DIVISIONAL COURT FILE NO.: 648/15
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: The Catalyst Capital Group Inc. v. Moyse and West Face Capital Inc.
BEFORE: Swinton J.
COUNSEL: Rocco Di Pucchio and Lauren Epstein, for the Plaintiff (Moving Party)
Kent E. Thomson and Matthew Milne-Smith, for the Defendant West Face Capital Inc. (Responding Party)
Robert A. Centa, for the Defendant Brandon Moyse (Responding Party)
HEARD at Toronto: January 21, 2016
ENDORSEMENT
1The Catalyst Capital Group Inc. (“Catalyst”) has brought a motion to extend time to bring a motion for leave to appeal and, if leave is granted, seeks leave to appeal two parts of an interlocutory order made by Glustein J. dated July 7, 2015:
the dismissal of the request for an order to authorize the Independent Supervising Solicitor (“ISS”) to create and review forensic images of the corporate servers of the responding party West Face Capital Inc. (“West Face”) and the electronic devices used by five individuals at West Face (the “Imaging Order”); and
the dismissal of a request for an order that the responding party Brandon Moyse be found in contempt because of his failure to comply with a court order (the “Contempt Order”).
2In granting an extension of time, the court considers four factors. The overarching consideration is the justice of the case. Those factors are:
whether the moving party formed an intention to appeal within the relevant period;
the length of the delay and the explanation for it;
prejudice to the responding party; and
the merits of the appeal.
(See Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131 at para. 15.)
Intention to appeal in the relevant period
3I am satisfied that Catalyst formed an intention to appeal within the relevant period, as it filed a Notice of Appeal to the Court of Appeal on July 22, 2015, and it pursued that appeal.
The length of the delay and the explanation for the delay
4Two days after the Notice of Appeal was served, counsel for both West Face and Mr. Moyse informed counsel for Catalyst that Catalyst was in the wrong court, because the orders under appeal were interlocutory. Catalyst continued with its appeal, which required the responding parties to bring motions to quash the appeal.
5Sometime in October 2015, Catalyst consented to West Face’s motion to quash, but it continued to oppose Mr. Moyse’s motion. The Court of Appeal granted Mr. Moyse’s motion to quash the appeal on November 17, 2015. The Notice of Motion seeking an extension of time to file a motion for leave and the Notice of Motion for leave to appeal were served November 27, 2015. The motions were heard January 2