The 94th Avenue Beauty Salon Inc. v. Neglia, et al., 2010 ONSC 653
CITATION: The 94th Avenue Beauty Salon Inc. v. Neglia, et al., 2010 ONSC 653
DIVISIONAL COURT FILE NO.: 411/09 and 412/09
DATE: 20100127
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
THE 94TH AVENUE BEAUTY SALON INC.
Plaintiff
– and –
PERRY NEGLIA, JARMIL KULIK, LYNNE GASPINI, ANDRIJANA STIJELJA, STEPHEN JACKSON, DANIELA SINCLAIR, PAUL JONES, BRIAN MENZIES, and GLISS SALON INC.
Defendants
COUNSEL:
Angela Assuras and Robert Klotz, for the Plaintiff
Mark Wiffen, for the Defendants, Stephen Jackson, Daniela Sinclair, Paul Jones and Brian Menzies
Robert Di Vincenzo, for the Defendants, Perry Neglia, Jarmil Kulik, Lynne Gaspini, Andrijana Stijelja and Gliss Salon Inc.
HEARD: December 15, 2009
REASONS FOR JUDGMENT
Cunningham a.c.j.s.c.j.
[1] The plaintiff brings two motions seeking leave to appeal to the Divisional Court. The first deals with the order of Campbell J. dated June 15, 2009 and the second concerns a subsequent order of Campbell J. dated July 2, 2009.
[2] The background is well set out in the respective facta and need not be repeated here. As a result of circumstances therein outlined, the plaintiff moved for an ex parte Anton Pillar order, which, on June 3, 2009, was granted by Campbell J. The terms of this order are set out in the material filed before me which apparently was modeled on a precedent order developed in the commercial list. The order was to remain in force for a period of ten days, returnable June 15, 2009.
[3] On the return of this motion, Campbell J., without the benefit of affidavit material from the defendants (the plaintiff had buttressed its material), but with the benefit of hearing from counsel for the defendants, dismissed the plaintiff’s motion to continue the Anton Pillar order. He further ordered that the seized material remain in the possession of the Independent Supervising Solicitor (“ISS”) for 14 days to permit the plaintiff to consider its options. As the plaintiff points out, there was no motion from the defendants to set aside the Anton Pillar order.
[4] Campbell J., as noted in his reasons, came to the conclusion on June 15, 2009, “as arguments continued” that the original motion should have been brought with notice, and he set aside the Anton Pillar order. This somewhat confusing portion of the endorsement led to more complete reasons dated June 19, 2009, in which Campbell J. confirmed his earlier view that notice ought to have been given in the first instance. After considering the material before him on June 15, 2009, Campbell J. concluded that it did not “identify with sufficient specificity that each of those Defendants had or took colour cards or other confidential information to justify the intrusion that accompanies the Order.” It should be noted that by then the earlier order had been executed.
[5] In paragraph 10 of his June 15, 2009 reasons, Campbell J. concluded that, while suspicious, the evidence fell short of prima facie proof of concerted action. In essence, after a reconsideration on June 15, 2009, Campbell J. determined that perhaps an injunction might have sufficed at first instance. Clearly, he was concerned about the intrusiveness of the ex parte order.
[6] Following the June 19, 2009 reasons, to enable the order of June 15,2009 to be finalized, counsel sought clarification. This resulted in a Clarification Endorsement dated September 1, 2009. Without exactly saying so, Campbell J. appears to have accepted the submissions of counsel for the defendants that the Anton Pillar order should not be continued. He recognized there was no motion by the defendants to set aside the Anton Pillar order, nevertheless he concluded, because of its overly intrusive nature, that the order should not continue. It should be noted that the July 9, 2009 appointment was in the context of the plaintiff’s motion to seek leave to appeal the June 15, 2009 order. Paragraphs 6, 7 and 9 of Campbell J’s September 1, 2009 Clarification Endorsement, do seem to suggest that the June 15, 2009 decision did not dismiss the Anton Pillar order. Rather, it simply did not continue it. As earlier noted, the June 3, 2009 Anton Pillar order was good for a period of ten days. Without it being ordered continued, it would be of no force and effect after June 13, 2009 in any event. The onus at the June 15, 2009 hearing was upon the plaintiff to demonstrate it should be continued. Campbell J., it would seem, concluded they had not met the onus. By then of course the seizure had occurred (June 4, 2009) and the only issue was what to do with the material held by the ISS.
[7] The moving party before me argues that Campbell J., on June 15, 2009, overstepped his bounds by setting aside the ex parte order on his own initiative and, accordingly, not being given an opportunity to respond, they say there was a denial of natural justice. I disagree.
[8] Complicating matters, the plaintiff moved on July 2, 2009 for relief under Rules 30.04(5) and 45. As well, they sought an Anton Pillar order on notice. In a handwritten endorsement dated July 2, 2009 (and in the typed version dated July 10, 2009) Campbell J. sought to maintain the status quo given that the plaintiff had brought a motion for leave to appeal the June 15, 2009 decision. Clearly, Campbell J. was frustrated by the overly litigious nature of the proceedings. For reasons expressed, he dismissed the relief sought under Rules 30 and 45.
[9] As a result of the two orders (June 15, 2009 and July 10, 2009) disputes arose between counsel regarding the terms of the order. As noted, a clarification endorsement dated September 1, 2009 was issued by Campbell J. to permit the finalization of the two orders.
[10] This being a motion for leave to appeal the two orders, the terms of Rule 62.02(4) must be met. For the brief reasons that follow, I am not persuaded the moving party has met the test and accordingly the motions for leave are dismissed.
[11] As to the June 15, 2009 order, on close examination of the evidence filed and because there was by then no real concern about evidence being destroyed, Campbell J. dismissed the motion to continue the Anton Pillar order. Clearly, in his view, the plaintiff’s evidence failed to satisfy the Celanese test. In his review of the Anton Pillar order, Campbell J., as he was entitled to do, considered the matter de novo and concluded, again as he was entitled to do, on the material before him, that the order should not be continued. There simply was no strong prima facie case made out. Given the factual similarity, I am guided by Axiom Services Ltd. v. Weigert, [2005] B.C.J. No. 322. There are no conflicting cases and there is no good reason to doubt the correctness of the June 15, 2009 order. Moreover, the proposed appeal fails to meet the second part of Rule 62.02(4(b).
[12] As to the July 2, 2009 order, there is no reason to doubt the correctness of this discretionary order. The material presented on July 2, 2009 added little if anything to that filed on the June 15, 2009 motion as Campbell J. properly concluded in making his factual determination. Moreover, there was no denial of natural justice in respect of the July 2, 2009 order, given that the Anton Pillar issue was very much the subject matter before Campbell J. on that occasion. The court has inherent equitable jurisdiction and it was properly exercised on this occasion. Again, as I have noted, whether the ex parte order had expired or whether it was set aside is of no real consequence.
[13] The motions having been dismissed, the defendants are entitled to their costs. If these cannot be agreed upon, I refer the matter back to Campbell J. for his consideration.
Cunningham A.C.J.S.C.J.
Released: January 27, 2010
CITATION: The 94th Avenue Beauty Salon Inc. v. Neglia, et al., 2010 ONSC 653
DIVISIONAL COURT FILE NO.: 411/09 and 412/09
DATE: 20100127
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THE 94TH AVENUE BEAUTY SALON INC.
Plaintiff
BETWEEN:
PERRY NEGLIA, JARMIL KULIK, LYNNE GASPINI, ANDRIJANA STIJELJA, STEPHEN JACKSON, DANIELA SINCLAIR, PAUL JONES, BRIAN MENZIES, and GLISS SALON INC.
Defendants
REASONS FOR JUDGMENT
Cunningham A.C.J.S.C.J.
Released: January 27, 2010