CITATION: Excalibur Special Opportunities LP v. Schwartz Levitsky Feldman LLP, 2013 ONSC 4901
DIVISIONAL COURT FILE NO.: 307/13
DATE: 20130722
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
EXCALIBUR SPECIAL OPPORTUNITIES LP
Applicant/Plaintiff
(Respondent in Appeal)
– and –
SCHWARTZ LEVITSKY FELDMAN LLP
Respondent/Defendant
(Proposed Appellant)
Margaret L. Waddell and Nasha Nijhawan, for the Plaintiff/Respondent (Respondent in Appeal)
Tim T. Farrell and Matthew M.A. Stroh, for the Respondent/Defendant (Proposed Appellant)
HEARD at Toronto: July 22, 2013
LEDERER J. (orally)
[1] This is a motion seeking leave to appeal an order allowing the plaintiff to continue an action commenced at a time when it was not properly registered to carry on business in Ontario.
[2] The plaintiff is a limited partnership. The Limited Partnerships Act, R.S.O. 1990, c. L. 16, s. 28, indicates that in the absence of proper registration (the required declaration demonstrating a change in its name not having been filed) cannot “maintain” an action without leave of the Court. There is no disagreement that leave should be granted. The issue is what the leave allows. Can the plaintiffs continue an action commenced while registration was not proper or are they required to start a new action now that leave has been granted.
[3] The question revolves around the meaning to be given the word “maintain”. Is its meaning restrictive such that it means “commence” or more expansive in that it includes the right to “continue” that which has already been started.
[4] The motions judge found that the latter interpretation is the correct one meaning that there was no need for a fresh action to be initiated.
[5] Leave is sought on the basis that there is a case which conflicts with the finding of the motions judge or that there is good reason to doubt the correctness of his determination (see Rule 62.02(4) of the Rules of Practice).
[6] There is no conflicting decision. The case relied on by the prospective appellant is D-B Service (Western) Ltd. v. Madrid Services Ltd. (1975), 1975 1039 (BC SC), 60 D.L.R. (3d) 299 (B.C.S.C.). There, the judge said at para. 18:
I feel that the wording … is quite clear and that it sets out that an extra-provincial company that is not registered is not capable of maintaining an action. I have found that this means that an unregistered extra-provincial company in British Columbia is not capable of commencing an action.
[7] The difficulty is that this finding was set aside a year later in Canadian Stockbreeders Service Ltd. v. Reimer, 1976 1491 (BC CA), [1976] B.C.J. No. 9 (B.C.C.A.). That case says at paras. 19 and 20:
The foregoing cases lead me to conclude that the word “maintain” as it is used in the Companies Act of this Province means that there must be some action already commenced to be maintained. I am of the opinion that the Legislature of this Province has not said no action may be commenced. That would be denying a foreign corporation access to the courts for the protection of its rights in law, whatever they might be. The denial of the right to commence proceedings could have drastic effect upon a foreign corporation. There are Statutes of Limitations and only some of the problems confronting a litigant. (sic)
The commencement of the action is not prohibited by the legislation; the maintaining of it is. When the action has been commenced in the Province, in my respectful opinion, it may be continued until someone prevents it from continuing and requires that something be done to qualify the company to maintain or continue its action.
[8] The prospective appellants say these statements are obiter and thus not determinative. The fact remains this statement has been consistently relied on in cases that have followed (see Beachwood A Sound Pacific Resources Development v. Ronquillo, 1996 BCPC 9, [1996] B.C.J. No. 2291, 1996 B.C.P.C. 9 (BC Prov. Ct.) at para. 49-52; G. Elmitt Construction Ltd. v. Kaplan (1992), 1 C.L.R. (2d) 219 (B.C.S.C.) at para. 22); Bridgedale AG v. Metro Weldtech Inc., [1984] B.C.W.L.D. 2857 (BC Co. Ct.) and Sudden Valley Community Assn. v. Buree, [1984] B.C.W.L.D. 2542 (BC Co. Ct.) at para. 6).
[9] D-B Services (Western) Ltd. v. Madrid Services Ltd. has been overruled by a series of cases that support the determination of the motions judge. This being so, there is no conflicting case relied on by the prospective appellants.
[10] There is no good reason to doubt the correctness of the decision made. The word “maintain” is not synonymous with the word “commence”. It means more. It allows for the continuation of an action that has already been commenced. This being so, neither of the introductory requirements found in Rule 62.02(4) of the Rules of Practice to obtain leave have been met. There is no requirement to consider the remainder of the rule.
[11] The motion is dismissed. Pursuant to the agreement of counsel, costs in the amount of $5,000 to Excalibur Special Opportunities LP to be paid by Schwartz Levitsky Feldman LLP.
LEDERER J.
Date of Reasons for Judgment: July 22, 2013
Date of Release: July 30, 2013
CITATION: Excalibur Special Opportunities LP v. Schwartz Levitsky Feldman LLP, 2013 ONSC 4901
DIVISIONAL COURT FILE NO.: 307/13
DATE: 20130722
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERER J.
BETWEEN:
EXCALIBUR SPECIAL OPPORTUNITIES LP
Applicant/Plaintiff
(Respondent in Appeal)
– and –
SCHWARTZ LEVITSKY FELDMAN LLP
Respondent/Defendant
(Proposed Appellant)
ORAL REASONS FOR JUDGMENT
LEDERER J.
Date of Reasons for Judgment: July 22, 2013
Date of Release: July 30, 2013