Citation and Court Information
CITATION: KAYCAN v. TERSIGNI, 2013 ONSC 3093
COURT FILE NO.: CV-11-9485-00CL
DATE: 20130528
SUPERIOR COURT OF JUSTICE – ONTARIO (COMMERCIAL LIST)
IN THE MATER OF THE COMPANIES CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, AS AMENDED
BETWEEN:
KAYCAN LTEE/LTD., Plaintiff
- AND -
2151382 ONTARIO INC., MARIO TERSIGNI, ANTHONY GABRIEL TERSIGNI, TIZIANO JAMES TERSIGNI, R.P.M. ROLLFORMING LIMITED, RPM ROLLFORMED METAL PRODUCTS LIMITED and ARTHUR S. POLLACK, Defendants
BEFORE: C.L. CAMPBELL J.
COUNSEL: A. O’Brien, for the Plaintiff H. Sutherland, for the Defendants
HEARD: May 17, 2013
ENDORSEMENT
[1] The defendants’ motions for a) adjournment of the motion to remove plaintiff’s counsel, b) hearing the removal motion itself and c) a motion to amend the Statement of Defence and to permit a Counterclaim were all dismissed after hearing with Reasons to follow. These are the reasons.
[2] In the action the plaintiff, Kaycan, seeks to recover as against the defendants as guarantors of 2151382 Ontario Inc. (215) and for damages alleging a fraudulent transfer by certain of the defendants of the corporate assets to render the judgment obtained by the plaintiff against 215 unrecoverable.
[3] The motion to remove Marco Drudi and his firm as counsel for the plaintiff is based on what is said to be Mr. Drudi’s close relationship with Bianchi and his firm.
[4] Bianchi is and was a shareholder of 215 and is not sued in this action. The Bianchi law firm acted for the defendants at one time and as well at one time for the plaintiff.
[5] The essence of the removal motion is the allegation that representation of Kaycan as against the defendants in this action is not at arm’s length due to an alleged working and personal relationship between Messrs Bianchi and Drudi.
[6] The motion for adjournment of the conflict motion is to enable a further motion to require Mr. Drudi to answer questions refused on his cross examination in respect of the conflict motion.
[7] The adjournment motion was heard as a preliminary matter and dismissed following submissions on the basis that the information sought was neither necessary nor relevant to the conflict motion. It is obvious from the material that the defendants seek information relating to their quarrel with Mr. Bianchi but the information sought on the questions refused to not touch on the conflict motion.
[8] The conflict motion at its base, having read the transcripts and heard argument, is nothing more than conjecture on the part of one of the defendants Mr. Tersigni.
[9] Mr. Tersigni believes there is more to the relationship between Mr. Bianchi and Mr. Drudi than the arm’s-length referral of the plaintiff from Mr. Bianchi’s to Mr. Drudi’s firm.
[10] Mr. Tersigni bases his belief on two things:
His assertion that Mr. Bianchi told various people at a directors meeting of the defendants that he and Mr. Drudi and their respective children not only knew each other but socialized with each other.
that Mr. Cantor, a former solicitor for the defendants in the debt action, had a discussion with Mr. Drudi (acting for Kaycan) about settlement in the action in which judgment was obtained against the defendants.
[11] The evidence on the motion on which the defendants rely came from Mr. Tersigni and his assertion of what Mr. Bianchi supposedly said, a statement which is strongly denied not only by Mr. Bianchi but as well by Mr. Drudi. Mr. Drudi says simply that he knows who Mr. Bianchi is and while he has spoken to him on occasion and received other work from his firm neither he or his family have any social relationship with Bianchi.
[12] More telling for the purpose of this motion is the evidence of Bianchi that when his firm’s conflict became apparent he gave three or four names to the president of Kaycan of which Drudi was but one.
[13] Based on all of the evidence presented and the submissions made, I do not find that a reasonably informed member of the public would conclude that there was anything in the interaction between Messrs. Bianchi and Drudi that would lead to a conclusion that Mr. Drudi had any confidential information relating to the defendants in this action.
[14] Indeed there is nothing in the evidence of Mr. Cantor that would lead to that conclusion.
[15] It was on this basis that the motion for removal was dismissed.
[16] The motion to Amend the Statement of Defense dealt with the allegations in two paragraphs that sought to re-litigate the very same ground on which Mr. Justice Perell granted Summary Judgment in the debt action.
[17] It was urged by Mr. Mubarak on behalf of the defendants that the allegations of improper transfer of assets added an ingredient to the claim that should permit reconsideration of the facts found against the defendants previously.
[18] Whether classified as “res judicata” or issue estoppel, I conclude that it would be inappropriate to let the up proposed amendments go forward. Accordingly the motion to amend was dismissed.
[19] As to the proposed Counterclaim, it seeks to add a claim on an invoice for $9000 apparently unpaid by a company other than Kaycan but allegedly related to it.
[20] I see no basis on which the proposed counterclaim should proceed against Kaycan.
[21] In addition there was a motion by the plaintiff based on refusals of the defendants in this action was adjourned to permit the defendants to reconsider their position in light of the above rulings.
[22] The issue of costs on all the motions particularly for ones on which Mr. O’Brian of necessity appeared for Mr. Drudi as well as those on the amendments will be dealt with following receipt of written submissions.
C.L. CAMPBELL J.
Date: May 28, 2013