COURT FILE NO.: 545/04

DATE: 20050512

SUPERIOR COURT OF JUSTICE - ONTARIO

(Divisional Court)

RE: GERALD ANDREYECHEN, LIZETTE ANDREYECHEN,

MICHAEL ANDREYECHEN and JAMIE ANDREYECHEN

Plaintiffs

(Respondents)

• and -

CANADIAN IMPERIAL BANK OF COMMERCE and

ROBERT W. MORGAN

Defendants

(Appellant)

BEFORE: Mr. Justice Carnwath

COUNSEL: Michael Cochrane, for the Plaintiffs/Respondents

Jonathan Lisus, for the Defendant, Robert W. Morgan

HEARD: May 10, 2005

E N D O R S E M E N T

CARNWATH J.:

[1] The appeal is granted and the order of Master Abrams is set aside.

[2] Costs of the appeal to the defendant Robert Morgan fixed (on consent) at $1,500, inclusive of fees, disbursements and GST.

[3] Costs of the motion before Master Abrams to the defendant Robert Morgan fixed (on consent) at $1,183.83, inclusive of fees, disbursements and GST.

REASONS

[4] In considering this appeal, I must be satisfied the Master is correct on questions of law. Otherwise, to allow the appeal I must find she was clearly wrong in the exercise of her discretion. Regrettably, I have concluded she was clearly wrong in permitting the two sons to discontinue.

[5] The Master’s decision must be viewed in the light of the proceedings. All the plaintiffs, the sons included, pleaded the following:

• The plaintiffs rented a safety deposit box

• The plaintiffs had access to the safety deposit box

• The plaintiffs placed into the box various items including $180,000 cash

• The defendant Morgan took the money that belonged to the plaintiffs

• The plaintiffs sought an injunction, certificate of pending litigation and payment into court

• The plaintiffs sought general and punitive damages

[6] Before the Master, it appears that the plaintiffs argued that the sons, Michael and Jamie, were made plaintiffs through “inadvertence”.

[7] The Master found as follows:

Michael and Jamie have no claim or title to the contents of the safety deposit box. Their evidence can be obtained, if required, through their parents or by way of discovery (this, of course, with leave of the Court). There is nothing before me to suggest that they are seeking to avoid discovery or that any real prejudice will accrue to the defendants if the Andreyechen sons are let out of the action at this time.

[8] With respect, the Master misconstrued the issue she had to decide in four particulars:

(a) The issue was not whether the sons had a claim or interest in the contents of the box, but rather whether, having pleaded as they did, they should be permitted out of the action half-way through the father’s examination-for-discovery. This is particularly so where the father’s evidence was that Jamie was present when the money was placed in the box. Their exit from the action removed the plaintiff’s right to examine them on their pleadings.

(b) There was real prejudice to the defendant Morgan who now finds himself in the position of having to ask the Court for leave to examine the sons, as a result of “inadvertence” on the part of the plaintiffs. I see no reason why the defendant Morgan should be penalized for the inadvertence of the plaintiffs. Counsel for the plaintiffs indicated on the motion before me a motion to examine the sons would be resisted.

(c) There was real prejudice to the defendant Morgan who, if successful, would expect to recover his costs, in an action where he is accused of theft. A substantial indemnity award is a possibility. There are now two less pockets from which to recover.

(d) The Master appears to have overlooked the fact the plaintiffs claim general damages and punitive damages.

[9] The whiff of a potential fraud pervades this matter. The Andreyechens took over thirty days to respond to the news that their $180,000 had been open to removal from the box. This failure to react to a potential loss of $180,000 is so far removed from common sense and ordinary life experience as to beggar description.

[10] For the above reasons, I find the Master misapprehended the evidence before her in permitting the sons to discontinue. I find her decision to be clearly wrong.

_____________________________

CARNWATH J.

DATE: 20050512