CITATION: Joyce v. MtGox Inc., 2016 ONSC 581
COURT FILE NO.: CV-14-500253CP
DATE: 20160121
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DAVID JOYCE, SANCHO McCANN, ALEXANDRE PEPIN and PAUL COLLIN
Plaintiffs
– and –
MTGOX INC., MT. GOX KK, TIBANNE KK, MT. GOX NORTH AMERICA INC., MIZUHO BANK, LTD., MARK KARPELES and JED MCCALEB
Defendants
Theodore Charney and Samantha Schreiber for the Plaintiffs
Shane C. D’Souza and Trevor Courtis for the Defendant Mizuho Bank, Ltd.
Andrew Porter for the Defendant Mark Karpeles
Proceeding under the Class Proceedings Act, 1992
HEARD: January 21, 2016
PERELL, J.
REASONS FOR DECISION
[1] This is a substantive direction made at a case conference in this proposed action under the Class Proceedings Act, 1992, S.O. 1992, c.6.
[2] The background is that the Defendant Mizuho Bank, Ltd., a Japanese company, has challenged the jurisdiction of this court and there is a motion scheduled for February 12, 2016 to decide the jurisdiction issue.
[3] The Plaintiffs, however, seek an adjournment of the motion in order to summons witnesses in aid of the motion, but the Defendants resist having the witnesses summoned and the Defendants object to any adjournment. The Defendants submit that an adjournment will be prejudicial because the time for commencing third party proceedings will shortly expire pursuant to s. 18 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B.
[4] The problem or dilemma for the Defendants is that they cannot commence third party proceedings without attorning to the court’s jurisdiction making the jurisdictional challenge moot.
[5] The problems about the pending jurisdiction issue motion are further compounded by the fact that I cannot decide at a case conference the matter of whether there should be examinations in aid of the motion.
[6] What I can, however, resolve is the prejudice the Defendants are under by the pending expiry of the limitation period for claims for contribution and indemnity. I can resolve the prejudice by ordering that the Defendants may deliver a pro forma defence and commence third party proceedings forthwith without attorning to the court’s jurisdiction. I, therefore, order as follows:
a. the Defendants may deliver pro forma defences and shall be granted leave to amend the defences, if necessary, after the determination of the jurisdiction motion;
b. the Defendants may commence third party proceedings or cross-claims as they may be advised;
c. the delivery of a statement of defence and the commencement of third party claims or cross-claims shall not be deemed to be an act of attorning to the jurisdiction of this court;
d. the jurisdiction motion shall be adjourned sine die;
e. the motion with respect to summonses shall be heard on February 12, 2016; and
f. costs claims, if any, reserved to the jurisdiction motion.
[7] Order accordingly.
Perell, J.
Released: January 21, 2016
CITATION: Joyce v. MtGox Inc., 2016 ONSC 581
COURT FILE NO.: CV-14-500253CP
DATE: 20160121
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DAVID JOYCE, SANCHO McCANN, ALEXANDRE PEPIN and PAUL COLLIN
Plaintiffs
– and –
MTGOX INC., MT. GOX KK, TIBANNE KK, MT. GOX NORTH AMERICA INC., MIZUHO BANK, LTD., MARK KARPELES and JED MCCALEB
Defendants
REASONS FOR DECISION
PERELL J.
Released: January 21, 2016