SUPERIOR COURT OF JUSTICE - ONTARIO

COMMERCIAL LIST

COURT FILE NO.: CV-12-9628-00CL
DATE: 20120613

RE: PAUL ALEXANDER ROBSON,

Plaintiff

And

WILIAM MEYER, AYLESWORTH LLP, KENNETH TESSIS, SOBERMAN INC., MARVA MILLICENT BROOKS, PATRICIA FERN MARTIN AND CELLEX-C INTERNATIONAL INC.,

Defendants

BEFORE: Justice Newbould

COUNSEL: Sandra E. Dawe and Megan Marrie, for the Applicants
Paul Alexander Robson, self-represented, Respondent

DATE HEARD: June 5, 2012

E N D O R S E M E N T

[ 1 ] This is a motion by the defendants Kenneth Tessis, Soberman Inc. and Marva Millicent Brooks (the “Soberman defendants”) (i) to strike the statement of claim in this action (the 2012 action) as against the applicants without leave to amend, or (ii) in the alternative dismissing or permanently staying the 2012 action as against the applicants and (iii) for costs of the motion, the 2012 action and a prior 2008 action.

[ 2 ] On July 8, 1992, Mr. Robson made a voluntary assignment in bankruptcy. Tessis & Partners (now Soberman Inc.) was appointed as Mr. Robson’s Trustee in Bankruptcy. Mr. Robson was discharged from the bankruptcy by conditional order made in January 1996, effective May 15, 1996.

[ 3 ] Mr. Robson is a lawyer who was called to the Bar in Ontario in 1983. From early 1991 until late 1998, he acted as the general counsel for the Anti-Aging Group of Companies, including Anti-Aging Holdings Limited (“AAH”), its affiliated company Anti-Aging International Inc. (“AAI”) and later Cellex-C International Inc. (“Cellex”). Ms. Megan McLellan is the principal shareholder and directing mind of those companies.

[ 4 ] In 1999, the Trustee received information indicating that Mr. Robson may have acquired shares or the right to own certain shares in the Anti-Aging Group of Companies while he was a bankrupt. The Trustee investigated and concluded that a claim should be commenced. By order of Farley J., dated June 2, 2000, it was directed that there be a trial of the issue whether Mr. Robson owned shares in either AAH or Cellex prior to his discharge from bankruptcy as well as other ancillary issues. The order directed that the Trustee would be the plaintiff, and that Mr. Robson, RX (a company owned by Mr. Robson and his wife), AAH and Cellex would be the defendants in the trial.

[ 5 ] The trial of the action took place before Madam Justice Lax over four days at the end of January 2002. The Trustee was represented by Mr. R. Howell. Mr. Robson represented himself and his company RX. William Meyer represented Cellex.

[ 6 ] The position of the Trustee was that Mr. Robson owned 10 % of the shares of AAI and became entitled to 10% of the shares of Cellex through RX. The Trustee alleged that Mr. Robson and Ms. McLellan collaborated to attempt to conceal this from the Trustee.

[ 7 ] The Trustee’s principal witness was Ms. Patricia Martin, a former law clerk of Mr. Robson’s. She testified that in September 1998, on the instructions of Mr. Robson, she altered the corporate records of AAH which originally showed that Mr. Robson owned 10% of AAH as at June 1993 to show that RX acquired 10% in January of 1996.

[ 8 ] Mr. Robson did not testify. He left the trial at the end of the Trustee’s case after failing on a motion for non-suit.

[ 9 ] The principal witness for the defendants was Ms. McLellan. She testified that Mr. Robson was never a shareholder of AAH or AAI and that while she promised him a ten percent interest in Cellex, that promise was fulfilled after Mr. Robson was discharged from bankruptcy.

[ 10 ] It is not necessary to review the reasons of Lax J. given orally at the end of the trial. She did not accept the evidence of Ms. McLellan. She held that Mr. Robson and Ms. McLellan had collaborated to attempt to conceal assets from the Trustee. She held that Mr. Robson owned 10% of the shares of AAI and therefore became entitled to 9% of the shares of Cellex during the time that he was a bankrupt. Cellex and Mr. Robson were ordered to pay substantial amounts to the Trustee flowing from Mr. Robson’s share ownership. The decision of Lax J. was upheld by the Court of Appeal on October 12, 2004. In its reasons, the Court stated:

[4] The appellants say that the shares at issue were given to Mr. Robson through RX after his bankruptcy and hence could not be subject to any claim by the bankruptcy trustee. To establish a gift of the shares to Mr. Robson during the bankruptcy, the trustee was required to prove, among other elements, that the shares had been delivered in a manner that provided Mr. Robson with a legally enforceable entitlement to the shares. The appellants argued that the trustee failed to establish this essential element of gift.

[5] This was not a case, however, where Mr. Robson had nothing more than a promise to receive the shares at a future date; rather, it was a case where the trial judge found that Mr. Robson had an actual ownership interest from June 21, 1993, from which flowed his interest in the shares in question and the income arising from those shares. In our view, there was more than ample evidence to support these findings.

[6] That evidence included:

i) Mr. Robson’s sworn affidavit in another proceeding that he had been a shareholder during the time of his bankruptcy;

ii) Corporate documentation evidencing his 1993 share ownership;

iii) Mr. Robson’s later directions to his law clerk to alter the corporate records to amend the date of his share ownership; and

iv) Meagan McLellan’s evidence in another proceeding that Mr. Robson was a shareholder in 1993. (Ms. McLellan was the principal witness for Mr. Robson at trial.)

[9] In addition to her findings against Mr. Robson and RX, the trial judge made credibility findings against Ms. McLellan. The trial judge found Ms. McLellan to be the controlling shareholder and directing mind of AAH, its affiliated company Anti-Aging International Inc. (“AII”), Cellex, and its sister company Cellex Cosmaceuticals Inc. (“Cosmaceuticals”) colluded with Mr. Robson to deprive the trustee in bankruptcy of the disputed shares and of monies paid to RX in consequence of its ownership of those shares. There was ample evidence to support a finding that “McLellan and Robson collaborated to attempt to conceal assets from the Trustee”.

[ 11 ] Mr. Robson has since then taken steps in new proceedings to question the essential findings of fact of Lax J. and upheld by the Court of Appeal.

[ 12 ] In 2006, an application was made for a bankruptcy order putting Mr. Robson back into bankruptcy for his failure to make payments required by the judgment of Lax J. The application was successful, and Mr. Robson is still an undischarged bankrupt. In the course of the application, Mr. Robson sought to stay the application, which Cumming J. refused. The allegations made by Mr. Robson before Cumming J. bear resemblance to what Mr. Robson asserts is the subject of his 2012 action. In his reasons, Cumming J. made the following statements:

[18] Mr. Robson now alleges that “Mr. Meyer [as counsel for Cellex in the proceeding before Lax, J.] specifically assured me that if my non-suit motion were unsuccessful, he would call me as a witness for Cellex-C in defence of the claim.” Hence, he argues, when he was not called as a witness and as he had left the trial prior to its conclusion, he was unable to put forward his defence. He claims that Mr. Meyer is a conspirator with Mr. Rosenfeld and Tessis whereby it was orchestrated that he would lose at trial so that Mr. Rosenfeld could buy the shares at a favourable price. On this premise, Mr. Robson asserts an abuse of process. However, Mr. Robson did not raise his accusation against Mr. Meyer at his appeal.

[19] … The accusations against Mr. Tessis and Mr. Meyer are simply bald allegations which, indeed, lack any plausibility on the face of the record. In my view, Mr. Robson is improperly attempting to impeach the judicial findings of Lax, J., upheld on appeal, specifically, that he was the owner, or entitled to be the owner, of shares while an undischarged bankrupt, by the impermissible route of relitigation and a collateral attack in a different forum. See generally Toronto (City ) v. C.U.P.E. Local 79 , 2003 SCC 63 , [2003] 3 S.C.R. 77.

[ 13 ] On August 13, 2008, Mr. Robson and RX commenced an action (the 2008 action) with a statement of claim dated September 11, 2008 against Mr. Tessis, the predecessor firm of Soberman Inc, Marva Brooks, an employee of Soberman Inc, and PriceWaterhouseCooper, his then trustee in bankruptcy. He claimed that Mr. Tessis, Soberman and Ms. Brooks had engaged in fraud, manipulation of the legal system, conspiracy, breach of contract/retainer, breach of duty, interference with economic relations, and improper institution of legal proceedings. The claims all arose out of the role the Trustee in the legal proceedings that led to the judgment of Lax J. He complained of alleged fraudulent evidence put before Macdonald J. that led to an ex parte order prior to the trial that Cellex pay money into court and to alleged fraudulent evidence put before Lax J. that led to her judgment. He pleaded that recent evidence had become available that Ms. Martin, his former law clerk who had testified before Lax J. that she had falsified records at the request of Mr. Robson, had recanted her testimony. He claimed that the decision of Lax J. should be set aside.

[ 14 ] By notice of motion dated November 13, 2008 the Trustee moved to strike the 2008 action. In January 2009, Mr. Robson and RX brought a motion under rule 59.06(2) in the original action tried by Lax J. to set aside her judgment of February 1, 2002 on the grounds of fraud. The motion by the Trustee was stayed for the purpose of allowing Mr. Robson’s rule 59 motion to proceed. Mr. Robson never specified a return date for the motion. In November 2009 the Trustee moved to strike Mr. Robson’s rule 59 motion on the grounds that it was an abuse of process and frivolous and vexatious. In August, 2010 Pattillo J. stuck the rule 59 motion, holding that it was an attempt to relitigate the issues that were finally determined by Lax J. and the Court of Appeal many years ago. His decision was upheld by the Court of Appeal on July 14, 2011.

[ 15 ] Following the decision of the Court of Appeal, the stay of the 2008 action was lifted on October 28, 2011, at which time a timetable was fixed for the Trustee’s motion to strike the 2008 action. Mr. Robson and RX were required to deliver responding material by January 9, 2012. Rather than doing that, however, Mr. Robson issued the 2012 action on January 9, 2012 in the main civil list in Toronto. On January 26, 2012 the 2012 action was transferred to the Commercial List. On February 26, 2012 Mr. Robson served a notice of discontinuance of the 2008 action.

[ 16 ] The 2012 action is contained in an amended amended statement of claim. It is long in general allegations and short in detail. It claims against the Soberman defendants for damages to Mr. Robson’s reputation for fraud, malicious abuse of process, abuse of process, conspiracy and intentional interference with economic relations. It claims against Mr. Meyer, Aylesworth, Mr. Tessis and Ms. Brooks for breach of contract/retainer and breach of duty or alternatively for negligence.

[ 17 ] The 2012 action claims that Mr. Meyer acted as Mr. Robson’s “de facto” legal counsel in the action tried by Lax J. and that unbeknownst to Mr. Robson, Mr. Meyer was acting in conjunction with Mr. Tessis and Aylesworth in a manner designed to ensure that Mr. Robson lost the action. It also claims that Mr. Howell, the lawyer for Mr. Tessis, under the direction of Mr. Tessis falsified evidence before the trial and at trial that misled the court regarding the true character of money received by Mr. Robson from Cellex. There are several allegations that the defendants fabricated evidence to mislead the court (i.e. Lax J.) and that only as a result of the misconduct of the defendants could the judgment have been rendered in favour of Mr. Tessis, the Trustee.

[ 18 ] In his affidavit in opposition to this motion by the Soberman defendants, Mr. Robson states that he made a mistake in the 2008 action in advancing his motion to set aside the judgment of Lax J. He states that the 2012 action is a claim against the defendants for their fraudulent conduct which gave rise to the judgment of Lax J., which he asserts he now does not seek to set aside or to attack the factual underpinnings giving rise to the decision. Regarding Mr. Robson and Ms. Brooks, he asserts that they worked with the other defendants to fabricate evidence on which the court relied and that as a result he suffered significant damage to his reputation. He asserts that only as a result of the unlawful conduct of the defendants could the judgment of Lax J. have been rendered in favour of Mr. Tessis. He asserts that he has only recently become aware of the evidence to support his allegations.

Analysis

[ 19 ] In my view, for a number of reasons, the statement of claim in the 2012 action should be struck without leave to amend.

[ 20 ] Section 215 of the BIA provides no action lies against a trustee without leave of the court. No leave has been sought by Mr. Robson in a motion. While the standard for obtaining leave is not high, if the claim is without legal merit, leave should not be given. As Mr. Robson has not sought leave to bring the action, it should on that ground be stayed. In any event, for reasons which I shall explain, the claim is without legal merit.

[ 21 ] Rue 25.06(8) provides that where fraud in alleged, the pleading shall contain full particulars. It is trite that fraud must be pleaded with particularity. The statement of claim in the 2012 action is woefully short of this requirement. On that ground alone, the statement of claim should be struck.

[ 22 ] The claim as pleaded by Mr. Robson, while not directly seeking to set aside the decision of Lax. J., amounts to a collateral attack on that decision. I disagree with the assertion of Mr. Robson that he does not seek to attack the factual underpinnings giving rise to that decision. The essence of his claim is that but for the fraud of the defendants, the decision of Lax J. would have been different. That is, he seeks to establish that in fact, he did not own the shares that Lax J. found him to have owned during the bankruptcy. That would require him to establish that the factual underpinnings of the decision of Lax J. were wrong.

[ 23 ] In his affidavit evidence considered by Pattillo J., Mr. Robson made essentially the same allegations that he now makes of a conspiracy of the Trustee and the lawyers to provide fraudulent evidence to Lax J. That motion by Mr. Robson was for an order that the judgment of Lax. J. be set aside. The fact that similar allegations are now made in the 2012 action is an indication that although the relief sought does not expressly request an order that the judgment of Lax. J. should be set aside, it is clear that what Mr. Robson seeks is to obtain a judgment on the grounds that the judgment of Lax J. was wrong. Mr. Robson seeks to relitigate the constituent issues or material facts necessarily embraced in that judgment.

[ 24 ] The doctrines of issue estoppel and abuse of process are well settled. See Toronto (City) v. Canadian Union of Public Emloyees , 2003 SCC 63 , [2003] 3 S.C.R. 77 in which Arbour J. stated:

37. In the context that interests us here, the doctrine of abuse of process engages "the inherent power of the court to prevent the misuse of its procedure, in a way that would ... bring the administration of justice into disrepute" ( Canam Enterprises Inc. v. Coles (2000), 2000 8514 (ON CA) , 51 O.R. (3d) 481 (C.A.), at para. 55 , per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63 )). Goudge J.A. expanded on that concept in the following terms at paras. 55-56:

The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or 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. See House of Spring Gardens Ltd. v. Waite, [1990] 3 W.L.R. 347 at p. 358, [1990] 2 All E.R. 990 (C.A.) .

One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined . [Emphasis added.]

As Goudge J.A.'s comments indicate, Canadian courts have applied the doctrine of abuse of process to preclude relitigation in circumstances where the strict requirements of issue estoppel (typically the privity/mutuality requirements) are not met, but where allowing the litigation to proceed would nonetheless violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice.

[ 25 ] In Danyluk v. Ainsworth Technologies Inc ,. 2001 SCC 44 , [2001] 2 S.C.R. 460. Binnie J. made the following statement that is apt:

20 The law has developed a number of techniques to prevent abuse of the decision-making process. One of the oldest is the doctrine estoppel per rem judicatem with its roots in Roman law, the idea that a dispute once judged with finality is not subject to relitigation: Farwell v. The Queen (1894), 1894 72 (SCC) , 22 S.C.R. 553, at p. 558; Angle v. Minister of National Revenue , 1974 168 (SCC) , [1975] 2 S.C.R. 248, at pp. 267-68. The bar extends both to the cause of action thus adjudicated (variously referred to as claim or cause of action or action estoppel), as well as precluding relitigation of the constituent issues or material facts necessarily embraced therein (usually called issue estoppel) : G. S. Holmested and G. D. Watson, Ontario Civil Procedure (loose-leaf), vol. 3 Supp., at 21 s. 17 et seq. Another aspect of the judicial policy favouring finality is the rule against collateral attack, i.e., that a judicial order pronounced by a court of competent jurisdiction should not be brought into question in subsequent proceedings except those provided by law for the express purpose of attacking it: Wilson v. The Queen, 1983 35 (SCC) , [1983] 2 S.C.R. 594; R. v. Litchfield , 1993 44 (SCC) , [1993] 4 S.C.R. 333; R. v. Sarson , 1996 200 (SCC) , [1996] 2 S.C.R. 223. (underlining added)

[ 26 ] In so far as Soberman is concerned, issue estoppel is applicable as it was a party to the action decided by Lax J., as was Mr. Robson. Mr. Tessis and Ms. Brooks were not parties to that action, although this is somewhat of a technicality as they are employees of Soberman and could be considered to be privies to Soberman. In any event, the doctrine of abuse of process is applicable, which imports the principles of issue estoppel without the necessity of mutuality or privity.

[ 27 ] The fact that Mr. Robson says he does not seek to set aside the judgment of Lax J. does not prevent what he seeks in the 2012 action to be an abuse of process. The same argument that he makes was made by CUPE in Toronto, supra . Arbour J. dealt with it as follows:

34. Each of these cases concerns the appropriate forum for collateral attacks upon the judgment itself. However, in the case at bar, the union does not seek to overturn the sexual abuse conviction itself, but simply contest, for the purposes of a different claim with different legal consequences, whether the conviction was correct. It is an implicit attack on the correctness of the factual basis of the decision, not a contest about whether that decision has legal force , as clearly it does. Prohibited "collateral attacks" are abuses of the court's process. However, in light of the focus of the collateral attack rule on attacking the order itself and its legal effect, I believe that the better approach here is to go directly to the doctrine of abuse of process. (underlining added)

[ 28 ] On this ground, the 2012 action both contravenes the principles of issue estoppel and abuse of process as it is an “attack on the factual basis of the decision” of Lax J. (as per Arbour J. in Toronto ) or amounts to “relitigation of the constituent issues or material facts necessarily embraced” in the decision of Lax J. (as per Binnie J. in Danyluk ) and must be struck. It is an abuse of process.

[ 29 ] Abuse of process principles do recognize that there may be circumstances in which relitigation is preferable. In Toronto, supra , Arbour J. stated:

52….There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. This was stated unequivocally by this Court in Danyluk , supra , at para. 80 .

[ 30 ] In his statement of claim in the 2012 action, Mr. Robson pleads that he only recently became aware of the extent of the misconduct perpetrated on him by the defendants. Ms. Dawe served a demand for particulars of this allegation on January 16, 2012. To date, Mr. Robson has not delivered any response.

[ 31 ] The contention of Mr. Robson that he has new evidence that was not available at the time of the trial before Lax J. that establishes fraud on the part of the Soberman defendants was made to Pattillo J. who did not accept the contention and struck Mr. Robson’s rule 59 motion in the 2008 action. Pattillo J. dealt thoroughly with the evidence of Mr. Robson and rejected it, concluding as follows:

[66] In summary, it is my view that Robson and RX’s allegations of conspiracy in so far as they relate to supposed fraud on the court in respect of the Judgment and the Order have no merit whatsoever. The fundamental allegation arising out of the alleged conspiracy is that wrong and misleading evidence was placed before Lax J. during the trial of the Action and resulted in incorrect findings by her. As noted, however, Robson and RX have produced no evidence that there was any wrong or misleading evidence before Lax J. at trial. What Robson submits was wrong and misleading was the evidence that he owned the shares while bankrupt and received money on account of them. However, as the Court of Appeal confirmed, there was ample evidence to support the learned trial judge’s findings.

[67] Similarly, for the reasons stated, I do not consider the allegations of wrongdoing on the part of the Trustee and/or its counsel and the allegation that Martin recanted her evidence and was paid to be a witness to have any merit either. The specific allegations are either not wrongdoing as alleged or are not supported by any evidence. Either way, they do not provide any support whatsoever for the Motion.

[ 32 ] Thus what Mr. Robson seeks to do in the 2012 action is also an impermissible attack on the decision of Pattillo J., which was upheld in the Court of Appeal.

[ 33 ] Mr. Robson now contends that he has further new evidence that supports his 2012 action. However, the affidavit of Mr. Robson filed on this motion dated May 14, 2012 is full of generalities, hearsay evidence and unsubstantiated accusations of fraud. It is no cogent evidence of anything new. His allegations of a conspiracy involving Mr. Tessis, Ms. Brooks, and others was put in his affidavits dealt with by Pattillo J. and rejected. As an example of what Mr. Robson testified to, Pattillo J. stated in his reasons:

[32] Robson’s initial affidavit in support of the Motion alleges an all-encompassing "conspiracy" beginning in late 1998 and involving many people including Simon Rosenfeld (former general counsel to Cellex), Cellex’s counsel at the trial, Martin, Dr. Lorraine Meisner (the inventor of Cellex's technology), Tessis, Marva Brooks, a former employee of the Trustee who had carriage of the Robson bankruptcy and the Trustee’s counsel at trial.

[33] Robson’s subsequent affidavits expand the conspiracy and allege various acts of improper conduct in relation to the Action including that the Trustee deliberately withheld information and/or misinformed the court; that Martin subsequently recanted her trial testimony; that Martin was paid to give her evidence at trial; that the Trustee’s counsel wrongfully provided a factum to Lax J. at the trial without Robson’s knowledge, unfairly blindsiding him; and that Cellex’s counsel breached an agreement with Robson to call his evidence at trial.

[ 34 ] Mr. Robson alleges in his affidavit that fraudulent evidence was used by the Trustee to obtain an ex parte order from Macdonald J. in 2000 prior to the trial before Lax J. in which Cellex was required to pay money into court. This is not a new complaint. It was made by Mr. Robson in an affidavit sworn August 31, 2005 and again before Pattillo J. who dealt with it in his reasons at para. 51, with which I agree. In argument, Mr. Robson said that he relied on a letter of a Mr. Watson to Mr. Tessis dated September 24, 1999. This letter was an exhibit at the trial before Lax J. He also said he relied on statements of Ms. McLellan, which I will deal with when discussing her affidavits. There is no cogent evidence of anything newly learned or of any evidence before Macdonald J. that was false. In any event, it could not be evidence of a fraud on the court in the trial before Lax. J.

[ 35 ] Mr. Robson relies on further affidavits of Ms. McLellan sworn May 9, 2012 and May 30, 2012. These affidavits arose in a curious way. This motion was originally scheduled to be heard on February 22, 2012 along with a motion to strike the 2008 action. Mr. Robson was required to file responding material by January 9, 2012. He did not do so. On February 22, 2012, Mr. Robson told Wilton-Siegel J. that he did not understand the previous order of Brown J. regarding his deadline for filing materials. An order was made that day giving Mr. Robson until March 14 to file responding materials limited to an affidavit of Mr. Robson. A new hearing date was set for April 5, 2012 peremptory to the parties. Cellex was also a defendant and its intended motion to dismiss was scheduled to be heard at the same time.

[ 36 ] On April 5, 2012, Mr. Robson requested an adjournment on the grounds that he and Cellex had settled the claim against Cellex, controlled by Ms. McLellan, on the basis that Cellex would produce certain documents relating to the allegation of “collusion”. McEwan J. agreed to one last adjournment to May 18, 2012 peremptory to Mr. Robson, subject to Cellex producing the documents by April 20, 2012 and Mr. Robson producing the documents accompanied by a proper affidavit (presumably an affidavit of Mr. Robson attaching the documents).

[ 37 ] On May 3, 2012 Mr. Robson and Ms. Dawe had a conference with Campbell J. Mr. Robson said Celelx was late in producing documents and he said he wanted documents produced by Ms. Brooks and to cross-examination her. Campbell J. ordered that the hearing would proceed on May 18, 2012 and he left to the hearing judge the issue of what if anything had to be produced to Mr. Robson.

[ 38 ] What followed was that Mr. Robson produced an affidavit of Ms. McLellan of May 9, 2012 attaching a number of documents and an affidavit of Richard Watson sworn May 14, 2012 attaching one document. No leave had been provided to file these affidavits. On May 18, 2012 Pattillo J. was scheduled to hear the motion. Mr. Robson took the position that Pattillo J. should not hear the motion and it was adjourned to June, 5, 2012.

[ 39 ] Mr. Robson then filed a further affidavit of Ms. McLellan sworn May 30, 2012. It contained no new documents but attached pages from a transcript of Mr. Tessis on his cross-examination taken on January 6, 2006. No leave to file that affidavit had been given.

[ 40 ] The first thing that must be said about these affidavits, apart from no leave being given to file them as required by the order of Wilton-Siegel J. of February 22, 2012, is that a party cannot lose a matter and then later provide further evidence to buttress the case in an attempt to re-open it. All evidence must be given and all points raised. The only exception is if the evidence was not reasonably available at the time of the earlier proceeding, and, for our purposes as stated by Arbour J. in Toronto , the new evidence conclusively impeaches the original results. Ms. McLellan was the prime witness for Mr. Robson before Lax J. and she also provided affidavit evidence in support of Mr. Robson before Pattillo J. There has been no explanation proffered, let alone evidence to substantiate it, that this “evidence” from Ms. McLellan was not available to Mr. Robson long before now at the time of the trial before Lax. J. or the hearing before her in 2004 to confirm a Master’s report, or at the time of the hearing before Pattillo J.

[ 41 ] The affidavit of Ms. McLellan sworn May 30, 2012 contains for the most part hearsay statements and argument designed to assist Mr. Robson. She states that “In a nutshell, both CCI and Robson were robbed of over two million dollars by a calculated “theft by deception” of the Court”. There is no cogent evidence of any new information supporting any of the allegations against the Soberman defendants in the 2012 action.

[ 42 ] The affidavit of Mr. Watson deals with a letter from him to Mr. Tessis dated September 24, 1999 in which he provided share registers of Cellex and the Anti-Aging companies. Mr. Robson relies on this as new information. However, the letter was an exhibit at the trial before Lax. J.

[ 43 ] The affidavit of Ms. McLellan sworn May 9, 2012 attaches 17 documents. Ms. McLellan states in her affidavit:

1. In order to understand what is expected of CCI more clearly, I have read Justice Pattillo’s decision on Motion to Strike. Upon reading Justice Pattillo’s reasons it would seem that had he been aware of the content of the attached exhibits he would have reached a different conclusion particularly on points 9, 12, 13, 14, 16, 18, 23, 32, 33, 34, 35, 36, 37, 40, 47, 48, 50, 52, 55, 57, 58, 66 and 67 of his reasons.

2. He would have seen the collusion between shareholders, directors officers and legal counsel of Cellex-C and Tessis and not between Cellex-C and Robson as Cellex-C desperately wanted Robson out of the Company.

3. I assembling the exhibits required, it became clear to me that they would not make sense in an isolated state. They required background information and occasionally, additional exhibits for clarity.

[ 44 ] This is a remarkable affidavit. As Ms. McLellan had settled the claim of Mr. Robson against Cellex in the 2012 action by agreeing to provide documents, there was no need at all for her to be filing affidavits or care if the documents produced did not make sense in an isolated state.

[ 45 ] This affidavit, like the one of May 30, 2012, is full of argument and hearsay. There is no cogent evidence of anything new. As an example, she complains in paragraphs 10-12 of alleged collusion leading to Cellex being added as a defendant in the action tried by Lax. J. However, the same allegation was made in her affidavit of April 10, 2010 that was before Pattillo J, and Pattillo J. concluded that even if the allegation were true, it could not be considered fraud on the court and that however the decision was made to proceed against Cellex, it was justified and any complaint was not the business of Mr. Robson. I agree with that conclusion.

[ 46 ] Ms. McLellan refers to a portion of a transcript of a section 163 examination of Patricia Martin under the BIA said to have been conducted in February 2000. Ms. Martin was the former law clerk of Mr. Robson whose evidence accepted by Lax J. was that she had altered the corporate records at the request of Mr. Robson. Mr. Robson said in argument that he could not recall when he got a copy of the transcript. There is certainly no evidence that the transcript just recently came to the attention of either Ms. McLellan or Mr. Robson, and it is difficult to think that they were not aware of it at the time of the trial before Lax. J. In any event, there is no basis to think that it would have altered the views of Pattillo J. as Ms. McLellan asserts in her affidavit. If anything, it corroborates what Ms. Martin said at the trial.

[ 47 ] Ms. McLellan refers to a memo of February 14, 2000 sent by Ms. Martin to Ms. Brooks the day before Ms. Martin’s section 163 examination. Ms. McLellan does not testify as to when she learned of this document, nor did Mr. Robson. The document contains, however, a fax note at the bottom that indicates it was sent by Mr. Robson to someone on August 10, 2000, and so he had it by at least that date. It again is a document does not indicate any fraud on the court.

[ 48 ] This affidavit of Ms. McLellan does not provide any cogent evidence of improper activity on the part of Mr. Tessis or Ms. Brooks or evidence that any fraud was perpetrated on the court.

[ 49 ] In all of the circumstances, the statement of claim in the 2012 action must be struck without leave to amend. The moving parties are entitled to their costs of the motion, the 2012 action and of the 2008 action. They may make written submissions within 10 days regarding their costs, not exceeding 5 pages, along with a proper cost outline, and Mr. Robson shall have 10 days to reply with his cost submissions, not exceeding 5 pages.

Newbould J.

DATE: June 13, 2012