Court of Appeal for Ontario

Citation: Kaptor Financial Inc. v. SF Partnership, LLP, 2016 ONCA 671

Date: 2016-09-09

Docket: C61642

Before: Feldman, Simmons and Lauwers JJ.A.

Between:

Kaptor Financial Inc., 2025610 Ontario Limited and Insignia Trading Inc.

Plaintiffs

and

SF Partnership, LLP, Shore Newman & Rose LLP, Eric Inspektor, Lynette Inspektor, Rick Arnone, Jack Barkin, Alan Birnbaum, Momir Dejanovic, Harvey Goldberg, Klara Romm, Barbara Shuster, Darren Inspektor and Russel Inspektor

Defendants (Appellant)

and

Eric Grossman, Steven Uster and the Section 38 Litigation Committee

Respondents

Counsel:

Eric Inspektor, appellant acting in person

Jeffrey Larry, for the respondents Eric Grossman, Steven Uster and the Section 38 Litigation Committee

Heard and released orally: August 25, 2016

On appeal from the judgment of Justice Michael A. Penny of the Superior Court of Justice, dated December 3, 2015.

Endorsement

[1] The appellant sought leave under s. 215 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, to sue the litigation committee for defamation in respect of a report it sent out to the s. 38 litigation participants.

[2] Penny J. dismissed the motion for leave on two bases: (1) the words used do not have a defamatory meaning, and (2) qualified privilege.

[3] The appellant seeks to introduce fresh evidence on the appeal that the report was sent to three people who were not s. 38 participants and to that extent, not covered by qualified privilege.

[4] In our view, the fresh evidence application and the appeal must be dismissed. The motion judge made no error in his determination that the words complained of are not defamatory in the context of the report. Furthermore, the appellant had no reputation to protect in the eyes of the recipients of the report.

[5] We need not address whether the defence of qualified privilege was undermined by sending the report to three investors who opted out of the litigation under s. 38. However, we note that there was an evidentiary onus on the leave applicant to show that there are facts to support his claim. See GMAC Commercial Credit Corporation – Canada v. T.C.T. Logistics Inc., [2006] 2 S.C.R. 123, 2006 SCC 35, at para. 57.

[6] The appeal is dismissed with costs in the agreed amount of $11,000 inclusive of disbursements and applicable taxes.

"K. Feldman J.A."

"Janet Simmons J.A."

"P. Lauwers J.A."