CITATION: Jethwani v. Damji, 2010 ONCA 270
DATE: 20100414
DOCKET: C51032
COURT OF APPEAL FOR ONTARIO
Goudge, MacFarland and LaForme JJ.A.
AND IN THE MATTER OF AN INTERIM RECEIVERSHIP ORDER ON THE HONOURABLE MR. JUSTICE GROUND DATED MAY 7, 2002 AS AMENDED
BETWEEN:
Nyaz Jethwani
Plaintiff (Appellant)
and
Salim Damji and Strategic Trading Systems Instant White (also known as STS Instant White or Strategic Trade Systems or STS Inc.), JEM Holdings a division of 1289629 Ontario Inc., IZMO Investments Inc., Shaffin Damji, Hanif Damji, Olympic Sports Data Services, Limited and Spiros G. Athanas
Defendants
IN THE MATTER OF THE CLASS PROCEEDINGS ACT
Maurice J, Neirinck, for the appellant
Clifton P. Prophet, for the respondent
Heard: March 30, 2010
On appeal from the order of Justice James M. Spence of the Superior Court of Justice dated September 9, 2009.
ENDORSEMENT
[1] The appellant does not contest the legal principles from Soundair Corp. that were applied by the motion judge. Rather, he argues that there was no evidence before the motion judge to sustain the findings made, which are the basis for the motion judge concluding that the required criteria for approving this settlement are met.
[2] We disagree. The most important finding is that no assets beyond the Swiss accounts are locatable or realizable in any reliable way. There was ample evidence in the Interim Receiver’s various reports to this effect, and as well, all the steps it had taken in reaching that conclusion. Moreover the appellant offered no contrary evidence. There is therefore no basis for the court to interfere with this finding of fact by the motion judge.
[3] Beyond the amount realistically available, the other important fact is the chance of litigation success. The legal opinion that there is a sixty percent chance of success in the California litigation was before the motion judge and is not seriously contested by the appellant. There was ample basis for the motion judge adopting it.
[4] Moreover, there has been ample disclosure to the appellant on both these subjects.
[5] There was also ample basis for approving the amendment to the retainer agreement in the material before the motion judge.
[6] Finally, the motion judge carefully took into account the interests of the creditors. While their disappointment about their own lack of recovery is understandable, that is no basis to deny approval of the settlement that the trial judge found, on the basis of the evidence before him, to be the best that could be achieved in the circumstances.
[7] The appeal is dismissed. The respondent is to have its costs on a partial indemnity basis from the appellant fixed at $20,000 inclusive of disbursements and G.S.T.
“S.T. Goudge J.A.”
“J. MacFarland J.A.”
“H.S. LaForme J.A.”