ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 04-CV-269165 CM3
DATE: 20120321
BETWEEN:
BAYERISCHE LANDESBANK GIRONZENTRALE Plaintiff – and – GRANT THORNTON LIMITED, Trustee of the Estate of Helmut Sieber, a bankrupt, HELGA SIEBEER, H.J. SIEBER FARMS LTD., and ROSEN RIDGE FARMS LTD. Defendants
Geoff Moysa , for the Plaintiff
Geoff R. Hall , for the Defendant, Rosen Ridge Farms Ltd.
HEARD: February 17, 2012
B. P. O’marra
reasons for decision
Issue
[ 1 ] Is this claim one of the “clearest of cases” where it is plain and obvious that the case cannot succeed?
Facts
[ 2 ] This action was commenced in May of 2004 to set aside alleged fraudulent conveyances. An Amended Statement of Claim was served in March of 2005 with Rosen Ridge Farms Ltd. (“Rosen”) as a newly added named Defendant. The Trial Record was filed in June of 2008. The trial was scheduled for February 1, 2010. The parties were unable to settle at mediation held in January of 2009.
[ 3 ] A pretrial was held over three days in September of 2009. All parties were represented by counsel at the pretrial except for Rosen whose counsel chose not to attend. On September 29, 2009 Minutes of Settlement were executed on behalf of all parties except Rosen.
[ 4 ] On February 18, 2010 Master Dash granted an order dismissing the claims and counterclaims. Rosen was not party to the settlement and requested that the order expressly preserve Rosen’s right to bring a claim against Bayerische Landesbank Girozentrale (“BLB”) for costs on a substantial indemnity basis.
[ 5 ] The Plaintiff and Rosen have engaged in without prejudice discussions since February of 2010 in an attempt to resolve the remaining issues in the action.
[ 6 ] The Plaintiff intends to pursue this action against Rosen and is prepared to have it re-listed for trial with an estimate of five days.
The Law
[ 7 ] A Defendant may move before a judge to have an order stayed or dismissed on the ground that the action is frivolous or vexatious or is otherwise an abuse of the process of the Court and the judge may make an order or grant judgment accordingly.
Rule 21.01(3)(d)
[ 8 ] Such an application should be made promptly. Failure to do so can, in appropriate circumstances, be the basis for the judge exercising his discretion not to grant the relief sought.
Fleet Street Financial Corp. v. Levinson , (2003) 31 CPC (5th) 145 (Ont. S.C.) at para. 16 .
Nasser v. ABC Group Inc. , 2007 CarswellOnt. 8884 (Ont. S.C.) at para. 27-29 .
[ 9 ] The Rule should be exercised only in the clearest of cases.
Temelini v. Ontario Provincial Police Commissioner , (1990) 1990 7000 (ON CA) , 38 OAC 270 at para. 13 (OCA).
Sussmann v. Ottawa Sun (The) (1997) [1997] O.J. No. 181 at para. 21 (Ont. Gen. Div.) .
[ 10 ] A motion to dismiss for abuse of process is not a substitute for a summary judgment motion. The determination of whether there is a genuine contested issue of material fact is the function of a motion for summary judgment.
Goudie v. Ottawa (City) , 2003 SCC 14 () , [2003] 1 S.C.R. 141 at para. 30 .
[ 11 ] The doctrine of abuse of process engages the inherent power of the Court to prevent a misuse of its procedure that would in some other way bring the administration of justice into disrepute. It is a flexible doctrine, unencumbered by the specific requirements of concepts such as issue estoppel.
Canam Enterprises Inc. v. Coles , 2000 8514 (ON CA) , [2000] O.J. No. 4607 (OCA) at para. 55 dissenting, approved 2002 SCC 63 () , [2002] 3 S.C.R. 307.
Analysis
[ 12 ] The main issue in this claim is whether a transfer of property in September of 2003 was a fraudulent conveyance. The allegations include the following:
that crucial documents were backdated for fraudulent purposes; and
that Rosen did not give valuable consideration for the transfer.
[ 13 ] Rosen brought this motion almost seven years after being added as a Defendant to the action.
[ 14 ] It appears that the Applicant was particularly motivated to bring this motion based on a claim of inaction by the Plaintiff since February of 2010 when the other parties settled. Both remaining parties agree there have been without prejudice settlement discussions since then.
[ 15 ] There remain significant legal and factual disputes between the parties. It cannot be said that there is no merit to the claim or that this is one of those “clearest of cases” where the Court should act to prevent an abuse of process.
[ 16 ] The Applicant has specifically preserved its right to such substantial indemnity costs against BLB. Any further prejudice to the Applicant can be addressed through a costs order.
Result
[ 17 ] Application dismissed. If the parties cannot agree on costs, I will consider brief written submissions to be submitted within 21 days of release of this ruling.
B. P. O’Marra J.
Released: March 21, 2012
COURT FILE NO.: 04-CV-269165 CM3
DATE: 20120321
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
BAYERISCHE LANDESBANK GIRONZENTRALE Plaintiff – and – GRANT THORNTON LIMITED, Trustee of the Estate of Helmut Sieber, a bankrupt, HELGA SIEBEER, H.J. SIEBER FARMS LTD., and ROSEN RIDGE FARMS LTD. Defendants
REASONS FOR DECISION
B. P. O’Marra J.
Released: March 21, 2012