COURT OF APPEAL FOR ONTARIO

CITATION: Alfano v. Piersanti, 2012 ONCA 442

DATE: 20120625

DOCKET: M40775 (C54547)

Rosenberg, Juriansz and Rouleau JJ.A.

BETWEEN

Bertina Alfano, Trustee of the Carmen Alfano Family Trust, Bertina Alfano, Italo Alfano, Trustee of the Italo Alfano Family Trust, Italo Alfano, Ulti Alfano Trustee of the Ulti Alfano Family Trust and Ulti Alfano

Plaintiffs (Respondents)

and

Terry Piersanti also known as Terry Scatcherd, Christian Piersanti, Piersanti and Co. Barristers and Solicitors, Piersanti and Co. Professional Corporation, 1269906 Ontario Limited, 1281111 Ontario Limited, 1281038 Ontario Limited, 1314112 Ontario Limited, 1281633 Ontario Limited 1281632 Ontario Limited,1466556 Ontario Limited, 3957331 Canada Inc., 3964400 Canada Inc., 3968626 Canada Inc.,4002598 Canada Inc., 4011902 Canada Inc., 6051685 Canada Inc., 6060439 Canada Inc.,6260365 Canada Inc., 6292470 Canada Inc., 6306560 Canada Inc., 6324223 Canada Inc., 6792715 Canada Inc., Yonge Centre Properties Inc., 6335144 Canada Inc.,TMJ Investments, Tara Piersanti also known as Tara Piersanti-Blake, Justin Piersanti and Morgan Piersanti

Defendants (Appellants)

Counsel:

James F. Diamond, for the moving party, the respondents

V. Ross Morrison and R. Samantha Chapman, for the appellants, Piersanti, et al.

Alana Shepherd, for the receiver

Heard: January 30, 2012

On appeal from the order of Justice Peter Cumming of the Superior Court of Justice, dated October 18, 2011, with reasons reported at 2011 ONSC 6155.

ENDORSEMENT

[1] Following a lengthy trial before Macdonald J. of two actions and an application, the Piersantis were found liable to the Alfano respondents for over $20 million. The appeal to this court from the judgment of Macdonald J. was argued in November 2011 and judgment rendered on May 9, 2012. Pending disposition of the appeal, Macdonald J.’s judgment had been stayed.

[2] On July 25, 2011, before the appeal was argued, the respondents commenced an action against the Piersantis and many others for inter alia conspiracy to conceal the Piersantis’ properties and assets with the intent of defrauding the respondents and other judgment creditors. In that action, the respondents seek an interim, interlocutory permanent injunction, various orders requiring the defendants provide information about their assets, a Mareva injunction, appointment of a Receiver, and declaratory relief, including a declaration that certain mortgages were made in violation of the Fraudulent Conveyances Act, R.S.O. 1990, c. F.29.

[3] On August 22, 2011, the respondents obtained an ex parte interlocutory order from Newbould J. granting a Mareva injunction and appointing a receiver.

[4] A motion by the appellants for an interim stay of Newbould J.’s order pending a motion to set the order aside was dismissed by Spence J.

[5] The motion to set aside Newbould J.’s order was heard by Cumming J. on October 13, 2011 and dismissed on October 18, 2011.

[6] In their notice of motion to set aside Newbould J.’s order, the appellants sought an order staying his order, striking the statement of claim or staying the action. The grounds for the motion are inter alia that the respondents failed to make full disclosure to Newbould J. and that his order was made in the face of rule 63.03, which provides that where an order is stayed pending appeal, no steps may be taken to enforce the order, except by order of a judge of this court.

[7] Cumming J. dismissed the motion. In his reasons he confirmed that the appellants’ principal submission was that the Superior Court lacked jurisdiction to grant the relief sought. That relief was, in effect, seizure of assets, appointment of a receiver and steps intended to ensure that the respondents could recover on the Macdonald J. judgment, the judgment that was then under appeal. After acknowledging that the action was “necessary to be able to ultimately successfully collect upon the judgment in the earlier action” and that “[t]o be able to ultimately collect upon the judgment in the earlier action, it is necessary that the plaintiffs sue upon the cause of action raised in the second proceeding”, Cumming J. went on to dismiss the appellants’ motion on the basis that “the second action ... is not a step taken under [the first] judgment so as to be in contravention of Rule 63.03(1)”.

[8] The appellants appealed Cumming J.’s order to this court. That appeal is still pending. What is before us is the respondents’ motion to quash the appeal on the basis that the order appealed from is interlocutory. The respondents argue that Cumming J. simply dismissed a motion that sought to set aside Newbould J.’s order. Because Newbould J.’s order preserved the status quo until the action could be tried, Cumming J.’s order, therefore, simply allowed the status quo to remain in place pending the trial of the action. It did not finally determine any of the issues in dispute in the action.

[9] The appellants maintain that Cumming J.’s order does in fact finally determine a substantive issue. They point out that Cumming J. dismissed not only their motion to set aside Newbould J.’s order but also their motion to strike the entire action. In so doing, Cumming J. rejected the appellants’ claim that the action, in its entirety, was outside of the jurisdiction of the Superior Court.

[10] As a result of Cumming J.’s decision, the appellants will no longer be able to raise this jurisdictional issue as a defence to the action when the matter ultimately goes to trial. As set out in Ball v. Donais (1993), 1993 8613 (ON CA), 13 O.R. (3d) 322 (C.A.), at para. 3, the effect of Cumming J.’s order is to “finally dispose of the issue raised by that defence, and thereby depriv[e] the defendant of a substantive right which could be determinative of the entire action”.

[11] This court has on prior occasions found that, in cases where an order dismisses a motion that challenged the court’s jurisdiction pursuant to rule 21.01(3)(a), such orders are final provided that the motion judge clearly dealt with the merits of that issue and dismissed the motion: see Abbott et al. v. Collins et al. (2002), 2002 41457 (ON CA), 62 O.R. (3d) 99 (C.A.), at paras. 6-8; and also Manos Foods International Inc. v. Coca Cola Ltd. (1999), 1999 3022 (ON CA), 180 D.L.R. (4th) 309 (Ont. C.A.), at paras. 1-5.

[12] Accordingly, we are of the view that the appellants’ appeal from the order of Cumming J. dismissing their motion to strike the statement of claim is an appeal from a final order and is properly before this court.

[13] We recognize that, as a result of this court having dismissed the appeal from Macdonald J.’s judgment and having confirmed, with adjustments, the award of damages, the stay has been lifted and there is no longer any constraint on the enforcement of that judgment. In light of this change in circumstances, the appellants may or may not wish to proceed with the appeal of Cumming J.’s order. Our decision on this motion should not be taken as having decided whether the issues raised in the appeal are now moot.

[14] In conclusion, the respondents’ motion is dismissed. The parties have agreed that costs are to be awarded to the successful party fixed in the amount of $3,500 inclusive of disbursement and applicable taxes.

“M. Rosenberg J.A.”

“R.G. Juriansz J.A.”

“Paul Rouleau J.A.”