COURT FILE AND PARTIES
COURT FILE NO.: CV-13-472309
DATE: 20140526
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: 1737161 ONTARIO LIMITED, Applicant
AND:
1758704 ONTARIO INC. and 1191305 ONTARIO INC., Respondents
AND IN THE MATTER OF
COURT FILE NO.: CV-13-0356
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: 1758704 ONTARIO INC. and 1191305 ONTARIO INC., Plaintiffs
AND:
CARL PRIEST
AND IN THE MATTER OF
COURT FILE NO.: CV-14-500178-OT
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: GARY PRIEST TRUCKING LTD. AND CARL PRIEST, Plaintiffs
AND:
MARTIN DONKERS, Defendant
BEFORE: THE HON. MADAM JUSTICE S.E. HEALEY
COUNSEL:
B. Teplitsky, for the Plaintiffs/Applicants
W. McKenzie, for the Defendant /Respondents
HEARD: April 30, 2014
ENDORSEMENT
[1] Each of the proceedings referred to in the above three separate title of proceedings arises out of the sale of a business, in which 1737161 Ontario Ltd. agreed to buy from 1758704 Ontario Inc. and 1191305 Ontario Inc., the assets relating to a mulch and container business. 1737161 Ontario Ltd. is controlled by Carl Priest. Accordingly for ease, both 1737161 Ontario Ltd. and Carl Priest are referred to in the body of this endorsement collectively or singlely as the Priest parties. Both 1758704 Ontario Inc. and 1191305 Ontario Inc. are corporations controlled by Martin Donkers. Again for ease of reference these corporations and Mr. Donkers are referred to throughout this endorsement collectively or singlely as the Donkers parties.
[2] The Donkers parties represented by Mr. McKenzie have brought three motions currently before this court as follows:
- In CV-13-472309, an omnibus motion[^1] for multiple heads of relief for, including but not limited to:
i. An order striking out or staying the application without prejudice to the respondents issuing a counter-application against the Priest parties, nunc pro tunc, effective immediately so that judgment in the counter-application can be pronounced at this motion;
ii. An order directing the Registrar of the court at Barrie to issue the counter-application and for judgment against the Priest parties in the amount of $498,389.91;
iii. An order directing the Registrar of the court at Barrie to issue and enter prior orders, including today’s order, without approval or consent of the Priest parties;
iv. An order directing the Registrar of the court at Barrie to take such actions and make such requisitions as are necessary to forthwith transfer file CV-13-472309 from Toronto to Barrie;
v. For an interim and permanent injunction prohibiting the Priest parties from transferring or encumbering their assets pending further order of the court;
vi. Findings of contempt in relation to the Priest parties and their counsel in relation to the orders of Justice McCarthy and Justice MacKinnon.
- In 13-0356,
i. A motion[^2] for summary judgment on a promissory note;
ii. An order directing the Registrar of the court at Barrie to issue and enter the order of Justice McDermot dated June 25, 2013 without approval or consent of the Priest parties.
- In CV-14-500178-OT, another omnibus motion[^3] requesting, inter alia,
i. An order setting aside the Anton Piller order issued by Justice Perrell on March 14, 2014;
ii. An order that items seized by the independent supervising solicitor, Investigation Counsel PC, be returned to the Donkers parties forthwith in the same condition as the date of their seizure and that no access or inspection of the said assets shall be permitted in the interim;
iii. On order changing the venue of the action from Toronto to Barrie; and
iv. For summary judgment in favour of the Donkers parties.
Discussion
CV-14-500178
[3] Counsel for the Priest parties concedes that there is insufficient evidence from his clients to justify maintaining the Anton Piller order. The reason for this is that the Priest parties have not filed responding material to the motion to set aside the order, and their request for an adjournment at the outset of the motion to do so was denied for reasons set out in the handwritten endorsement of this court dated April 30, 2014. Accordingly, Mr. Teplitsky submitted to the court that while he could not consent to an order setting aside the Anton Piller order, nor could he oppose it.
[4] Based upon the unopposed evidence of the Donkers parties, this court orders:
An order nunc pro tunc staying, setting aside and dissolving and rendering nugatory the Order to Allow Entry and Search of Premises (Anton Piller Order) issued by Justice Perrell in this action without notice on Friday, March 14, 2014; and
An order that all items seized by the Independent Supervising Solicitor, Investigation Counsel PC, be returned to the defendant forthwith in the same condition as at the date of their seizure, and that no access to or inspection of the said assets shall be permitted prior to their return.
[5] In terms of the additional relief sought in that motion:
i) There is insufficient evidence in the record to grant summary judgment on the issue of liability or damages;
ii) Paragraphs 3 and 4, seeking relief against Investigation Counsel PC and Norman Groot are moot;
iii) The request to remove the law firm of Teplitsky, Colson is dismissed for lack of evidentiary basis to establish a conflict of interest warranting such extreme relief; and
iv) The request to restrain the Priest parties from commencing further legal proceedings against the Donkers parties is dismissed for lack of evidentiary basis to warrant such an extreme order from the court.
[6] However, the order to be issued shall further provide:
That Carl Priest and any corporation or other legal entity over which he has control or in which he is involved is prohibited from transferring, hiding, sheltering or converting any assets which are directly or indirectly the subject matter of this lawsuit including but not limited to monies that have been earned or received as income or proceeds of sale of any of these assets; and
The venue of this action shall be transferred from Toronto to Barrie, and the Registrars in each jurisdiction shall take such action and make such requisitions as are necessary to effect the transfer.
[7] The basis for this latter order is that there is an action ongoing in Barrie that deals with the same subject matter, and as the business that is the subject matter of this litigation is situated in Simcoe County, as is each of the corporations’ principals, it is desirable in the interests of justice to transfer the matter.
CV-13-472309
[8] The Donkers parties seek to have summary judgment on a counterclaim that has, to date, not been issued or served. They seek to strike out or stay the application.
[9] Neither the material of the Donkers parties or oral argument supports justification for striking out or staying the application at this time. Further, to grant summary judgment with respect to a pleading not even yet served defies all procedural justice. Finally, there is no jurisdiction under Rule 20 to consider summary judgment in the context of any proceeding other than an action.
[10] However, again in order to simplify this multiplicity of proceedings related to the same subject matter, this court makes the following orders:
This application shall be transferred from Toronto to Barrie, and the Registrars in each jurisdiction shall take such action and make such requisitions as are necessary to effect the transfer;
This application shall be consolidated with Barrie action number CV-13-0356, and the title of proceeding in the consolidated action shall reflect both of the styles of cause in each proceeding;
The Registrar of the court at Barrie shall issue and enter all prior orders made in these two proceedings (CV-13-472039 and CV-13-0356), including today’s order. If approval of those orders is not forthcoming from Mr. Teplitsky within five business days from the release of this decision, the Registrar may present them to Healey, J. for approval and signature;
The motion for contempt is dismissed; and
The request for an injunction prohibiting the Priest parties from transferring or encumbering their assets pending further order is dismissed.
[11] The latter two orders are being made on the basis that there is insufficient evidence to prove contempt beyond a reasonable doubt, or to meet the test for imposing a Mareva injunction.
CV-13-0356
[12] This court orders that Mr. Teplitsky shall have five business days from the release of this decision to approve the draft orders of McDermot, J. dated June 25, 2013, failing which the Registrar shall present it to Healey, J. for approval and signature.
[13] While the Donkers parties seek summary judgment on a promissory note in this action, and while the evidence may ultimately end up supporting the finding that no payments have been made, there are credits owed to the Priest parties for which insufficient proof can be found in the record now before the court to quantify such amounts owing. A trial is required for the court to have a full appreciation of this evidence.
[14] As success of these motions has been mixed, the costs shall be borne by each party.
HEALEY J.
Date: May 26, 2014
[^1]: Motion Record dated March 27, 2013, returnable April 30, 2014.
[^2]: Relief requested in the same Notice of Motion found in the Motion Record cited in the preceding footnote.
[^3]: Motion Record dated March 28, 2014, returnable April 30, 2014.