The appeal is therefore dismissed.

[7] Costs of the appeal are to the respondent in the amount of $8,957.49 inclusive of disbursements and GST.

“Janet Simmons J.A.”

“Robert Armstrong J.A.”

“Russell Juriansz J.A.”