Court File and Parties

CITATION: Strassle Informationssysteme Holdings GmbH v. Sieber, 2010 ONCA 604

DATE: 2010-09-17

DOCKET: C51829

COURT OF APPEAL FOR ONTARIO

MacPherson, Gillese and MacFarland JJ.A.

BETWEEN

Klaus Albert Maier, in his capacity as trustee in bankruptcy of Strassle Informationssysteme Holdings GmbH

Plaintiff (Respondent)

and

Helmut J. Sieber

Defendant (Appellant)

Counsel: Geoff R. Hall and Erica Richler, for the appellant George Benchetrit, for Strassle Informationssysteme Holdings GmBH Benjamin Bathgate, for Bayerische Landesbank Girozentrale

Heard and released orally: September 17, 2010

On appeal from the order of Justice James M. Spence of the Superior Court of Justice dated February 11, 2010.

ENDORSEMENT

[1] The appellant Helmut Sieber appeals the order of Spence J. dated 11 February 2010 in which he refused to set aside the 9 June 2003 order of O’Connell J. permitting the respondent to enforce several German judgments in Ontario.

[2] A relevant contextual fact that, in our view, needs to be stated up front is that Mr. Sieber has been an undischarged bankrupt since 9 March 2005. On that date, Mr. Sieber’s sworn statement of affairs in his bankruptcy proceeding disclosed assets valued at $4404 and liabilities of more than $35,000,000.

[3] In the motion before Spence J., the appellant sought to set aside O’Connell J.’s 2003 order on the basis that a mutual release signed in 2001 in a separate action in Ontario precludes O’Connell J.’s order enforcing the German judgments.

[4] In a brief decision, Spence J. concluded that “the release does not apply to release Strassler’s [the respondent’s] claims.”

[5] We agree with the motion judge’s decision. The language of the release in question does not support the argument that it was intended to extinguish the respondent’s enforcement claim as it extends only to the parties to a separate piece of litigation commenced in 1998 to which the respondent was never a party.

[6] The appellant attempts to overcome this result by tendering as fresh evidence a settlement agreement concluded alongside the release on which he relies.

[7] We would not admit this agreement as fresh evidence. The simple fact is that the respondent asked the appellant to include this agreement in its motion material that was before Spence J. and the appellant refused on the basis that, as expressed in an e-mail from the appellant’s previous counsel, “my client has determined that the settlement agreement is not relevant, nor germane to the release”. It would be unfair to permit the appellant, with new counsel, to advance precisely the opposite position on this appeal.

[8] Moreover, we observe that the tendered material does not meet at least two of the four Palmer criteria – the material was available to the appellant at the time of the hearing before the motion judge and the wording in the Settlement Agreement would not reasonably be expected to have affected the result on the motion below.

[9] We do not accept that a proper interpretation of the words “amongst”, “affiliates” and “releasing all obligations” would have affected the motion judge’s interpretation of the release because the respondent was not a party to the relevant actions and, in the circumstances, would not be encompassed by the word “affiliates”.

[10] In light of this conclusion, the other issues raised by the appellant need not be addressed.

[11] The appeal is dismissed.

[12] The respondents are entitled to their costs of the appeal fixed at $10,000 inclusive of disbursements and applicable taxes, payable by both Helmut Sieber and 1427868 Ontario Ltd.

“J. C. MacPherson J.A.”

“E. E. Gillese J.A.”

“J. MacFarland J.A.”