CITATION: Malamas v. Crerar Property Corp., 2010 ONSC 2883
DIVISIONAL COURT FILE NO.: 219/10
DATE: 20100517
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
WILLIAM MALAMAS
Plaintiff
(Moving Party)
– and –
CRERAR PROPERTY CORP., STEWART J. L. ROBERTSON, GEORGE FOULIDIS, CHRIS TATSIS, PANAGIOTA TATSIS, GARY CAPLAN and TEPLITSKY COLSON LLP
Defendants
CRERAR PROPERTY CORP.
Defendant/Respondent
In Person
Ronald Podolny and Ray Thapar, for the Defendants, Crerar Properties Corp. and Stewart J. L. Robertson
HEARD at Toronto: May 17, 2010
FERRIER J. (orally)
[1] The plaintiff seeks leave to appeal the decision of Matlow J. dated November 9, 2009, by which he dismissed the plaintiff’s motion to strike out the statement of defence of the defendant Crerar Property Corp.
[2] The plaintiff’s position before Matlow J. was that since the corporation had been dissolved for failure to comply with filing requirements, and remained dissolved at the time of the motion, the Corporation was a non-entity. That being so, it could not file a defence.
[3] Matlow J. noted the gap in the legislation which permits suit against a dissolved corporation but which does not specifically provide for the defence of the suit by the dissolved corporation. His observations concerning the sorry state of the legislation are apt.
[4] Matlow J. held that it was implicit in s.242(1)(b) of the Business Corporations Act, R.S.O. 1990, c.B-16 which permits suit against a dissolved corporation, that the corporation could defend. He held that to hold otherwise would produce an absurd result, namely, the plaintiff could sue, but the defendant could not defend itself.
[5] The plaintiff also argues that although s.241(5) provides for the revival of the corporation, and upon such revival shall be deemed for all purposes to have never been dissolved, the revival is subject to the rights acquired by any person during the period of dissolution.
[6] The plaintiff argues that he acquired the right to bring his motion to strike out the defence during the period of dissolution and the revival of the corporation cannot impair that right.
[7] This argument begs the very question the Court was required to decide below. It is at best a circular argument which has, in my view, no merit.
[8] In my view, Matlow J.’s interpretation of the legislation is correct. There is thus not good reason to doubt the correctness of the decision.
[9] The plaintiff therefore fails in reference to subsection (b) of Rule 62.02(4).
[10] Concerning the test in subsection (a) of the Rule, there are no conflicting decisions. The decisions referred to by the plaintiff in argument and in his material were decided before the current version of s.241(5) was enacted. This latest version provides that upon revival the corporation shall be deemed for all purposes to have never been dissolved – wording significantly different than earlier versions of the section.
[11] Accordingly, the plaintiff fails on the test in subsection (a) of Rule 62.02(4).
[12] On this basis, the motion for leave to appeal is dismissed.
[13] There is a second basis for dismissing the leave motion. The motion is now moot because the corporation has now been revived.
[14] The plaintiff raises in this context as well the same position concerning the right he acquired when the corporation was dissolved. I reject that submission for the same reasons, in the context of the mootness issue.
[15] Accordingly, leave to appeal is denied.
[16] Costs fixed at $6,500.00 including disbursements and GST, and so order.
FERRIER J.
Date of Reasons for Judgment: May 17, 2010
Date of Release: May 19, 2010
CITATION: Malamas v. Crerar Property Corp., 2010 ONSC 2883
DIVISIONAL COURT FILE NO.: 219/10
DATE: 20100517
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
WILLIAM MALAMAS
Plaintiff
(Moving Party)
– and –
CRERAR PROPERTY CORP., STEWART J. L. ROBERTSON, GEORGE FOULIDIS, CHRIS TATSIS, PANAGIOTA TATSIS, GARY CAPLAN and TEPLITSKY COLSON LLP
Defendants
CRERAR PROPERTY CORP.
Defendant/Respondent
ORAL REASONS FOR JUDGMENT
FERRIER J.
Date of Reasons for Judgment: May 17, 2010
Date of Release: May 19, 2010