DATE: 20041022

DOCKET: C40933

COURT OF APPEAL FOR ONTARIO

RE:

SHINER KIDECKEL ZWEIG INC., TRUSTEE IN BANKRUPTCY OF THE ESTATE OF BEETOWN HONEY PRODUCTS INC. (Appellant) – and – DONALD COUTURE AND BEVERLY COUTURE (Respondents)

BEFORE:

MOLDAVER, SHARPE JJ.A. and KILLEEN J. (ad hoc)

COUNSEL:

Peter J. Cavanagh for the appellant

Rachel Moses for the respondent

HEARD & ENDORSED:

October 22, 2004

On appeal from the order of Justice Harriet E. Sachs of the Superior Court of Justice dated October 1, 2003.

A P P E A L B O O K E N D O R S E M E N T

[1] We are not persuaded that we should interfere with the motion judge’s decision to vary the consent order which was procedural in nature. There was evidence that when the respondent consented to the terms of the order, his counsel, who had only recently been retained, was, through no fault of his own, unaware of material facts which arguably had a direct bearing on the terms of the order. In these circumstances, it was open for the motion judge to conclude, as she did, that the interests of justice would be served by varying the order and frustrated by denying that relief.

[2] With respect to the issue of litigation privilege, there was unanswered evidence that the Trustee had declared the existence and contents of the audit report to Mr. Pawlett and in our view, that evidence was sufficient to justify the order of the motion judge regarding disclosure of the report. That being so, it is unnecessary to decide the broader issue as to “if and when” a Trustee in Bankruptcy can claim litigation privilege.

[3] Accordingly, the appeal is dismissed with costs to the respondent fixed at $11,000 inclusive of disbursements and G.S.T. and all prior motions.

“M. J. Moldaver J.A.”