



COURT OF APPEAL FOR ONTARIO

CITATION:
Alfano v. Piersanti, 2012 ONCA 612

DATE: 20120918

DOCKET: C54547

Cronk, Epstein and Pepall JJ.A.

BETWEEN

Bertina Alfano, Trustee of the Carmen Alfano Family
    Trust, Bertina Alfano, Italo Alfano, Trustee of the Italo Alfano Family Trust,
    Italo Alfano, Ulti Alfano Trustee of the Ulti Alfano Family Trust, and Ulti
    Alfano

Plaintiffs (Respondents)

and

Terry Piersanti also known as Terry Scatcherd,
    Christian Piersanti, Piersanti and Co. Barristers and Solicitors, Piersanti and
    Co. Professional Corporation, 1269906 Ontario Limited, 1281111 Ontario Limited,
    1281038 Ontario Limited, 1314112 Ontario Limited, 1281633 Ontario Limited,
    1281632 Ontario Limited, 1466556 Ontario Limited, 3957331 Canada Inc., 3964400
    Canada Inc., 3968626 Canada Inc., 4002598 Canada Inc., 4011902 Canada Inc.,
    6051685 Canada Inc., 6060439 Canada Inc. 6260365 Canada Inc., 6292470 Canada
    Inc., 6306560 Canada Inc., 6324223 Canada Inc., 6792715 Canada Inc., Yonge
    Centre Properties Inc., 6335144 Canada Inc., TMJ Investments, Tara Piersanti
    also known as Tara Piersanti-Blake, Justin Piersanti and Morgan Piersanti

Defendants (Appellants)

V. Ross Morrison and R. Samantha Chapman, for the
    appellants

James F.  Diamond, for the respondents

Kyla E.M. Mahar, for the Receiver

Heard: September 5, 2012

On appeal from the order of Justice P.A. Cumming of the Superior
    Court of Justice, dated October 18, 2011.

Pepall
    J.A.:

1.
Background

[1]

The appellants appeal from the October 18, 2011 order of Cumming J. of
    the Superior Court of Justice dismissing their motion for an order setting
    aside a
Mareva
injunction and receivership order granted by Newbould
    J. of the Superior Court of Justice on August 22, 2011 and also dismissing
    their motion for an order striking out the respondents statement of claim.

(i)      Trial Judgment

[2]

The appellants include Christian and Terry Piersanti (the Piersantis).
    They have been engaged in complex litigation with the respondents for many
    years.

[3]

In separate prior proceedings, E. Macdonald J. of the Superior Court of
    Justice granted judgment against the Piersantis and others in favour of the
    respondents on September 3, 2010.  The judgment required the Piersantis to pay
    the respondents $20,000,000, ordered $2,500,000 to be paid into court to the
    credit of the respondents, and granted other assorted relief against the
    Piersantis and a number of the defendants, some of whom are appellants in this
    action (the Trial Judgment). In her reasons, she made findings of fraud,
    misappropriation, non-disclosure and other egregious conduct on the part of
    Christian Piersanti, and found Terry Piersanti to have misappropriated funds
    and her evidence to have been entirely unreliable.

(ii)      Stay of Trial Judgment

[4]

The Piersantis and the other defendants appealed the Trial Judgment.  As
    a result, pursuant to rule 63.01(1), the monetary provisions of the Trial Judgment
    were automatically stayed pending the disposition of the appeal.

[5]

On June 7, 2011, a single judge of this court ordered that the stay be
    lifted with respect to the $2,500,000 payment into court.

[6]

Subsequently, the respondents commenced a new action against the
    Piersantis and others, some of whom were defendants in the prior proceedings,
    and some of whom were not. In their new action, the respondents asserted a new
    cause of action alleging that the appellants fraudulently created corporate
    veils and sham mortgages to shield themselves from the respondents and other
    potential creditors. Among other things, the respondents rely on the
Fraudulent
    Conveyances Act
, R.S.O. 1990, c. F.29 and the
Assignments and
    Preferences Act
, R.S.O 1990, c. A.33.

(iii)     Impugned Order

[7]

On August 22, 2011, in the new action, Newbould J. granted a
Mareva
injunction
    and, relying on s. 101 of the
Courts of Justice Act
, R.S.O. 1990, c.
    43, a receivership order (the Impugned Order).

(iv)     Subsequent Developments

[8]

On September 12, 2011, this court reinstated the stay of the Trial
    Judgment relating to the $2,500,000 payment in light of the Impugned Order of
    Newbould J. and the imminence of the hearing of the appeal from the Trial
    Judgment.

[9]

By judgment dated May 9, 2012, this court allowed the appeal in part and
    varied the Trial Judgment. Among other things, the award of $20,000,000 against
    Terry Piersanti was set aside and the damages award against Christian Piersanti
    was reduced from $20,000,000 to $12,521,555.85.  As a result of the disposition
    of the appellants appeal, the automatic stay of the Trial Judgment ceased to
    have any effect.

(v)     Current Appeal

[10]

On
    this appeal, the appellants submit that Cumming J. erred by failing to hold
    that Newbould J. lacked jurisdiction to grant the Impugned Order because
    the Trial Judgment was stayed pending disposition of the appellants appeal and
    consequently, jurisdiction to grant injunctive relief and the appointment of a
    receiver rested with the Court of Appeal.

[11]

In
    particular, they rely on the provisions of rule 63.03(1), which provides that
    where an order is stayed, no steps may be taken under the order or for its
    enforcement, except by order of a judge of the court to which a motion for
    leave to appeal has been made or an appeal has been taken. By operation of this
    rule, the appellants say, only the Court of Appeal had jurisdiction to grant
    the relief sought before Newbould J.  The appellants also refer to s. 134(2) of
    the
Courts of Justice Act,
which addresses an appellate courts
    ability to make interim orders pending appeal or leave to appeal, and rule
    60.02(1)(d), which states that an order for the payment or recovery of money
    may be enforced by the appointment of a receiver. The appellants submit that
    the decision of
Bruno Appliance and Furniture Inc. v. Cassels Brock &
    Blackwell LLP,
2011 ONSC 1305, 17 C.P.C. (7th) 197, is applicable.

2.
Discussion

[12]

I
    would reject the appellants jurisdictional challenge for the following
    reasons.

[13]

During
    oral argument, counsel for the appellants properly acknowledged that this
    appeal turns on whether the motion before Newbould J. leading to the Impugned
    Order was a motion to enforce the Trial Judgment.  In my view, neither the
    receivership order nor the
Mareva
injunction granted by Newbould J. constituted
    steps under the Trial Judgment or for its enforcement within the meaning of rule
    63.03(1).

[14]

Firstly,
    the Impugned Order was not a step under the Trial Judgment.  The relief
    granted by Newbould J. was in a separate action with different parties and
    different causes of action which, as I have said, included reliance on the
Fraudulent
    Conveyances Act
and the
Assignments and Preferences Act
.

[15]

Secondly,
    the Impugned Order was protective and preservative in nature. Cumming J. made
    this observation in his endorsement. The only relief sought on the motion
    before Newbould J. related to the preservation of assets pending determination
    of the respondents new action.  The Impugned Order therefore did not amount to
    enforcement of the Trial Judgment. I agree with the respondents submission
    that the effect of the stay of the Trial Judgment was to suspend their
    enforcement rights.  However, their rights as judgment creditors remained
    intact pending appeal.

[16]

Furthermore,
    the appointment of a receiver and the granting of a
Mareva
injunction
    are not necessarily orders for enforcement in any event. Indeed, in this case,
    the receiver was appointed pursuant to s.101 of the
Courts of Justice Act
.

[17]

Finally,
    contrary to the appellants submission, this case differs from
Bruno
    Appliance.
In that case, the relief
    claimed was sought in the original action between
the same parties. 
    No new action was commenced and no new cause of action was asserted.  That is
    not this case.

[18]

I
    therefore conclude that Cumming J. did not err in refusing to set aside the Impugned
    Order of Newbould J. and in refusing to strike out the respondents statement
    of claim.  This conclusion is dispositive of this appeal.  Accordingly, there
    is no need to address the other arguments raised by counsel, including the
    respondents contention that the appellants attack on the Impugned Order is
    now moot.

3.
Disposition

[19]

For
    the reasons given, I would dismiss the appeal. I would award the respondents
    their costs of the appeal fixed, as agreed, in the amount of $6,000 inclusive
    of disbursements and applicable taxes.

Released: September 18, 2012  EAC

S.E.
    Pepall J.A.

I
    agree E.A. Cronk J.A.

I
    agree Gloria G. Epstein J.A.


