Raponi v. Olympia Trust Company, 2023 ONSC 6384

COURT FILE NO.: CV-20-00643593-0A31

DATE: 20231110

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DANIELE RAPONI

Plaintiff

• and –

OLYMPIA TRUST COMPANY

Defendant

Proceeding under the Class Proceedings Act, 1992

Garth Myers for the Plaintiff

Ryan Morris, Daniel Szirmak, and Imad Alame for the Defendant

HEARD: November 10, 2023

PERELL, J.

ENDORSEMENT

Background

1The defendant Olympia Trust Company is a non-deposit taking trust corporation formed under the Alberta Loan and Trust Corporations Act,¹ with its head office located in Calgary, Alberta. It served as custodial trustee for investors’ registered plan investments in syndicated mortgage loans arranged by Fortress Real Developments Inc. and its affiliates.

2In a proposed class action, pursuant to the Class Proceedings Act, 1992,² the Plaintiff Daniele Raponi sought to hold Olympia Trust responsible for losses sustained as a result of his and other proposed Class Members’ investments in the Fortress syndicated mortgage loans.

3Mr. Raponi’s action, however, was dismissed by order dated August 2, 2022³ which order was upheld by the Court of Appeal for Ontario in a decision dated June 16, 2023.⁴

4Mr. Raponi has not sought leave to appeal to the Supreme Court of Canada and the litigation of the main action has concluded. More than 30 days have passed since the time limit for the plaintiff to seek leave to appeal to the Supreme Court of Canada.

5Olympia Trust requested a case conference to address the status of 74 third party claims against 143 third parties. Those third party proceedings were commenced in 2021.

6Given the dismissal and conclusion of the main action, Olympia Trust seeks an endorsement confirming that its third party claims are deemed to be dismissed and that no further steps are required by Olympia Trust to dismiss the third party claims.

Analysis

7I am converting this case conference into a motion pursuant to s. 12 of the Class Proceedings Act, 1992. For the reasons that follow, I grant Olympia Trust’s request.

8Since 2021, the third party claims have been dormant pending the determination of the plaintiff’s Certification Motion. Olympia Trust delivered its third party claims and then did not take any further steps. None of the third parties took any steps to defend the third party claims, other than some of them delivered Notices of Intent to Defend.

9The Rules of Civil Procedure⁵ expressly deem that third party claims are dismissed 30 days after the discontinuance of the main action (Rule 23.03) or the dismissal of the main action for delay (Rule 24.04). The Rules of Civil Procedure, however, do not expressly provide for the same result when the main action is dismissed on its merits.

10There are good reasons why the Rules of Civil Procedure do not provide an automatic mechanism for addressing the situation of third party claims when the main action is dismissed. The third party has a right to participate in the main action and may have done so. The third party proceedings may - unlike the situation in the immediate case – have been active and not dormant. The matter of a third party claim can usually be dealt with by the judge dismissing the main action.

11However, in the immediate case, where the third party claims have been dormant, it does seem appropriate to treat them as if they were discontinued and then automatically dismissed following the dismissal of the main action.

12The issue then becomes whether the court has the jurisdiction to respond to Olympia Trust’s request.

13The answer to that issue is yes. Since the third party proceedings were part of a proceeding governed by the Class Proceedings Act, 1992, section 12 of that Act provides an answer. Section 12 empowers the court on its own initiative to make any order it considers appropriate respecting the conduct of an action governed by the Act. Section 12 states:

Court may determine conduct of proceeding

12 The court, on its own initiative or on the motion of a party or class member, may make any order it considers appropriate respecting the conduct of a proceeding under this Act to ensure its fair and expeditious determination and, for the purpose, may impose such terms on the parties as it considers appropriate.

14In my opinion, in the immediate case, an omnibus dismissal of the dormant third party claims makes good sense. Such an order is fair to all concerned and in the interests of the administration of justice.

15Amongst other advantages, a deemed omnibus dismissal of the third party claims avoids the expense and the logistical challenges for the parties and for the Court that would be associated with serving notices of discontinuance or materials for a dismissal motion on all 143 third parties. The third parties should be spared from having to seek legal advice. There is no prejudice to the third parties whose claim for costs thrown away would be de minimis.

16Some of the third parties did not retain counsel nor respond to Olympia Trust despite having notice of the third party claims. Others only filed notices to defend. In the circumstances of the immediate case, I see no purpose in requiring service of a formal notice of motion for an omnibus dismissal of the third party claims.

Disposition

17The third party claims that are being dismissed shall be set out in the court’s Order.

18I grant Olympia Trust’s request. Order accordingly.

Perell, J.

Footnotes

1. 1R.S.A. 2000, c. L-20.
2. 2S.O. 1992, c. 6.
3. 3Raponi v. Olympia Trust Company, 2022 ONSC 4481.
4. 4Raponi v. Olympia Trust Company, 2023 ONCA 428.
5. 5R.R.O. 1900, Reg. 194.