Court of Appeal for Ontario

CITATION: Atlas Holdings & Investments Inc. v. Vratsidas, 2011 ONCA 574

DATE: 20110906

DOCKET: C53379 and C53385

Sharpe, Armstrong and Karakatsanis JJ.A.

BETWEEN

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

Plaintiffs (Respondents)

and

George Vratsidas, Athanasia Vratsidas, Maria Vratsidas, Shawna Vratsidas, Constantinos Vratsidas, 1715034 Ontario Inc. carrying on business as First Maintenance Solutions, Krzysztof Plewa, and First Maintenance Solutions Ltd.

Defendants (Appellants)

Rod Byrnes for the appellants

Glenn E. Cohen, for the respondents

Heard and released orally: August 24, 2011

On appeal from the judgment of Justice Peter A. Cumming of the Superior Court of Justice dated January 24, 2011.

ENDORSEMENT

[1] The plaintiffs, respondents in these appeals, commenced this action on April 17, 2007 for the fraudulent transfer of assets of Canaclean Building Services Inc., a bankrupt corporation.

[2] On November 29, 2010, Campbell J. of the Superior Court of Justice permitted an amendment to the Amended Amended Statement of Claim which added First Maintenance Solutions Ltd. (“First Maintenance”) as a party defendant and added a second round of claims for the fraudulent transfer of assets against George Vratsidas and the other defendants. Such claims are alleged to have been transferred to First Maintenance. Counsel for both First Maintenance and George Vratsidas appeared on the motion before Campbell J.

[3] After the amendments were made First Maintenance and George Vratsidas moved under rule 21 to strike the added claims against them on the basis that the claims asserted were statute barred as outside the two year limitation period pursuant to s. 4 of the Limitations Act. Cumming J. of the Superior Court dismissed the rule 21 motion. First Maintenance and George Vratsidas appeal the order of Cumming J.

[4] The main issue before Cumming J. was discoverability. Essentially, counsel for First Maintenance and George Vratsidas argued that searches of the Ontario Business Information System in respect to the name “First Maintenance Solutions”, would have ultimately led the plaintiffs to the discovery of the second round of transfers in 2007. Cumming J. rejected this submission. He concluded in paragraphs 13, 18 and 19 of his reasons:

In my view, all that a search determining the cancellation by 1715034 of the registered business name “First Maintenance Solutions” would tell the party making the search was that the registered business name was cancelled as of February 28, 2008. It would not in itself suggest a new corporation with that name. Moreover, a search of the Defendant 1715034 as of that date would indicate that 1715034 continued to be actively carrying on a janitorial services business.

I am not satisfied that it is plain, obvious and without doubt that the impugned claim cannot succeed.

Moreover, I view the motion to strike as being a collateral attack on the Order of Campbell J. to add FMSL as a party, being in effect an attempt to appeal or set aside that Order.

[5] We agree with the conclusion of Cumming J. The appeals are therefore dismissed.

[6] Costs to the respondents are fixed at $7,468.38 including disbursements and applicable taxes.

“Robert Sharpe J.A.”

“Robert P. Armstrong J.A.”

“Karakatsanis J.A.”