Court File and Parties

Citation: Marks & Marks LLP v. The Galetta Renewable Energy & Environmental Network Co-operative Corporation (Green), 2008 ONCA 291

Date: 2008-04-18

Docket: C47105

Court of Appeal for Ontario

Moldaver, Cronk and Blair JJ.A.

Between:

Marks & Marks LLP

Applicant (Appellant in appeal)

and

The Galetta Renewable Energy & Environmental Network Co-operative Corporation (Green), Henk Huizenga, Robert Farrell, Robert Arbuckle, Donald Murray, Stanley Headrick, David Dawson, Kenneth Pope, Edward Robinson, Sidney Squires, Robert Gardiner, Linda Dickson, Robert Van Eyk, Michael Mann, Michael Turner, John Thomas, Patricia Bethel, Stephanie Faint, Daniel Herrick, Peter Voteary, Birgit Van’t Foort, Tim Vant Foort, Janice McLean, Michael Dunlop, Benjamin Strehler, Greg Gault, Charles Davis, Barbara Campbell, Terrance Wapshall, Erik Bruton, Knowtech Solutions Inc., Valerie Kirkwood, Grant Dzuba, Kimberly O’Connor, Shawn O’Connor, Marlene Grant, Nicholas Baumberg, David O’Connor, Karen Bretzlaff, Andre Post, Micah Melnyk CA$H Belden, Valerie Parker, Graham Hudson, Earla Webster, Linda Shirley, Ryan Wallace, Tim Voteary, Doug Thorne, M. Jean Cunningham, John Cartwright, John Fraser, Jane Fulton, Robert Russett, Christopher Heap, Thomas Andrews, Oluf Andrews, Karen Kelland, N. Stuart Hitchcock, Ottfried Von Finckenstein, Elizabeth Bernstein, Hope Walton, Jeanne Buzek, Graham Saul, Margaret Nelson and Windfield Energy Inc.

Defendants (Respondents in appeal)

Counsel:

Richard R. Marks, for the appellant

Peter Kucherepa, for the respondents

Heard: April 9, 2008

On appeal from the Order of Justice Albert J. Roy of the Superior Court of Justice dated April 26, 2007.

Endorsement

[1] The appellant law firm sought an interpleader order to pay into court the sum of $87,487.14. There is no dispute that the appellant had no interest in those funds. Accordingly, they were the proper subject of the interpleader order granted by the application judge.

[2] However, the application judge also ordered that the further sum of $51,642.86 be paid into court. These funds, which previously had been held by the appellant as part of the same trust funds, were applied by the appellant in payment of an outstanding account rendered to the respondents. In respect of these funds, therefore, the appellant was not a disinterested stakeholder. To the contrary, it claimed a beneficial interest in those funds on account of unpaid fees and disbursements. Accordingly, an interpleader order in respect of at least $51,642.86 was not available. See rule 43.02(1) of the Rules of Civil Procedure.

[3] We also note that as the matter proceeded before the application judge, there was no application by the respondents for an order requiring the payment into court of the disputed $51,642.86, on any basis.

[4] In these circumstances, the interpleader order as fashioned by the application judge cannot stand.

[5] For the reasons given, paragraph one of the order of the application judge is set aside and an order is substituted in its stead directing the appellant law firm to pay the sum of $87,487.14 into court, by payment to the Accountant of the Superior Court of Justice in the form of a certified cheque or bank draft. Following such payment into court, the appellant law firm is released from any liability in respect of the funds paid into court.

[6] The appeal is allowed in accordance with these reasons. With respect to costs, we are concerned that the respondent “Green” made serious allegations of impropriety against the appellant law firm that, on the record before this court, have no evidentiary support. Accordingly, we would order costs of the appeal to the appellant in the amount of $10,000, plus disbursements and GST, payable by the respondent “Green”.

“M.J. Moldaver J.A.”

“E.A. Cronk J.A.”

“R.A. Blair J.A.”