Court of Appeal for Ontario

Date: 2018-01-15 Docket: M48334 (C58536)

Judges: Doherty, Brown and Roberts JJ.A.

Between

Midland Resources Holding Limited, Alex Shnaider and Eduard Shyfrin Plaintiffs (Respondents)

and

Michael Shtaif, The Estate of Anthony Groag, Gregory Roberts, Eugene Bokserman, Ilya Entin, Irwin Boock a.k.a. Irwin Krakowsky and Stanton De Freitas Defendants (Appellants)

And Between

Michael Shtaif, Gregory Roberts, Eugene Bokserman, and Ilya Entin Plaintiffs by counterclaim (Appellant by counterclaim)

and

Midland Resources Holding Limited, Alex Shnaider and Eduard Shyfrin Defendants by counterclaim (Respondents by counterclaim)

Counsel

Michael Shtaif and Eugene Bokserman, in person

Symon Zucker, Kenneth Prehogan, Kim A. Mullin and Scott McGrath, for the respondents Midland Resources Holding Limited, Alex Shnaider and Eduard Shyfrin

Heard: In writing

Reasons for Decision

[1] By reasons released April 20, 2017 this court (i) dismissed the appeal by Eugene Bokserman of the US $1.5 million judgment against him and (ii) allowed, in part, the appeals by Michael Shtaif and Gregory Roberts, reducing the judgments against them to US $8.27 million – representing the damages the trial judge held were suffered by Midland Resources Holding Limited up until June 20, 2006 – together with small amounts for post-June 20, 2006 damages: Midland Resources Holding Limited v. Shtaif, 2017 ONCA 320, 135 O.R. (3d) 481.

[2] Roberts's application for leave to appeal to the Supreme Court of Canada was dismissed on December 21, 2017: Gregory Roberts v. Midland Resources Holding Limited, leave to appeal to SCC refused, 37653 (December 21, 2017).

[3] The appellants, Shtaif and Bokserman, were represented by counsel at the hearing of the appeal. They are now representing themselves.

[4] Shtaif and Bokserman move under rule 59.06(2)(d) of the Rules of Civil Procedure for a "reconsideration" by this court of its decision to maintain awards of damages against them. Rule 59.06(2)(d) states: "A party who seeks to … (d) obtain other relief than that originally awarded, may make a motion in the proceeding for the relief claimed."

[5] The appellants do not seek a reconsideration on the basis of any fresh evidence.

[6] Instead, they contend the trial judge "miscalculated" Midland's "damages as at June 20, 2006 by only considering the accruing loss at that date, without considering the accruing gain which, they contend, flowed from the closing of the Reef Energy transaction after that date. They argue it was not fair or just for this court to rely on the trial judge's miscalculation of damages in affirming the judgment in part.

[7] Midland submits the appellants' motion is not a proper use of r. 59.06(2)(d) and constitutes "nothing more than an attempt to reargue an issue that was decided against the moving parties at trial and on appeal."

[8] We agree the appellants' motion must fail.

[9] First, Shtaif and Bokserman are not simply pointing out a "mathematical oversight" in the trial judge's damage calculation, as they contend; they are advancing a theory of damages not argued on the appeal. In their appeal factum, the appellants identified seven grounds of appeal, none of which involved a claim that the trial judge miscalculated Midland's damages as of June 20, 2006 by failing to take into account any post-June 20, 2006 gain. Nor did their counsel raise the argument at the hearing.

[10] Second, although the appellants did submit the trial judge erred in finding Midland acted reasonably to mitigate its damages contending, in part, that Midland did not act reasonably in its 2010 sale of Reef Energy, this court did not give effect to that ground of appeal.

[11] Consequently, in those circumstances, r. 59.06(2)(d) offers no basis for this court to "reconsider" its decision.

[12] The motion is dismissed. Shtaif and Bokserman shall pay Midland its costs of this motion fixed in the amount of $5,000, inclusive of disbursements and all applicable taxes.

Doherty J.A. David Brown J.A. L.B. Roberts J.A.