Court File and Parties

Citation: Marsh Engineering Limited v. Deloitte & Touche Inc., 2009 ONCA 648

Date: 20090911

Docket: C49786

Court of Appeal for Ontario

Winkler C.J.O., Sharpe and Armstrong JJ.A.

Between

Marsh Engineering Limited, Daniel Russell and 603126 Ontario Limited

Plaintiffs/Appellants

and

Deloitte & Touche Inc. and Bank of Nova Scotia

Defendants/Respondents

Counsel:

Robert Klotz, for the appellants

George Benchetrit, for the respondent Deloitte & Touche Inc.

Heard and released orally: September 8, 2009

On appeal from the judgment of Justice Peter A. Cumming of the Superior Court of Justice dated December 3, 2009.

Endorsement

[1] The appellants moved before Justice Cumming for leave nunc pro tunc under s. 215 of the Bankruptcy and Insolvency Act to commence a claim against Deloitte & Touche Inc., the former interim receiver and trustee in bankruptcy. The motion was dismissed by the motion judge. The appellants appeal to this court and ask that we reverse the order of the motion judge and grant leave to commence the action against Deloitte & Touche Inc.

[2] In this court, counsel for the appellants advises that the appellants intend to limit their claim to breach of fiduciary duty which he concedes is not well pleaded. We note that the alleged breach of fiduciary duty is, in effect, against Deloitte & Touche LLP which is not a party to the action.

[3] In our view, there was no error committed by the motion judge. He correctly articulated the test for leave as: "A party seeking leave to commence an action against a receiver or trustee must demonstrate a prima facie case by sufficient affidavit evidence to ensure the claim's proper factual foundation."

[4] He reviewed the affidavit evidence in this case and concluded that the appellants have failed to provide any evidence that demonstrates a prima facie case to ensure the requisite factual foundation for the action at hand.

[5] We see no basis upon which to interfere with the order of the motion judge. The appeal is therefore dismissed. Costs are set at $10,000 plus GST as agreed by the parties payable by the appellants to the respondent, Deloitte & Touche Inc.

"W. Winkler C.J.O."

"Robert J. Sharpe J.A."

"Robert P. Armstrong J.A."