Court File and Parties
COURT FILE NO.: 574/06
DATE: 20061201
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: PADP HOLDINGS INC. and PETER SZIRMAK Plaintiffs/Responding Parties
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INFORMATION BALANCE, INC., VSS HOLDINGS INC., MK HORIZONS INC., GABOR SZIRMAK, JUDIT SZIRMAK, MICHAEL DOIRON, and KATALIN DOIRON Defendants/Moving Parties
BEFORE: Mr. Justice Carnwath
COUNSEL: Rocco Di Pucchio, for the Plaintiffs/Responding Parties Adam Stephens, for the Defendants/Moving Parties
HEARD: November 30, 2006
E N D O R S E M E N T
CARNWATH J.:
[1] In the Moving Parties’ factum, para. 41, it is stated that Lederman J. granted the order on the basis of his finding that Mr. Szirmak had established there was a “serious issue to be tried”. The statement is incorrect on two counts. Lederman J. found “a serious issue of oppression”. Second, he did not grant the order solely because he found a serious issue of oppression – he also considered the irreparable harm to Mr. Szirmak and found the balance of convenience to favour him.
[2] The appellant made much of the difference between “a prima facie case of oppression” and “a serious issue of oppression”, as found by Lederman J. On the facts as revealed in the Record, I find either test to be satisfied. While, in some instances, the difference may be significant, such is not the case here. I find no reason to doubt the correctness of his decision on this ground.
[3] I concede the re-instatement of employment is rare. Within the framework of the oppression remedy, it can not be said to be beyond the discretion of Lederman J.
[4] The failure to provide an undertaking does not automatically preclude the granting of an interlocutory injunction. If it was overlooked, a r. 59.06 motion may be brought.
[5] I find no good reason to doubt the correctness of Lederman J.’s decision.
[6] In any event, there is no principle involved in the exercise of Lederman J.’s discretion that brings into play the advancement of the administration of justice or that makes it desirable that leave should be granted.
CARNWATH J.
DATE: 20061201