



COURT OF APPEAL FOR ONTARIO

CITATION:
Alfano Estate v. Piersanti, 2012 ONCA 749

DATE: 20121105

DOCKET: M41757 C52738

Sharpe, Rouleau and Hoy 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

Respondents (
Moving Parties
)

and

Christian Piersanti, Piersanti and Co. Barristers
    and Solicitors, Gold Financial Corp.,
Osler Paving Ltd., 758626 Ontario
    Limited now known as Diligent Financial Corporation,
1281111 Ontario
    Limited, 1269906 Ontario Limited and 1281632 Ontario Limited
, 1212700
    Ontario Limited,
Terry Piersanti, also known as Terry Scatcherd, 1281038
    Ontario Limited and 3964400 Canada Inc.

Appellants
(Responding Parties)

AND BETWEEN

Christian Piersanti
,
    Diligent Financial Corporation and 1212700 Ontario Limited

Appellant

and

Bertina Alfano, Italo Alfano, Ultimino Alfano, Joe Alfano,
    815748 Ontario  Limited, Ontario Power Contracting Limited, Puslinch
    Investments Inc.,  1026864
    Ontario Limited

Respondents

AND BETWEEN

Gold
    Financial Corp.

Appellant

and

Puslinch
    Inv. Inc., Invar Building Corporation, Invar Aggregates Limited, 1212700
    Ontario Limited, 1026864 Ontario Limited, Peter Lamanna, 2016411 Ontario
    Limited, Steven Bellissimo Barrister and Solicitor, Ontario Power Contracting
    Limited, 2012746 Ontario Limited, 2026474 Ontario Limited, 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

Respondents

James F. Diamond, for the moving parties (respondents)

V.R. Morrison and R.S. Chapman, for the responding
    parties (appellants)

Heard: October 29, 2012

Motion to review and set aside the order of Justice David Watt
    of the Court of Appeal, dated August 27, 2012.

ENDORSEMENT

[1]

The respondents move to review and set aside the order of Watt J.A.,
    dated August 27, 2012, refusing to grant a stay of proceedings of the judgment
    of this court dated May 9, 2012 (2012 ONCA 297). The stay is sought pursuant to
    the
Supreme Court Act
,

R.S.C. 1985 c. S-26, s. 65.1(1), pending the determination of the
    respondents application for leave to appeal to the Supreme Court of Canada.

[2]

We conclude that no stay should be granted, although for different
    reasons than those given by Watt J.A.

[3]

The May 9, 2012 judgment of this court set aside the trial judgment
    against the appellant Terry Piersanti and reduced the damages awarded by the
    trial judge from $20 million to approximately $14 million.

[4]

In a separate Superior Court proceeding, after the trial judgment but
    during the period when the trial judgment was stayed pending the appeal to this
    court, the appellants obtained a
Mareva
injunction and the appointment
    of a receiver against the respondents (the receivership order).

[5]

The appellants appealed from an order continuing the receivership order,
    arguing that the Superior Court had no jurisdiction to make the receivership
    order pending the appeal to this court and that any such order fell within the
    jurisdiction of this court. This court dismissed that appeal and held that the
    receivership order was made in a separate proceeding alleging a separate cause
    of action and did not constitute a step taken under the trial judgment that was
    the subject of the appeal decided by this court on May 9, 2012: 2012 ONCA 612.

[6]

It is common ground that the receivership order remains in effect and
    that if not altered or discharged by the Superior Court, it will afford the
    respondents the protection they seek pending the determination of their leave
    to appeal application to the Supreme Court of Canada.

[7]

In response to questions from the bench, counsel for the respondents
    confirmed that the respondents seek a stay of this courts May 9, 2012 judgment
    in order to preclude the appellants from moving to alter or discharge the
    receivership order on the basis of what this court decided in the May 9, 2012
    judgment. Counsel for the appellants indicated that his clients may seek to vary
    the receivership order or discharge it by paying into court the amount of the
    damages as reduced by this court before the determination of the application
    for leave to appeal to the Supreme Court of Canada.

[8]

It is our view that the relief sought by the respondents is not a
    request that proceedings be stayed with respect to the judgment from which
    leave to appeal is being sought within the meaning of s. 65.1(1). Simply put,
    there is no proceeding with respect to this courts judgment of May 9, 2012
    that the respondents ask be stayed. Their request relates to the receivership
    order and, as this court has already held, the receivership order was properly made
    in a distinct proceeding and did not constitute a step under the trial judgment.
    There is no appeal now pending before us in relation to that proceeding, and
    any variation or discharge of that order falls within the jurisdiction of the
    Superior Court. For that reason, we refuse to interfere with the order of Watt
    J.A. dismissing the request for a stay.

[9]

We hasten to add, however, that should the appellants seek to vary or
    discharge the receivership order in the Superior Court, neither this courts
    judgment of May 9, 2012 nor our refusal to grant a stay would
prevent the Superior Court from fully and fairly considering whether it would
    be in the interests of justice to continue the receivership order pending the Supreme
    Court of Canadas decision on the respondents leave to appeal application.

[10]

Accordingly
    the motion to set aside the order of August 27, 2012 refusing the stay is
    dismissed. The appellants as responding parties to this motion are entitled to
    their costs which we fix at $5,000 inclusive of disbursements and taxes.

Robert J. Sharpe J.A.

Paul
    Rouleau J.A.

Alexandra
    Hoy J.A.


