Kapuscinski v. Aristos Capital Corporation et al., 2000 ONCA 16844

Case Summary

The appellant challenged an order dismissing an action against individual corporate officers. The court held that the pleadings against one respondent, if proven, could establish the tort of negligent misrepresentation, and found that the motions judge failed to apply or misapplied appellate authority rejecting a principled immunity for corporate officers acting in the interests of the corporation. The appeal was therefore allowed in part, with the dismissal set aside as against one individual respondent. Costs of the appeal and below were awarded to the appellant.

COURT OF APPEAL FOR ONTARIO

DATE: 20000922

DOCKET: C33375

RE: RICHARD KAPUSCINSKI (Appellant) –and– ARISTOS CAPITAL CORPORATION, CHEMICAL MARKETERS INC., AIRBORNE TECHNOLOGIES INCORPORATED, J. MURRAY McCANN and RICHARD A. KNOLL (Respondents)

BEFORE: FINLAYSON and CARTHY JJ.A. and SIMMONS J. (ad hoc)

COUNSEL: Leigh Ann Osbaldiston, for the appellant

Laurel C. Broten, for the respondent

HEARD: September 12, 2000

On appeal from the order of The Honourable Mr. Justice Nick Borkovich dated November 25, 1999.

E N D O R S E M E N T

[1] Counsel for the appellant concedes that the appeal with respect to the named respondent J. Murray McCann is weak. She argues that the pleadings with respect to Richard A. Knoll could have been better but nevertheless would, if proven in evidence, establish the tort of negligent misrepresentation as against him. We agree with this.

[2] The motions judge gave no reasons for dismissing the action against both individuals. It is apparent that he did not apply or misapplied the judgments of this court in ScotiaMcLeod Inc. v. Peoples Jewellers Limited (1995), 1995 1301 (ON CA), 26 O.R. (3d) 481 (C.A.) and ADGA Systems International Ltd. v. Valcom Ltd. (1999), 43 O.R. (3d) 1010 (C.A.). In these cases, it was held that there was no principled basis for protecting an officer of a company from liability for his alleged conduct on the basis that such conduct was in pursuance of the interests of the company that he represented.

[3] Under these circumstances, the appeal is allowed, the judgment below is set aside to the extent of dismissing the motion as against the named defendant Richard A. Knoll.

[4] The appellant is entitled to its costs of this appeal, here and below.

Signed: “G.D. Finlayson J.A.”

“J.J. Carthy J.A.”

“J. Simmons J. (ad hoc)

Kapuscinski v. Aristos Capital Corporation et al., 2000 ONCA 16844

Case Summary

COURT OF APPEAL FOR ONTARIO

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