DATE: 20051207
DOCKET: C43506 & C43507
COURT OF APPEAL FOR ONTARIO
RE:
ROYAL BANK OF CANADA (Plaintiff/Respondent) – and – UNIVERSAL FOODS INC.; TOP STAR DISTRIBUTION INC., MISCO HOLDINGS INC., FARHAD TAVAF RASHTI, SEYED MOHAMMAD RAHMATI; HOSSEINGHOLI MISSAGHI and PARICHEHR MISSAGHI
BEFORE:
GOUDGE, BLAIR and LAFORME JJ.A.
COUNSEL:
James Morton
for the appellant
Rachel Moses
for the respondent
HEARD & RELEASED ORALLY:
November 30, 2005
On appeal from the judgment of Justice James Farley of the Superior Court of Justice dated April 25, 2005.
E N D O R S E M E N T
[1] We see no basis for interfering with the orders appealed from. The appellants do not attack the finding that they failed to comply with the order of Farley J. dated October 15, 2004. That order provided in paras. 2 and 4 as follows:
THIS COURT ORDERS that Top Star and Misco shall make full, complete and accurate disclosure of all documents in their power, possession or control relating to the matters in issue in this proceeding, by no later than November 30, 2004, peremptory to Top Star and Misco.
THIS COURT ORDERS that, failing full, complete and accurate compliance by Top Star and Misco with their aforesaid production obligations by no later than November 30, 2004, the statements of defence of Top Star and Misco shall be struck out.
[2] In his reasons underlying that order, Farley J. declined at that time to strike the defences and granted the appellants until November 30, 2004, to comply with their production obligations. But he noted, at para. 3:
That request is granted – but the time deadline is peremptory to the absolute degree; failure to comply will be on the UNLESS basis – that is their Statement of Defence will be struck unless there is that compliance by November 30, 2004.
[3] Mr. Morton argues that notwithstanding Justice Ground’s finding of non-compliance with the order of Farley J., Justice Ground failed to exercise a discretion not to strike the pleading. In our view, the strong terms of Farley J.’s order rightly had a very significant impact on the motion judge’s approach to the issue and there was nothing in the circumstances, including the fresh evidence, to justify his interference with the consequences of the failure to comply with the order of Farley J. Ground J. in effect said as much in para. 6 of his reasons.
[4] The appeal is therefore dismissed. Costs are fixed at $10,000 inclusive of disbursements and GST payable to the respondent.
“S.T. Goudge J.A.”
“R.A. Blair J.A.”
“H.S. LaForme J.A.”