Court File and Parties

COURT OF APPEAL FOR ONTARIO

CITATION: Inxsys Corporation v. Global Conduit Inc., 2016 ONCA 127

DATE: 20160211

DOCKET: C60702

Doherty, Epstein and Miller JJ.A.

BETWEEN

Inxsys Corporation

Plaintiff (Respondent)

and

Global Conduit Inc. and Nabil Saikaly and Roudaina Saikaly

Defendants (Appellants)

R.P. Zigler, for the defendants (appellants)

Amandeep S. Dhillon, for the plaintiff (respondent)

Heard: February 5, 2016

On appeal from the order of Justice K. Barnes, of the Superior Court of Justice, dated June 2, 2015.

Appeal Book Endorsement

[1] We would admit the fresh evidence tendered by the appellants, allow the appeal and set aside the default judgment.

[2] We accept that the appellants did not exercise due diligence and should have moved before the motion judge at least for an adjournment to explore the possibility of producing the expert evidence eventually produced on appeal. A failure of due diligence is not, however, determinative. The interests of justice engage broader concerns.

[3] The fresh evidence (expert reports) suggests the strong possibility that a key document in the litigation is forged. The circumstantial evidence suggests the respondent must have authored the forgery. None of this is proved at this point, but the appellants’ fresh evidence is certainly capable of belief. The respondent has not challenged the substance of the experts’ opinion on appeal.

[4] In our view, the evidence adduced on appeal raises real concerns about the bona fides of the respondent’s claim and their evidence relating to the service of the Statement of Claim. A trial is required to resolve these concerns.

[5] The appeal will be allowed and the default judgment set aside.

[6] We are satisfied that the funds currently held in trust should remain where they are pending further order of the Superior Court or this court.

[7] In our view, this matter could and should have been raised by the appellants at the motion. The costs order of Barnes J. stands. Those costs are to be payable within 60 days. The Statement of Defence must be filed within 30 days. Costs of the appeal are fixed at $7,500 in the cause.