Atlas Holdings & Investments Inc. v. Plewa, 2009 ONCA 704

CITATION: Atlas Holdings & Investments Inc. v. Plewa, 2009 ONCA 704

DATE: 20091008

DOCKET: C50291 (M38017)

COURT OF APPEAL FOR ONTARIO

Feldman, Cronk and Gillese JJ.A.

BETWEEN

Atlas Holdings & Investments Inc. and Atlas Maintenance Systems (A) Inc.

Plaintiffs

and

George Vratsidas, Athanasia Vratsidas, Maria Vratsidas, Shawna Vratsidas, Constantinos Vratsidas, 1715034 Ontario Inc. carrying on business as First Maintenance Solutions, Kristopher Plewa, Roderick John Byrnes and Brian T. Chan

Defendants

AND BETWEEN

Kristopher Plewa and 1715034 Ontario Inc.

Plaintiff by counterclaim (Appellant on Appeal)

and

George Gianopoulos, Glenn Cohen, Atlas Holdings & Investments Inc., Atlas Maintenance Systems (A) Inc., and Chris Mantis

Defendants to the counterclaim (Respondents on Appeal)

David Martin, for the appellant

Ranjan Das, for the respondents

Heard: September 24, 2009

On appeal from the order of Justice G. B. Morawetz of the Superior Court of Justice dated March 12, 2009.

ENDORSEMENT

[1] The appellant seeks to set aside the motion judge’s order striking his counterclaim in action number CV-08-7591-00CL (the “2008 action”).

[2] It is uncontested that the claims advanced by the respondents against the appellant in the 2006 action, which action was eventually settled, overlap to some extent with the claims now sought to be pursued by the same respondents against the appellant in the 2008 action authorized under s. 38 of the Bankruptcy and Insolvency Act. In these circumstances, we do not agree that the appellant’s proposed counterclaim simply attempts to relitigate the issues in the 2006 action. On the contrary, by the matters raised in his proposed counterclaim, the appellant is seeking to prevent relitigation of the claims in the 2006 settled action.

[3] Accordingly, the appeal is allowed and paragraph three of the motion judge’s order dated March 12, 2009 is set aside. In all the circumstances, we award no costs in respect of this appeal.

“K. Feldman J.A.”

“E.A. Cronk J.A.”

“E.E. Gillese J.A.”