Court File and Parties

Citation: Cache Metals RRSP Inc. v. Cuff, 2015 ONSC 7856

Divisional Court File No.: 401/15

Court File No.: CV-14-500382

Date: 2015-12-15

Superior Court of Justice - Ontario

Re: Cache Metals RRSP Inc. and Cache Precious Metals Inc., Plaintiffs/Responding Parties

And: Atef Salama, Express Gold Refining Ltd. and Jeffrey Cuff, Defendants/Moving Parties

Before: H. Sachs J.

Counsel: Andrea J. Sanche, for the Defendants/Moving Parties John Philpott, for the Plaintiffs/Responding Parties

Heard at Toronto: In writing

Endorsement

[1] This is a motion for leave to appeal the decision of Akhtar J. in which he refused to set aside or strike out the orders of Corbett J. on the basis of fraud. In his decision, the motion judge found that the Defendants had established fraud, but he refused to strike or vary the orders because the fraud was not a factor in Corbett J.’s decisions to grant and maintain the order that he made.

[2] The Defendants seek leave under Rule 62.02(4)(b). Under Rule 62.02(4)(b), the moving party must establish that there is reason to doubt the correctness of the order in question and that the proposed appeal involves matters of such importance that leave to appeal should be granted. It is not necessary that the judge granting leave be satisfied that the decision in question was actually wrong – that aspect of the test is satisfied if the judge granting leave finds that the correctness of the order is open to “very serious debate”: Nazari v. OTIP/RAEO Insurance Co., [2003] O.J. No. 3442 (S.C.J.); Ash v. Lloyd’s Corp. (1992), 8 O.R. (3d) 282 (Gen. Div.). In addition, the moving party must demonstrate matters of importance that go beyond the interests of the immediate parties and involve questions of general or public importance relevant to the development of the law and administration of justice: Rankin v. McLeod, Young, Weir Ltd. (1986), 57 O.R. (2d) 569 (H.C.J.); Greslik v. Ontario Legal Aid Plan (1988), 65 O.R. (2d) 110 (Div. Ct.).

[3] The Defendants submit that there is good reason to doubt the correctness of the motion judge’s order because, while he stated the test to set aside an order on the basis of fraud, he erred in his application of that test.

[4] I disagree. As the motion judge found, in order for new evidence of fraud to form a basis for setting aside a decision, the fraud must concern a fact that is material to the claim or the defence, but need not necessarily amount to a fact whose disclosure would have changed the outcome. Further, to be material, a fact must be one which “would have been weighed or considered by the motions judge”.

[5] In this case, the motion judge found that the email that formed the basis for his finding of fraud was not material to Corbett J.’s decision because the Defendant, Cuff, had himself disavowed any defence based upon that email during his cross-examination. It flows from this that the email was not material to the Defendants’ defence

[6] The Defendants also fail to meet the second part of the test for leave to appeal under Rule 62.02(4)(b). The case does not raise an issue that goes beyond the interests of the parties. The law on setting aside Mareva injunctions on the basis of fraud is well-settled and there is no need for a panel of the Divisional Court to address it further.

[7] For these reasons, the motion for leave to appeal is dismissed. Failing agreement, the parties may address me in writing on the question of costs within 10 days from the release of this endorsement.

H. SACHS J.

Date: 2015-12-15