DATE: 20050916

DOCKET: C43350

COURT OF APPEAL FOR ONTARIO

RE:

PLANON SYSTEMS INC. AND DOUGLAS VERKAIK (Plaintiffs (Respondents))– and – NORMAN WADE COMPANY, RICHARD CLARE JACKSON, RICHARD NORMAN WADE, ALFRED COMRIE BUCKLEY, BETTY M. WADE, KEITH REGINALD DRAYCOTT, DOUGLAS HOWARD NORRIS, RONALD JOHN HICKS, CYRIL RICHARD McCARTHER, THOMAS ALBERT RONALDSON, ENTA DESIGN INC. and MICHAEL MORAND (Defendants (Appellants))

BEFORE:

WEILER, ROSENBERG and GILLESE JJ.A.

COUNSEL:

Andrew M. Robinson and Eugene Gierczak

for the appellants Michael Morand and Enta Design Inc.

Robert C. Christie, Michael Freeze

and Marcel Banasinski for the respondent

Planon Systems Inc.

HEARD & ENDORSED:

SEPTEMBER 15, 2005

On appeal from the judgment of Justice Susan E. Greer of the Superior Court of Justice, dated March 22, 2005.

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

[1] In our view, this appeal must succeed. The doctrine of res judicata cannot apply. The appellants were not parties to the prior proceeding. Nor were they privies in interest to those parties. There is no sufficiency of interest or identity between the appellants and the parties to the CCAA proceeding such that the decision in the CCAA proceeding ought to be binding upon them. The appellants did not participate on their own behalves in the CCAA proceedings. They were there as a witness on behalf of Planon. It would be unfair and unjust to prevent the appellants from having their defences fairly and fully adjudicated upon. This unfairness is evident in light of the letter from respondents’ counsel saying that any findings in the CCAA proceedings would not affect

in anyway proceedings against other parties on another day. That is, the issues of res judicata and issue estoppel would not arise.

[2] Costs to the appellants of the appeal fixed at $15,000, plus costs of the motion under appeal fixed at $20,000.