Court of Appeal for Ontario

Docket: M49293/C58536

Judges: Doherty, Brown and Roberts JJ.A.

Parties

Between

Midland Resources Holding Limited, Alex Shnaider and Eduard Shyfrin Plaintiffs (Respondents)

and

Michael Shtaif, The Estate of Anthony Groag, Gregory Roberts, Eugene Bokserman, Ilya Entin, Irwin Boock a.k.a. Irwin Krakowsky and Stanton De Freitas Defendants (Appellants)

And Between

Michael Shtaif, Gregory Roberts, Eugene Bokserman, and Ilya Entin Plaintiffs by counterclaim (Appellant by counterclaim)

and

Midland Resources Holding Limited, Alex Shnaider and Eduard Shyfrin Defendants by counterclaim (Respondents by counterclaim)

Counsel

Michael Shtaif and Eugene Bokserman, acting in person

Symon Zucker, Kenneth Prehogan and Kim A. Mullin, for the respondent Midland Resources Holding Limited

Heard: In writing

Reasons for Decision

[1] By reasons released January 15, 2018 this court dismissed the motion by Michael Shtaif and Eugene Bokserman seeking a reconsideration of the April 20, 2017 decision of this court (the "Appeal Order") dismissing Bokserman's appeal of the U.S. $1.5 million judgment against him and allowing, in part, the appeal by Shtaif, reducing the judgment against him to U.S. $8.27 million: Midland Resources Holding Limited v. Shtaif, 2017 ONCA 320, 135 O.R. (3d) 481.

[2] Shtaif and Bokserman now bring a second motion for reconsideration. We have considered: their motion materials filed in June 2018; their reply motion materials filed at the end of July 2018; the missing exhibit filed at the end of August, in response to the request of the panel; and the further materials filed on September 5, 2018.

[3] We dismiss their motion for four reasons.

[4] First, although the moving parties style their motion as one seeking to set aside or vary the Appeal Order on the grounds of fraud, mistake and/or the existence of "significant new material facts," the affidavit of Bokserman filed in support of the second motion to reconsider for the most part simply repeats the arguments they made on the appeal about errors made by the trial judge, including the argument that Midland Resources Holding Limited ("Midland") did not suffer any damages. Those arguments were considered and dealt with by this court in its reasons for the appeal and the first motion to reconsider. In recycling arguments already considered and rejected by this court, the moving parties are abusing the process of this court: Hoang v. Mann Engineering Ltd., 2015 ONCA 838, at paras. 13-15.

[5] Second, the moving parties contend this court misunderstood the basis for their first motion to reconsider. They argue they brought their motion under r. 59.06(1) of the Rules of Civil Procedure – the accidental slip or omission rule – not r. 59.06(2)(d), which enables a party to seek to "obtain other relief than that originally awarded."

[6] The moving parties' notice of motion dated August 22, 2017 for their first motion to reconsider clearly stated, in para. 25, that they were relying on r. 59.06(2)(d). In their factum on the first motion to reconsider, the moving parties also advanced an argument under r. 59.06(1). However, as this court stated in para. 9 of its reasons on that motion, the moving parties "are not simply pointing out a 'mathematical oversight' in the trial judge's damage calculation, as they contend; they are advancing a theory of damages not argued on the appeal." Rule 59.06(1) clearly had no application in those circumstances.

[7] Third, Bokserman deposes that in February 2018 the moving parties learned of litigation between the principals of Midland, Alex Shnaider and Eduard Shyfrin, in the courts of Guernsey that had resulted in a February 14, 2017 order of the Royal Court of Guernsey, Ordinary Division, winding-up Midland (the "Winding-Up Order"). The order was affirmed on appeal on July 20, 2017. The moving parties contend that as a result of the Winding-Up Order, Midland "had no standing to proceed with the appeal."

[8] There is no merit in this submission. Midland obtained judgment against Bokserman and Shtaif as a result of the February 19, 2014 trial decision. That judgment was affirmed on appeal, although the amount of the judgment against Shtaif was reduced.

[9] At the time the appeal was argued in October 2016, no winding-up order had been made in respect of Midland. Rule 61.13.1, which applies only to the transfer or transmission of an appellant's interest or liability while an appeal is pending, has no application in the circumstances of this appeal. As well, the moving parties have filed no evidence that indicates the subsequent Winding-Up Order restricts the ability of the company or its joint liquidators to collect on its judgment against Bokserman and Shtaif. On the contrary, the Winding-Up Order specifically contemplates that Midland's liquidators will attempt to recover any assets belonging to or due to Midland. One such asset is the judgment against the moving parties.

[10] Finally, Bokserman's August 29, 2018 affidavit attached two articles published in certain Russian media reporting that criminal charges for economic offences recently were laid against Valentin Vinogradov and Peter Ganus, two witnesses who were called by Midland at the trial of this action. Bokserman suggests that since charges have been brought against Vinogradov and Ganus, their evidence given at trial cannot stand. The subject-matter of the charges reported in the Russian media does not involve the subject-matter of the dispute adjudicated at the trial of this action. It has no relevance to the moving parties' motion under r. 59.06.

[11] Accordingly, the moving parties' motion for reconsideration is dismissed.

[12] In its July 6, 2018 submissions letter, Midland's counsel did not seek costs of the motion. Accordingly, we will not order any.

[13] Midland does seek an order prohibiting the moving parties from making further motions in this proceeding without leave. Midland notes that the moving parties have not satisfied the $5,000 cost award made in the first motion to reconsider and submits that the motion by the moving parties was frivolous, vexatious and an abuse of the process of the court: r. 2.1.01(1).

[14] We conclude such an order is appropriate in the circumstances. The moving parties essentially sought to reargue their appeal on their first motion to reconsider. That motion having been dismissed after a written hearing – a procedure commonly used by this court on r. 59.06 motions – the moving parties have renewed their effort to re-argue the appeal. That is not a proper use of r. 59.06; it is an abuse of the process of the court. Consequently, we further order that Shtaif and Bokserman cannot initiate any further proceeding in this court unless they: (i) pay Midland the outstanding costs of the appeal and the first motion to reconsider; and (ii) obtain the leave of this panel to bring the proceeding.

[15] It should be obvious to the moving parties that any further recourse in respect of the judgment against them lies to the Supreme Court of Canada, not to this court: Hoang, at para. 7.

"Doherty J.A." "David Brown J.A." "L.B. Roberts J.A."