ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
MYGAR CAPITAL CORPORATION
Plaintiff
- and -
113 DUPONT HOLDINGS LIMITED
Defendant
Jeffrey B. Simpson, for the Plaintiff
David A. Taub, for the Defendant
HEARD: June 18, 2003
BENOTTO S. J.: (Orally)
1This is a motion for leave to appeal the order of Gans J. dated May 27, 2003. At that time he dissolved the ex parte order granted by Nordheimer J. on May 2, 2003.
2The dispute in issue was between a commercial landlord and tenant. The tenant was locked out of its premises and brought the motion without notice before Nordheimer J.
3Nordheimer J. did express some concern about the lack of notice but granted the order.
4On the return of the motion before Gans J., oral evidence was admitted. Gans J. expressed concern that Nordheimer J. was misled about the attempts to give notice. He however felt that he would not speculate on that point. He did find however that there were two misstatements on the ex parte motion:
(i) that Nordheimer J. was not told that the tenant was a single purpose holding company and could not suffer irreparable harm; and,
(ii) that the tenant "did not have the wherewithal" to abide by an undertaking.
5Gans J. dissolved the ex parte order. The moving party argues here that these two facts were not material and did not need to be disclosed. I disagree. I find that they were fundamental to the granting of an injunction.
6Counsel also alleges that the failure to make disclosure is not necessarily fatal to the continuation of an ex parte injunction.
7The continuation of an ex parte injunction is the exercise of discretion. Gans J. on the basis of non-disclosure, refused to continue the order. In my view, he was correct. The high onus of complete full and fair disclosure is axiomatic and must be enforced by the courts.
8There are no conflicting decisions. O'Driscoll J.'s decision is not conflicting. The exercise of discretion by a one judge on a different set of facts with a different result does not amount to a conflicting decision for purposes of leave to appeal. In my view, there is no reason to doubt the correctness of the Order, therefore the test for leave has not been met and the motion is dismissed. Costs fixed at $2,500, payable forthwith.
BENOTTO S. J.
Date of Reasons for Judgment: June 18, 2003
Date of Release: June 26, 2003
COURT FILE NO.: 03-CV-248185 CM3
DATE: 20030618
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
MYGAR CAPITAL CORPORATION
Plaintiff
- and -
113 DUPONT HOLDINGS LIMITED
Defendant
ORAL REASONS FOR JUDGMENT
BENOTTO S. J.
Date of Reasons for Judgment: June 18, 2003
Date of Release: June 26, 2003