SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Christian Nicolas, Plaintiff
- and –
Standing Feather International Inc. (SFI), Defendant
BEFORE: Hackland J.
COUNSEL: Paul Fauteux, for the plaintiff
Peter Girard, for the defendant
ENDORSEMENT
1The parties have been engaged in an acrimonious dispute arising out of their involvement with the defendant company, a start-up business whose object is to establish a golf course recreational operation in Cuba. Unfortunately, for a variety of reasons, the Cuban deal or opportunity appears to have fallen through, leaving this company inactive and insolvent.
2The plaintiff obtained a judgment of this court dated December 10, 2013, following a default hearing, based on breach of the plaintiff’s contractual relationship with the company. The judgment is in the sum of $426,767.51 and, as noted, is against the company itself. Steps have been taken to attempt to enforce this judgment. The defendant brings before me a motion to set aside this judgment claiming that it was obtained by sharp practice and is based on false or misleading information provided to the court. The defendants also propose to set aside the default judgment of Maranger J. dated April 25, 2014 in action no. 14-59933, based essentially on the same arguments.
3I think it is incumbent on the court, and in the interests of the parties, to put a stop to what has become a continual round of pointless orders, usually obtained on a without notice basis, all relating to an insolvent company.
4Given the time limitations available to the court on this date and to the willingness of the parties to attempt some discussions to see if the Cuban project can be somehow revived and this litigation resolved, I have adjourned the matters before me to a date to be fixed in the future.
5In the circumstances, I order as follows:
(1) The court declares or clarifies that the default judgment obtained from this court on December 10, 2013 by Mr. Nicolas, does not impose any personal obligations on non-parties to pay the amounts awarded and the court will take steps to rectify the formal judgment which appears to create an ambiguity in this regard.
(2) I will seize myself of both proceedings i.e. this action and action no. 14-59933 which resulted in the order of Justice Maranger referred to previously.
(3) I adjourn the defendant’s motion to set aside my default order dated December 10, 2013 to allow the plaintiff’s counsel to file responding materials.
(4) Based on the parties agreement, I order that:
(a) No attempts-actions to enforce this court’s judgment or the judgment of Maranger J. in action no. 14-59933 shall occur without leave of the court; and
(b) No steps will be taken to place the defendant corporation into bankruptcy, without obtaining prior leave of this court.
(5) The court having been advised of SFI’s intention to move to set aside Maranger J.’s default order in action no. 14-59933 and agreement that no notice of motion need be served while the possibility of resolution is explored, such notice will be deemed to have been given as of this date.
(6) The issues referred to in this endorsement may be brought back before me on a date to be set by the trial co-ordinator upon request of counsel for the plaintiff or for the defendant corporation.
6Recognizing as I do that the defendant company is presently insolvent, and that the company’s potential value is in the revival of the opportunity to construct a golf course in Cuba, the parties are asked to co-operate to see if this opportunity can indeed be revived. The parties have advised that they intend to meet to determine whether there is a potential go-forward strategy in the absence of which a winding up or bankruptcy should be explored.
7Order accordingly.
Mr. Justice Charles T. Hackland
Released: June 6, 2014
COURT FILE NO.: 12-56286
DATE: 20140606
SUPERIOR COURT OF JUSTICE - ONTARIO
Christian Nicolas
- and –
Standing Feather International Inc. (SFI)
ENDORSEMENT
HACKLAND R.S.J.
Released: June 6, 2014