COURT FILE NO.: 358/04
DATE: 20040930
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
SUSANNA SANG CHIU and CHIU LIANG & COMPANY
Applicants
(Respondent in Appeal)
- and -
UNIVERSAL WATER TECHNOLOGY INC., UTC UNIVERSAL ENVIRONMENTAL CORPORATION c.o.b. ENVIRO-TECH CLEAR AIR &WATER, CXL UNIVERSAL HOLDINGS INC., CHUNG SEN LEUNG and RAYMOND TAK CHEUNG LI
Respondents
(Appellants in Appeal)
Chi-Kun Shi, for the Applicants (Respondents in Appeal)
George Vlahakis, for the Respondents (Appellants in Appeal)
HEARD: September 30, 2004
BENOTTO S. J.: (Orally)
[1] The appellant moves to set aside the Registrar’s order dismissing this appeal for delay.
[2] The appellant must meet the three-fold test:
(i) showing a bona fide intention to appeal within the time limit;
(ii) reasonable explanation for delay; and
(iii) that the justice of the case requires the extension.
INTENTION TO APPEAL
[3] The time limit here expired on July 23, 2004. Within that time the appellant did nothing to demonstrate an intention to appeal. I note parenthetically that the motion before me only asks for an order setting aside the Registrar’s order, not an extension. The appellant says that he could not perfect the appeal within the time period because the terms of the judgment had not been settled. However, during the time period leading up to July 23, the appellant did nothing to settle the terms of the judgment even though a draft had been sent to him for approval.
EXPLANATION FOR DELAY
[4] The appellant offers the explanation that his counsel was busy on other matters and that his secretary in counsel’s office had had a death in the family.
[5] Were the threshold so low as to be met by these facts, I dare say the time limit would be meaningless. In any event, in the context that I am about to describe, this is but one additional factor.
JUSTICE OF THE CASE
[6] An examination of the justice of the case involves the consideration of the merits of the appeal. The action here involved the appellant’s claim for relief, pursuant to the oppression remedies under the Ontario Business Corporations Act.
[7] Counsel took me through the notice of appeal. Grounds 1 and 2 of the notice of appeal say that the learned application judge erred in awarding damages for wrongful dismissal. I have read Spence J.’s reasons. Spence J. specifically found that it was not necessary to deal with the issue as to whether the appellant was an employer or not because the matter before him related to the oppressive conduct and the appropriate remedy therefore.
[8] Ground #3 alleges that the learned application court judge erred in finding that the respondent’s conduct was oppressive in light of the conflicting evidence. I was referred by counsel to extensive evidence to support the judge’s findings in this regard. I emphasize that they were factual findings.
[9] Grounds #4, #5 and #6: These relate to the claim for general damages. Again, I was referred to extensive evidence and I refer to paragraph 13 of the respondent’s factum to support the judge’s findings.
[10] Ground #7 deals with the judge’s award for punitive damages. Spence J. specifically found that “the course of conduct pursued by the respondents was blatant, deliberate, malicious and calculated to benefit the respondent at the expense of the applicants.” There was evidence detailed in paragraphs 77 and 78 of the respondent’s factum to support this finding.
[11] Ground #8 alleges that the learned application court judge erred in finding any conduct engaged in by Messrs. Leung and Li would justify an award that they be jointly and severally liable for the amounts ordered to be paid. Spence J. found that it was the individuals that had taken action upon which he was basing his damage. Indeed, he referred to their conduct in paragraph 84 as in the metaphor as follows:
“It is no defence to say, after you have let the building burn down, that is has no residual value.”
Again, the evidence supporting these findings as contained in paragraphs 41 to 51 of the respondent’s factum. When I refer to the respondents in this decision, I am referring of course to the respondent in the appeal, not the respondent in the action.
[12] In the face of the overwhelming evidentiary base, the moving party chose not to respond to the issue of the merits of this appeal. It is clear to me that there is no reasonable chance of success of the appeal.
[13] In addition to all of this, the appellants, within one week of the expiration of the time line were attempting to dissolve the corporation retroactively, close the bank account and were representing to the registrar that there were no proceedings pending in relation to the corporation.
[14] The appellants have shown a lack of respect for the Court process; no intention to appeal and no reasonable explanation for delay. In the face of this, the merits of the appeal are dubious. The motion before me is therefore dismissed.
[15] In assessing costs, I have taken into account in addition to the factors set out in my reasons, the fact that virtually all of the effort in bringing this matter to a conclusion and bringing this appeal forward were taken by the respondents in the appeal. For these reasons and for the reasons given in my reasons for decision, I award costs to the respondents in the appeal fixed at $6,000.00, plus GST, payable forthwith.
BENOTTO S.J.
Date of Reasons for Judgment: September 30, 2004
Date of Release: October 5, 2004
COURT FILE NO.: 358/04
DATE: 20040930
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
SUSANNA SANG CHIU and CHIU LIANG & COMPANY
Applicants
(Respondent in Appeal)
- and -
UNIVERSAL WATER TECHNOLOGY INC., UTC UNIVERSAL ENVIRONMENTAL CORPORATION c.o.b. ENVIRO-TECH CLEAR AIR &WATER, CXL UNIVERSAL HOLDINGS INC., CHUNG SEN LEUNG and RAYMOND TAK CHEUNG LI
Respondents
(Appellants in Appeal)
ORAL REASONS FOR JUDGMENT
BENOTTO S. J.
Date of Reasons for Judgment: September 30, 2004
Date of Release: October 5, 2004