132305 Canada Inc. v. Lapalme, 2009 ONCA 309
CITATION: 132305 Canada Inc. v. Lapalme, 2009 ONCA 309
DATE: 20090415
DOCKET: C49112
COURT OF APPEAL FOR ONTARIO
Laskin, Juriansz and Epstein JJ.A.
BETWEEN
132305 Canada Inc., Gaetan Turgeon, Jovalco Group Corporation, and Brigitte L. Turgeon
Plaintiff (Appellants)
and
Roger Lapalme, Claudette Lapalme, Paul Labelle, Royal Bank of Canada, Arnell Goldberg, Warren Stroud, Russell Kronick, Goldberg, Kronick & Stroud LLP, Gilles Gauthier, Gestions Vitrico Ltee, Raymond Chabot Inc. and Daniel A. Rozon
Defendants (Respondents)
Alfred S. Schoor, for the appellants
Eric Williams and Daphne Keenl Harrold (student-at-law), for the respondents Arnell Goldberg, Warren Stroud, Russell Kronick, Goldberg, Stroud & Kronick LLP and Agents for Roger Lapalme and Claudette Lapalme
Marc Doucet, for the respondents Gilles Gauthier, Gestions Vitrico Ltee, Raymond Chabot and Daniel A. Rozon
Heard and released orally: April 8, 2009
On appeal from the Order of Justice Hugh R. McLean of the Superior Court of Justice dated June 18, 2008.
ENDORSEMENT
[1] We agree with the observation implicitly made by the motion judge in paragraph 7 of his reasons that this action is a collateral attack on the order of Master Beaudoin. That order is final given, Lalonde J.’s order as upheld by this court.
[2] We also agree that the appellants’ action based on fraud before Master Beaudoin is therefore an abuse of process. The same can be said about the aspect of the claim in which the propriety of the sale is challenged. For that part of the claim to be successful, the factual findings of Cusson J. relating to the value of the property and encumbrances would have to be re-litigated. We see no basis for us to exercise our discretion to refuse to apply the principles of issue estoppel.
[3] The appeal is therefore dismissed.
[4] Costs of this appeal in favour of the respondents are fixed in the amount of $5,000 inclusive of GST and disbursements.
“John Laskin J.A.”
“R.G. Juriansz J.A.”
“G.J. Epstein J.A.”