COURT FILE NO.: 222459CM2

DIVISIONAL COURT FILE No.: 590/03

DATE: 20031007

SUPERIOR COURT OF JUSTICE – ONTARIO

(Divisional Court)

RE: ELEANOR McGRATH

Plaintiff

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COUGS INVESTMENTS LIMITED,

GERRY COUGHLAN, DAVID QUIBEL,

QUEST COURIER SERVICES (1996) LTD.

AND THE ROYAL BANK OF CANADA

Defendants

BEFORE: Mr. Justice Gravely

COUNSEL: M.R. Kestenberg, for the plaintiff

C. Francis & A. Heal, for the defendants

HEARD: September 29, 2003

E N D O R S E M E N T

Leave to appeal is denied.

There is no conflict in the principles applied by Pitt J. and those of other cases and in particular there is no conflict in my opinion with the Meditrust case or the Mancini case.

I have no reason to doubt the correctness of the conclusion reached by Pitt J.

On its face, the Statement of Claim is confusing as to the nature of the cause of action and many of the allegations are redundant. At this point in the litigation however there is no doubt that the claim is solely one of conspiracy. Nor for leave purposes is the condition of this pleading of importance to anyone other than the parties. As to the status of the plaintiff, as the action now stands there is no derivative claim for wrongs done to a corporation as in Foss v. Harbottle. No claim is made in relation to assets or as a creditor or for the benefit of a bankrupt estate or for breach of fiduciary duty or for relief under the Fraudulent Conveyances Act. Nor is a claim made against the plaintiff’s husband, Ed McGrath.

The claim in essence has nothing to do with bankruptcy. Under the alleged scheme the creation of a bankruptcy was only one of the elements of the plan to harm the plaintiff. As a result of the implementation of the plan, the plaintiff suffered damages. I agree with Pitt J. that the plaintiff should be allowed to proceed in her tort claim to recover those damages.

Costs are fixed at $5,000 to be payable one-half by the Royal Bank of Canada and one-half by the other group of defendants.

GRAVELY J.

DATE: 20031007