Court of Appeal for Ontario

Citation: 2027707 Ontario Ltd. v. Richard Burnside & Associates Ltd., 2016 ONCA 819

Date: 2016-11-03

Docket: C61772

Before: Rouleau, van Rensburg and Miller JJ.A.

Between:

2027707 Ontario Ltd. (Plaintiff/Appellant)

and

Richard Burnside & Associates Ltd. and John Schnurr (Defendants/Respondent)

Harrison Pensa LLP and Harry Van Bavel (Third Parties/Respondents)

Counsel: Peter B. Cozzi, for the appellant Matthew Urback, for the respondent Richard Burnside & Associates Ltd. Sean Dewart, for the third parties/respondents Harrison Pensa LLP and Harry Van Bavel

Heard and released orally: October 28, 2016

On appeal from the order of Justice Andra Pollak of the Superior Court of Justice, dated January 25, 2016.

Endorsement

[1] The appellant appeals from an order staying an action as against a court appointed receiver and refusing leave to sue the receiver.

[2] The appellant puts forward two bases for the appeal. First, it argues that the motion judge erred in failing to find that the receiver had already consented to the action being commenced against it. Second, it argues that the motion judge erred in finding that the appellant did not meet the test for granting leave in such matters.

[3] We reject both these submissions. The receiver’s consent on which the appellant seeks to rely was given before the appellant was even aware of the claim being made in the stayed action. We do not agree with the appellant’s submission that this consent is broad enough to encompass the claim for damages resulting from the alleged wrongdoing that the appellant now wishes to pursue. The consent related only to a list of claims asserted against the receiver in matrimonial proceedings (where the receiver also asserted counterclaims). Even if read liberally, the consent could not include the proposed claim as it is one for conversion arising from an agreement of purchase and sale that was entered into after the execution of the consent.

[4] We also see no basis to interfere with the motion judge’s refusal to grant leave to sue the receiver. This was a discretionary decision. The motion judge found that there was no evidence tendered that the appellant suffered damages and, having assessed the record before her, she declined to draw such an inference.

[5] We see no error in her conclusion. It was reasonably based on the evidence or lack of evidence placed before her on the motion.

[6] For these reasons, the appeal is dismissed.

[7] Costs to the third parties/respondents fixed at $8,000 and to the respondent Richard Burnside & Associates fixed at $4,000, both inclusive of disbursements and applicable taxes.

“Paul Rouleau J.A.” “K. van Rensburg J.A.” “B.W. Miller J.A.”