COURT OF APPEAL FOR ONTARIO

CITATION: Alfano Estate v. Piersanti, 2012 ONCA 749

DATE: 20121105

DOCKET: M41757 C52738

Sharpe, Rouleau and Hoy 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

Respondents (Moving Parties)

and

Christian Piersanti, Piersanti and Co. Barristers and Solicitors, Gold Financial Corp., Osler Paving Ltd., 758626 Ontario Limited now known as Diligent Financial Corporation, 1281111 Ontario Limited, 1269906 Ontario Limited and 1281632 Ontario Limited, 1212700 Ontario Limited, Terry Piersanti, also known as Terry Scatcherd, 1281038 Ontario Limited and 3964400 Canada Inc.

Appellants (Responding Parties)

AND BETWEEN

Christian Piersanti, Diligent Financial Corporation and 1212700 Ontario Limited

Appellant

and

Bertina Alfano, Italo Alfano, Ultimino Alfano, Joe Alfano, 815748 Ontario Limited, Ontario Power Contracting Limited, Puslinch Investments Inc., 1026864 Ontario Limited

Respondents

AND BETWEEN

Gold Financial Corp.

Appellant

and

Puslinch Inv. Inc., Invar Building Corporation, Invar Aggregates Limited, 1212700 Ontario Limited, 1026864 Ontario Limited, Peter Lamanna, 2016411 Ontario Limited, Steven Bellissimo Barrister and Solicitor, Ontario Power Contracting Limited, 2012746 Ontario Limited, 2026474 Ontario Limited, 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

Respondents

James F. Diamond, for the moving parties (respondents)

V.R. Morrison and R.S. Chapman, for the responding parties (appellants)

Heard: October 29, 2012

Motion to review and set aside the order of Justice David Watt of the Court of Appeal, dated August 27, 2012.

ENDORSEMENT

[1] The respondents move to review and set aside the order of Watt J.A., dated August 27, 2012, refusing to grant a stay of proceedings of the judgment of this court dated May 9, 2012 (2012 ONCA 297). The stay is sought pursuant to the Supreme Court Act, R.S.C. 1985 c. S-26, s. 65.1(1), pending the determination of the respondents’ application for leave to appeal to the Supreme Court of Canada.

[2] We conclude that no stay should be granted, although for different reasons than those given by Watt J.A.

[3] The May 9, 2012 judgment of this court set aside the trial judgment against the appellant Terry Piersanti and reduced the damages awarded by the trial judge from $20 million to approximately $14 million.

[4] In a separate Superior Court proceeding, after the trial judgment but during the period when the trial judgment was stayed pending the appeal to this court, the appellants obtained a Mareva injunction and the appointment of a receiver against the respondents (the “receivership order”).

[5] The appellants appealed from an order continuing the receivership order, arguing that the Superior Court had no jurisdiction to make the receivership order pending the appeal to this court and that any such order fell within the jurisdiction of this court. This court dismissed that appeal and held that the receivership order was made in a separate proceeding alleging a separate cause of action and did not constitute a step taken under the trial judgment that was the subject of the appeal decided by this court on May 9, 2012: 2012 ONCA 612.

[6] It is common ground that the receivership order remains in effect and that if not altered or discharged by the Superior Court, it will afford the respondents the protection they seek pending the determination of their leave to appeal application to the Supreme Court of Canada.

[7] In response to questions from the bench, counsel for the respondents confirmed that the respondents seek a stay of this court’s May 9, 2012 judgment in order to preclude the appellants from moving to alter or discharge the receivership order on the basis of what this court decided in the May 9, 2012 judgment. Counsel for the appellants indicated that his clients may seek to vary the receivership order or discharge it by paying into court the amount of the damages as reduced by this court before the determination of the application for leave to appeal to the Supreme Court of Canada.

[8] It is our view that the relief sought by the respondents is not a request “that proceedings be stayed with respect to the judgment from which leave to appeal is being sought” within the meaning of s. 65.1(1). Simply put, there is no proceeding with respect to this court’s judgment of May 9, 2012 that the respondents ask be stayed. Their request relates to the receivership order and, as this court has already held, the receivership order was properly made in a distinct proceeding and did not constitute a step under the trial judgment. There is no appeal now pending before us in relation to that proceeding, and any variation or discharge of that order falls within the jurisdiction of the Superior Court. For that reason, we refuse to interfere with the order of Watt J.A. dismissing the request for a stay.

[9] We hasten to add, however, that should the appellants seek to vary or discharge the receivership order in the Superior Court, neither this court’s judgment of May 9, 2012 nor our refusal to grant a stay would prevent the Superior Court from fully and fairly considering whether it would be in the interests of justice to continue the receivership order pending the Supreme Court of Canada’s decision on the respondents’ leave to appeal application.

[10] Accordingly the motion to set aside the order of August 27, 2012 refusing the stay is dismissed. The appellants as responding parties to this motion are entitled to their costs which we fix at $5,000 inclusive of disbursements and taxes.

“Robert J. Sharpe J.A.”

“Paul Rouleau J.A.”

“Alexandra Hoy J.A.”