COURT FILE NO.: 17-72985
DATE: 2018/02/05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Noreast Electronics Co. Ltd.
Plaintiff
– and –
Eric Danis, EAJ Technical Corporation, Anya Watson and 8339724 Canada Inc.
Defendants
Ira Nishisato and Maureen Doherty
Pierre Champagne
HEARD: December 7, 2017
AMENDED REASONS FOR JUDGMENT
The text of the original endorsement was corrected on february 6, 2018 and the description of the correction is appended.
JUSTICE SALLY GOMERY
[1] This is a motion by the defendants to set aside two ex parte orders: an Anton Piller order and a Mareva injunction (the “Orders”).
[2] Noreast Electronics Co. Ltd. (“Noreast”) is an electronics manufacturer in Hawkesbury, Ontario. It is suing its former employee Eric Danis and his wife Anya Watson for fraud. The other two defendants in the lawsuit are companies owned and directed by Danis and Watson.
[3] Noreast obtained the Orders on June 20, 2017 from Justice Ryan Bell. On June 21, 2017, they were served on the defendants. The Anton Piller order was executed, with a search being conducted at Danis and Watson’s home and records seized. The Mareva injunction was served on the financial institutions where the defendants have accounts and these accounts were frozen. Noreast terminated Danis’ employment the same day.
[4] The Orders were continued on consent until a decision on this motion.
The approach to be taken on the motion to set aside
[5] On a motion to set aside an ex parte order, the court considers not only the evidence before the judge who first issued the order, but any further evidence since submitted by the parties, including evidence obtained as a result of the order.[^1]
[6] An Anton Piller order or a Mareva injunction obtained may be set aside for three reasons:
In obtaining the order, the moving party failed to fully and fairly disclose all material facts.
Based on the evidence before the reviewing court, the test for an order is not met.
The order was executed improperly.
[7] According to the defendants, the Orders should be set aside on all three of these grounds.
What evidence was before Justice Ryan Bell?
[8] The defendants argue that Noreast failed to disclose various material facts when it obtained the Orders. My analysis must therefore begin by reviewing the evidence that was before Justice Ryan Bell.
[9] Noreast relied on two affidavits in support of its motion: an affidavit from Irma Maxwell, a Noreast director and general manager of payroll, accounting and financial administration support services, and an affidavit from Gary Timm, a forensic accountant with Deloitte Forensic Inc.
The Maxwell affidavit
[10] In her June 12, 2017 affidavit, Maxwell stated that Danis had worked for Noreast since 1985 and was currently its Director of Sales. In June 2017 he was earning a base salary of $46,820 plus a commission of 1.5% on all company sales. He is also a 20% shareholder of Noreast through his company 8339724. Watson has never worked for Noreast.
[11] Maxwell said that Danis encouraged Noreast in 2009 to begin sourcing electronic components and other parts from China. When Noreast accepted this suggestion, Danis assumed responsibility for the procurement from five Chinese suppliers, handling all communications with them on Noreast’s behalf. According to Maxwell, her colleagues suggested on several occasions that someone else from Noreast could assist him with purchasing from and invoicing of Chinese suppliers. Danis refused these offers, saying he was the only person who should deal with them.
[12] In April 2010, Danis forwarded an email to Maxwell which he said was from a Chinese supplier. In this email, the supplier asked Noreast to start paying the amounts owed on invoices to the bank account of a company called EAJ Technical Corporation (“EAJ”) at Wells Fargo Bank in Wyoming. An invoice with the new banking direction, on the letterhead of the Chinese supplier, was attached. The name “EAJ” was familiar to Maxwell since this same supplier had previously instructed Noreast to send payments to EAJER Industrial Limited at HSBC Bank in Hong Kong. Noreast accordingly did not question the supplier’s new instruction to make payments to the EAJ account in Wyoming.
[13] Maxwell said that, in the months and years that followed, Danis provided hardcopy invoices to Noreast for products sold by its Chinese suppliers. These invoices directed that payment was to be made to the same Wells Fargo account in Wyoming.
[14] On March 22, 2017, Noreast received a package from one of its Chinese suppliers. Unusually, there was an invoice enclosed with the package. It looked different than the ones that Danis had been delivering to Noreast in the preceding seven years. The direction on the invoice said that payment should be made to a Chinese bank. The prices on the new invoice were half the amount as much as those on the invoices that Noreast was accustomed to receiving through Danis.
[15] Maxwell’s colleague did an internet search on EAJ and found a website where Danis was listed as its president. This prompted Noreast to begin investigating further.
[16] In her affidavit, Maxwell identified potential sources for further information in the defendants’ possession and control. She expressed the view that, if an Anton Piller order was not issued, Danis would destroy evidence.
The Timm affidavit
[17] After Noreast discovered Danis’ connection to EAJ, it retained Deloitte Forensic Inc. to conduct an investigation of purchases from Chinese suppliers between April 1, 2010 and May 10, 2017. Timm led the investigation. His team searched publicly available information, interviewed Maxwell and Noreast’s IT director and reviewed Noreast’s records of purchases from Chinese suppliers. In his June 9, 2017 affidavit, Timm stated that:
− EAJ was incorporated in Wyoming in March 2010. The only officer or director identified in the corporate filing is EAJ’s secretary, Gerald Pitts. Pitts is the president of Wyoming Corporate Services, a company that helps incorporate companies whose directors, officers and shareholders wish to remain off the public record. Wyoming law does not require companies to disclose this information.
− Despite the lack of disclosure in EAJ’s incorporation documents, Timm found records that linked Danis to EAJ. EAJ’s 2015 annual report identified Danis as its president. Danis also identified himself as an EAJ director in an email to a third party, and filed a T4 for 2011 indicating he had received employment income of over $121,000 from Noreast.
− Timm also located a cheque record that linked Watson to Noreast.
− Beginning April 2010, Chinese suppliers began submitting invoices to Danis through his Noreast email account. These invoices directed payment to accounts in banks in China and Hong Kong. Danis forwarded these invoices to a personal email account, then created new invoices that looked like they were issued by the Chinese suppliers. These new invoices directed payment to EAJ’s Wells Fargo account in Wyoming. Danis delivered hard copies of these invoices to Noreast for payment.
− The unit prices on these invoices were inflated by 20% to 200% above the prices on the invoices actually submitted by the Chinese suppliers. On the invoices Noreast was directed to make payments to the Wells Fargo account in Wyoming.
− Noreast made payments of USD $1,882,886 to the Wells Fargo account between April 8, 2010 and May 10, 2017;
− In emails to Chinese suppliers, Danis directed that any pricing must be given only to him and to no one else at Noreast, and that no invoices should be sent with their shipments.
− Danis and Watson had assets, including a house, a cottage, cars a boat and various bank accounts in Ontario.
Justice Ryan Bell’s Orders
[18] In granting the Mareva injunction, Justice Ryan Bell used the test set out in Aetna Financial Services v. Fiegelman and Chitel v. Rothbart.[^2] She held that Noreast was entitled to an injunction because:
Noreast had demonstrated a strong prima facie case;
it had provided particulars of the claim against the defendants and a fair statement of the points that could be made against it by the defendants;
there were grounds for believing that the defendants had assets in Ontario;
there were grounds for believing that there was a risk of the defendants’ assets being removed from the jurisdiction or dissipated or disposed of before judgment. In this regard, the judge noted the strength of the evidence of fraud, an important factor in a Mareva injunction; and
Noreast provided an undertaking as to damages.
[19] Justice Ryan Bell held that Noreast had met the test for an Anton Piller order established by the Supreme Court of Canada in Celanese Canada Inc. v. Murray Demolition Corp.[^3] She found that:
Noreast had demonstrated a strong prima facie case;
it had established serious damage as a result of the defendants’ alleged misconduct;
there was convincing evidence that Danis had relevant evidence at his property because he used computers and email accounts to carry out the alleged fraud; and
there was real risk of destruction of evidence if the order was not granted, based on Danis’ alleged misconduct and the fact that some of it was in electronic form.
Did Noreast fail to fully and fairly disclose material facts when it sought the Orders?
The disclosure obligation on an applicant for ex parte order
[20] A party applying for an ex parte order is obliged to disclose all material facts relevant to the order sought. Rule 39.01(6) of the Rules of Civil Procedure provides:
Where a motion or application is made without notice, the moving party or applicant shall make full and fair disclosure of all material facts, and failure to do so is in itself sufficient ground for setting aside any order obtained on the motion or application.
[21] Applicants for ex parte orders are required to make this disclosure because the respondent has no opportunity to present their version of the events. In the words of Justice Sharpe, “The situation is rife with danger that an injustice will be done to the absent party”.[^4]
[22] Due to their draconian nature, the disclosure obligation is particularly important in the context of applications for Anton Piller or Mareva orders. An Anton Piller order permits an applicant to conduct a surprise search of the respondent’s office or home. A Mareva injunction freezes the respondent’s assets until trial. In granting such exceptional orders, the court must be certain that the supporting evidence gives it fair insight into both the applicant’s case and the respondent’s potential defence.
[23] The applicant is accordingly “not entitled to present only its side of the case in the best possible light, as it would if the other side were present. Rather, it is incumbent on the moving party to make a balanced presentation of the facts in law. The moving party must state its own case fairly and must inform the Court of any points of fact or law known to it which favour the other side.”[^5]
[24] In order to ensure that all material facts are before the court, the applicant also has an obligation to conduct a reasonable investigation before seeking ex parte orders. As Justice Stinson observed in Parallel Medical Services Ltd. v. Ward:
A judge hearing such a motion (not to mention the absent party who will be affected by any order granted) is at the mercy of counsel for the moving party and must expect and rely upon counsel’s proper discharge of this important obligation. That obligation extends to fairly stating the case against granting the relief sought, and this can only be done where appropriate steps have been taken to verify the reliability of the information provided by the client and to determine what the defendant would likely say if given the opportunity to argue against the granting of the order.[^6]
[25] The applicant’s disclosure obligation is, however, limited to material facts and the fruits of reasonable investigation. A fact is material if its non-disclosure could affect the outcome of the motion.[^7]
Did Noreast fail to disclose material facts?
[26] The defendants say that Noreast failed to provide Justice Ryan Bell with material facts and to acknowledge that there could be an innocent explanation for the defendants’ conduct. In their submission, Noreast mischaracterized EAJ’s role in purchases from Chinese suppliers. They say that EAJ was acting as a wholesaler or reseller, and that the mark-ups on the prices charged by the suppliers reflected standard industry practice to recover administrative costs and a profit.
[27] They also argue that Noreast had an obligation to further investigate the situation before seeking the Orders. Had it done so, it would have realised that Danis never deliberately hid his involvement with EAJ from Noreast. He was simply never asked about any connection he had with the company. When he first discussed the possibility of Noreast sourcing parts from China with his boss at Noreast in 2009, he was told that purchasing was not part of his role as a salesperson and that he would not be compensated for this work. As a result, he did his work for EAJ in his spare time.
[28] Finally, the defendants argue that Noreast has not proved any damages, because it made the choice to purchase components at the prices proposed by EAJ, and there is no evidence that it overpaid. They also contend that Noreast failed to advise the Court about the value of Danis’ shares in Noreast through the defendant numbered company. According to the defendants, these shares are worth over a million dollars, enough to offset any loss by Noreast. The shares furthermore function as security since Danis cannot sell them without the company’s consent.
[29] I find that many of the defendants’ assertions do not withstand scrutiny. They are furthermore not material, because they would not have caused Justice Ryan Bell to refuse to issue the Orders.
[30] The idea underlying the defendants’ argument is that EAJ’s role as a middleman was not hidden from Noreast. This idea is inconsistent with the evidence available when Noreast applied for the Orders. The invoices submitted by Danis were made to look as though they came directly from Chinese suppliers. They were on the suppliers’ letterhead. The Wells Fargo account was described on the invoices as “Our Account”. Nothing on the invoices indicated that prices had been marked up.
[31] There was furthermore evidence that contradicts Danis’ assertion that he never took active steps to conceal EAJ’s role. He submitted misleading or false invoices. He directed the Chinese suppliers not to send their actual invoices with shipments of their products. He insisted to Maxwell and others that he personally handle all dealings with the suppliers.
[32] The argument that Noreast did not necessarily overpay for seven years is also inconsistent with the evidence. The company was able to purchase components from the same Chinese suppliers, without any markup, prior to April 2010.
[33] I do not accept that the value of Danis’ shareholder interest in Noreast is a material fact. The only evidence of this value has been provided by Danis, who is neither an expert in business evaluation nor a disinterested party. There is also no evidence that the shares have any value on the open market or could function as security for any damages suffered by Noreast.
[34] I am of course not making a finding that the defendants’ activities were fraudulent. This is a determination that can only be made by a trial judge. But the evidence before Justice Ryan Bell strongly suggests fraud. I cannot fault Noreast for failing to tell the judge that there could be an innocent explanation for the defendants’ conduct. An applicant’s obligation of fair disclosure does not extend to speculating that there might be further evidence that would fundamentally contradict the initial findings of a reasonably comprehensive investigation.
[35] I also reject the defendants’ argument that Noreast was obliged to confront Danis or the suppliers with the evidence before seeking the court’s assistance. In her affidavit, Maxwell said that she feared Danis would destroy records if he knew that Noreast had discovered his involvement in EAJ. Given Danis’ efforts over a seven year period to conceal his involvement in EAJ, her concern was reasonable. That is one of the bases for the Orders.
Did Noreast otherwise fail to meet the conditions to obtain interlocutory relief?
[36] The defendants argue that, in addition to meeting the specific tests for the Orders, Noreast had to satisfy the test for an interlocutory injunction established by the Supreme Court of Canada in RJR Macdonald.[^8] In Johnson v. Helo Enterprises, Justice Smith held that an applicant for an Anton Piller order also had to show that it would suffer irreparable harm if the order was not issued, and that the balance of convenience favoured the applicant.[^9] The defendants say that Noreast cannot satisfy either of these parts of the RJR Macdonald test. First, Noreast has, at most, suffered an economic loss. Second, the balance of convenience favours the defendants, because the execution of their Orders violates their privacy rights and deprives them of access to their own assets.
[37] In my view, the requirement of proving irreparable harm is imbedded in the recognized criteria for the Orders. To obtain an Anton Piller order, an applicant must convince the court that there is a real risk of destruction of evidence if the order was not granted. If the applicant meets this part of the test, they have also shown the risk of irreparable harm, since in the absence of the order sought they would be unable to prove their case and limit further damages. To obtain a Mareva injunction, a court must find that the defendant might otherwise dispose of or dissipate their assets, or remove them from the jurisdiction. In other words, unless the order is issued, the applicant may lose any ability to ever execute an eventual judgment. This is again a form of irreparable harm.
[38] Similarly, exercising the discretion inherent in the tests requires the court to balance the potential harm to the applicant if ex parte relief is not granted with the harm inherent in the execution of such orders. That is why applicants have the onus to make full disclosure and provide strong prima facie proof. It is hard to imagine a situation where a judge could conclude that an applicant had met the test for Mareva or Anton Piller orders but that, on the same evidence, the balance of convenience favoured the defendant. We are certainly not in such a situation in this case.
[39] The defendants make a further argument regarding Noreast’s right to injunctive relief. They contend that Noreast did not have clean hands, because it engages in unethical business practices.
[40] The doctrine of clean hands does not mean that an applicant for equitable relief has to have led “a blameless life”:
The misconduct charged against the plaintiff as a ground for invoking the maxim against him must relate directly to the very transaction concerning which the complaint is made, and not merely to the general morals or conduct of the person seeking relief… .[^10]
[41] I do not see any link between the alleged misconduct by Noreast and the fraud allegations against the defendants. I accordingly reject the defendants’ argument that Noreast was simply not entitled to any equitable order.
Does the evidence now before the Court justify the continuation of the Orders?
What further evidence is now before the Court?
[42] The parties have filed further evidence since the Orders were issued. I have already alluded to the defendants’ evidence. In Danis’ affidavits, he denies that he ever sought to conceal his role in EAJ or that he was obliged to disclose it, since he had no formal contract of employment or fiduciary role within Noreast. He says that he was doing all of his work for Noreast in his spare time and therefore did not need to account to Noreast for it. He says that he remained at all times a dedicated and good employee.
[43] At the same time, Danis contends that he was justified in concealing his link to EAJ given a hostile work environment at Noreast and his fear that he would be fired. He argues that Noreast was clearly satisfied with the prices it paid for to Chinese suppliers and the components it received from them, as it never sought to procure these same components from other sources after 2010.
[44] In affidavits sworn by Watson, she says that she had only a modest administrative role in EAJ. She describes how the Orders were executed, and the impact this has had on her family.
[45] New evidence filed by Noreast includes:
− Records showing Watson’s extensive involvement in EAJ’s operations. In addition to creating the invoices submitted to Noreast, she did all of EAJ’s accounting and record keeping, and arranged for payments to Chinese suppliers on EAJ’s behalf. Watson also dealt with and instructed EAJ’s accountants, BDO, in the preparation of tax filings.
− A detailed account of Watson and Danis prepared the invoices delivered to Noreast. Watson admits that she created templates that looked as though they were issued by Chinese suppliers, and which described the EAJ Wells Fargo account as the suppliers’ “USA sales office account”. The prices she indicated on the invoices were provided to her by Danis. The markups were not shown on the invoices.
− Records showing that Watson received $847,156.34 in salary from EAJ from 2011 to 2016, which she deposited in various US bank accounts.
− Emails and other records showing that Danis and Watson took active steps to conceal their role in EAJ when the company was incorporated.
− An admission by Watson that she and Danis had no property, business or family in Wyoming, and a lack of any explanation for why they decided to incorporate EAJ there or give the company a name similar to EAJER.
− An admission by Watson that Noreast was EAJ’s only customer and its only source of revenue.
− A list of over 30 bank accounts held by the defendants at financial institutions in the US and Canada.
Does the evidence now before the Court justify the Anton Piller order?
[46] On all of the evidence now before the court, I find that Noreast has met the test for an Anton Piller order. The additional evidence it has obtained through execution of the order has strengthened its already strong prima facie case that the defendants were conducting a fraudulent scheme. It has evidence of actual or potential serious financial loss. The defendants have incriminating records or other evidence in its possession.
[47] I infer, based on all of the evidence, a real possibility that the defendants may have taken steps to destroy or conceal incriminating records before discovery could take place, if the order had not been granted. As pointed out in numerous decisions, a court may infer a risk of destruction of evidence from a defendant’s dishonest conduct and the ease with which certain types of evidence may be removed or disposed of.[^11] In this case, the evidence shows that Danis misled Noreast about his role in EAJ, and what exactly EAJ was doing in connection with purchases from China.
Does the evidence now before the Court justify the continuation of the Mareva injunction?
[48] The defendants concede that Noreast has proved that they have assets in Ontario and that it has given an undertaking with respect to damages if it fails to prove its case at trial. They argue however that Noreast has not met the other elements of the test for a Mareva injunction.
[49] I have already concluded that Noreast met its disclosure obligation when it applied for the Orders, and that it has presented strong prima facie evidence of fraudulent conduct by Danis, Watson and EAJ. Whether or not Danis had a fiduciary obligation to Noreast is not determinative of its right to recover excess amounts paid to EAJ. The defendants contend that Noreast’s claim for monetary damages far exceeds its actual losses. In my view, however, the test for a Mareva injunction does not require me to conclude that Noreast will get all of the money it claims in its lawsuit. Based on the evidence, its actual damages are serious.
[50] This leaves the question of the dissipation or removal of assets, the fourth leg of the Mareva test. The defendants say there is no evidence of any real risk. They point out that Danis and Watson have their family residence, their four cars, their boat and most of their bank accounts in Ontario. They admit that Watson deposited the money she received from EAJ into U.S. bank accounts in Wyoming and Georgia, but say that it was subsequently flowed back to Canada.
[51] Canadian courts have long debated what a plaintiff in a fraud case must prove the risk of dissipation or removal of assets. A plaintiff without any direct evidence may argue that the defendant’s conduct makes them inherently untrustworthy. This has led to consideration of whether there is a “fraud exception” to the usual criteria for a Mareva injunction.
[52] In Sibley & Associates LP v. Ross, Justice Strathy (as he then was) did a comprehensive review of the caselaw on this question.[^12] He concluded that there was no broad fraud exception, although strong proof of fraud is relevant to the assessment of risk. In considering whether to grant or continue a Mareva injunction, he was of the view that:
It should be sufficient to show that all the circumstances, including the circumstances of the fraud itself, demonstrate a serious risk that the defendant will attempt to dissipate assets or put them beyond the reach of the plaintiff.[^13]
[53] I agree. Using this approach, I infer a real risk that the defendants will attempt to dissipate or hide their assets or remove them from the jurisdiction. Strong prima facie evidence of fraud is coupled with other circumstances that give rise to risk, including:
The use of a foreign corporation by Danis and Watson as a vehicle for the alleged fraud;
Watson’s transfer of funds from that company to U.S. accounts; and
the existence of over 30 bank accounts in the name of the defendants in Canada and the U.S., and an additional 20 or so investment accounts and credit card accounts.
[54] As Justice Strathy found in Sibley, the defendants’ conduct in this case “bears the badges of fraud --- a pattern of clandestine and deceitful action over a prolonged period of time, including the attempt to avoid detection by using a nominee or a “dummy” to conceal the fraudulent activity”.[^14] The defendants’ activities in the U.S., and the complexity of their financial arrangements, tip the balance, tip the balance in favour of the plaintiff.
[55] For all of these reasons, I conclude that the Mareva injunction should remain in place until the trial of the action.
[56] If the injunction remains in place, defendants have asked that its scope be reduced. They say that the freezing order should not apply to accounts held solely by Watson, because she has “nothing to do” with the core litigation between Noreast and its former employee Danis. There are also some accounts held jointly by Watson and her children or father, and a Registered Education Savings Plan account.
[57] Based on the evidence to date, it is absurd to say that Watson is not directly involved in the fraud alleged by Noreast. She was the direct recipient of most of EAJ’s profits, as evidenced by her tax returns and her testimony on cross-examination. Until the money transferred to her U.S. accounts can be traced, there is no way to know whether it ended up in accounts opened only in her name, or jointly with other family members. I am therefore not prepared to limit the scope of the injunction to accounts only in Danis’ name.
[58] If there is an RESP account that has been frozen as a result of the Mareva injunction, the scope of the order should be reduced to exclude it. It is not clear whether this is actually an issue. Watson says in her June 26 affidavit that RBC account no. 03822-5014055 holds funds for her son Caleb’s educational plan investments. In her June 28 affidavit, however, she identifies it as a joint savings account. She says something similar in her June 26 affidavit about RBC account no. 04104-5018668, but then lists it as an account solely in her own name in her June 28 affidavit.
Did Noreast improperly execute the Anton Piller order?
[59] The defendants say that Noreast executed the Anton Piller order improperly. They allege that the search of Danis and Watson’s home on June 21, 2017 was improper because:
− Deloitte is Noreast’s accounting firm and as such is not a neutral third party.
− Noreast’s lawyers at Borden Ladner Gervais (“BLG”) were inappropriately involved in the search and may have had access to privileged information as a result.
− certain records and items, such as personal and medical information and Danis’ cellphone, were improperly seized.
[60] Based on these allegations, the defendants say that the Court should set aside the Anton Piller order, require that all records seized be returned to them, and order Noreast to pay an unspecified amount of damages.
[61] In her June 26 affidavit, Watson describes how the Anton Piller order was executed at the family home. A competing account is set out in affidavits by Paul Lepsoe, the Independent Supervising Solicitor named in the order, and Laura Peacock, a law clerk with BLG who attended the search. The Lepsoe and Peacock affidavits, which I prefer, establish that the order was executed in a professional and appropriate manner.
[62] In light of my finding on this point, I need not consider what remedy could flow from an improperly executed Anton Piller order.
[63] There is a debate about who owns a cellphone seized during the search. In light of this, the ISS should make a copy of any electronic records on the phone and return the device to Danis. I assume that Noreast has already cancelled its contract for services for the phone.
Conclusions
[64] For the reasons set out above, I dismiss the defendants’ motion to set aside the Orders. I direct that, if the Mareva order currently affects an RESP account, it should be modified so that it no longer does so. I also direct that the iPhone seized from Danis’ residence be returned to him, although the ISS should retain a copy of electronic data on it.
[65] In the motion, the defendants seek an order permitting them to withdraw $12,655 per month for living expenses. Such an order was in fact already issued, on consent, on November 28, 2017. In oral argument, the defendants’ counsel said that the order was not enforceable, but did not provide any specifics. Should the defendants require a clarification of the existing order, they should submit evidence and argument in support.
[66] If the parties cannot agree on costs, counsel for the plaintiff may file a draft bill of costs and submission of no more than three pages within the next seven days. Counsel for defendants will then have seven days to file responding submissions of no more than three pages.
Justice Sally Gomery
Released: February 5, 2018
COURT FILE NO.: 17-72985
DATE: 2018/02/05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Noreast Electronics Co. Ltd.
Plaintiff
– and –
Eric Danis, EAJ Technical Corporation, Anya Watson and 8339724 Canada Inc.
Defendants
REASONS FOR JUDGMENT
Justice S. Gomery
Released: 2018/02/05
Appendix
In the CITATION portion appearing on the cover page and on the last page of the decision should read as follows:
rather than
Also, on the cover page of the decision the HEARD date should read as follows:
December 7, 2017
rather than
December 7, 2018
[^1]: Alberta Treasury Branches v. Leahy, 2002 ABCA 101, [2002] AJ No. 524, leave to appeal denied [2002] SCCA 235.
[^2]: Aetna Financial Services Ltd. v. Fiegelman, 1985 CanLII 55 (SCC), [1985] 1 S.C.R. 2; Chitel v. Rothbart, 1982 CanLII 1956 (ON CA), [1982] O.J. No. 3540 (C.A.).
[^3]: 2006 SCC 36, [2006] S.C.J. No. 35 at para. 35.
[^4]: United States of America v. Friedland, [1996] O.J. No. 4399, 1996 CarswellOnt 5566 (Gen. Div.) at para. 26.
[^5]: USA v. Friedland at para. 27.
[^6]: [2002] O.J. No. 1498, 2002 CarswellOnt 1181 (S.C.) at para. 18.
[^7]: Pazner v. Ontario, 1990 CanLII 6649, 74 O.R. (2d) 130 (HCJ) at para. 11. See to the same effect Ontario Realty Corp. v. P. Gabriele & Sons Ltd., [2000] O.J. No. 4341 (S.C.) at para. 39 and Coupey v. Hamilton Police Services Board, [2005] O.J. No. 2223 (S.C.) at paras. 37 and 40.
[^8]: RJR MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 SCR 311.
[^9]: Johnson v. Helo Enterprises Inc., 2012 ONSC 5186 at para. 34.
[^10]: Toronto (City of) v. Polai (1970), 1969 CanLII 339 (ON CA), 8 DLR (3d) 689 (Ont. CA) at pp. 699-700.
[^11]: Dunlop Holdings Ltd. v. Staravia Ltd., (1981) Decision No. 1998 (C.A.) at 3, n 4-5; Rank Film Distributors Ltd. v. Video Information Centre, [1980] 2 All E.R. 273 (C.A.) at 286-87.
[^12]: 2011 ONSC 2951 at paras. 15 to 65.
[^13]: Sibley at para. 63.
[^14]: Sibley at para. 66.