



COURT OF APPEAL FOR ONTARIO

CITATION: Midland Resources Holding Limited v. Shtaif, 2018
    ONCA 33

DATE: 20180115

DOCKET: M48334 (C58536)

Doherty, Brown and Roberts JJ.A.

BETWEEN

Midland Resources Holding Limited, Alex Shnaider and Eduard
    Shyfrin

Plaintiffs(Respondents)

and

Michael Shtaif
, The Estate of Anthony
    Groag,
Gregory Roberts
,
Eugene Bokserman
, Ilya Entin, Irwin Boock
    a.k.a. Irwin Krakowsky and Stanton De Freitas

Defendants (Appellants)

AND BETWEEN

Michael Shtaif,
Gregory
    Roberts
, Eugene Bokserman, and Ilya Entin

Plaintiffs by
    counterclaim (Appellant by counterclaim)

and

Midland Resources
    Holding Limited, Alex Shnaider and Eduard Shyfrin

Defendants by
    counterclaim (Respondents by counterclaim)

Michael Shtaif and Eugene Bokserman, in person

Symon Zucker, Kenneth Prehogan, Kim A. Mullin
    and Scott McGrath, for the respondents Midland Resources Holding Limited, Alex
    Shnaider and Eduard Shyfrin

Heard: In writing

REASONS FOR DECISION


[1]

By
reasons released April 20,
    2017 this court (i) dismissed the appeal by Eugene Bokserman of the US $1.5
    million judgment against him and (ii) allowed, in part, the appeals by Michael
    Shtaif and Gregory Roberts, reducing the judgments against them to US $8.27
    million  representing the damages the trial judge held were suffered by
    Midland Resources Holding Limited up until June 20, 2006  together with small
    amounts for post-June 20, 2006 damages:
Midland Resources Holding
    Limited v. Shtaif
, 2017 ONCA
    320, 135 O.R. (3d) 481.

[2]

Robertss application for leave to appeal to the Supreme Court of Canada
    was dismissed on December 21, 2017:
Gregory Roberts v. Midland Resources
    Holding Limited
, leave to appeal to SCC refused, 37653 (December 21,
    2017).

[3]

The appellants, Shtaif and
    Bokserman, were represented by counsel at the hearing of the appeal. They are
    now representing themselves.

[4]

Shtaif and Bokserman move under rule 59.06(2)(d) of the
Rules of
    Civil Procedure
for a reconsideration by this court of its decision to
    maintain awards of damages against them. Rule 59.06(2)(d) states: A party who
    seeks to  (d) obtain other relief than that originally awarded, may make a
    motion in the proceeding for the relief claimed.

[5]

The appellants do not seek a reconsideration on the basis of any fresh
    evidence.

[6]

Instead, they contend the trial judge miscalculated Midlands damages
    as at June 20, 2006 by only considering the accruing loss at that date, without
    considering the accruing gain which, they contend, flowed from the closing of
    the Reef Energy transaction after that date. They argue it was not fair or just
    for this court to rely on the trial judges miscalculation of damages in
    affirming the judgment in part.

[7]

Midland submits the appellants motion is not a proper use of r. 59.06(2)(d)
    and constitutes nothing more than an attempt to reargue an issue that was
    decided against the moving parties at trial and on appeal.

[8]

We agree the appellants motion must fail.

[9]

First, Shtaif and Bokserman are not simply pointing out a mathematical
    oversight in the trial judges damage calculation, as they contend; they are
    advancing a theory of damages not argued on the appeal. In their appeal factum,
    the appellants identified seven grounds of appeal, none of which involved a
    claim that the trial judge miscalculated Midlands damages as of June 20, 2006
    by failing to take into account any post-June 20, 2006 gain. Nor did their
    counsel raise the argument at the hearing.

[10]

Second,
    although the appellants did submit the trial judge erred in finding Midland
    acted reasonably to mitigate its damages contending, in part, that Midland did
    not act reasonably in its 2010 sale of Reef Energy, this court did not give
    effect to that ground of appeal.

[11]

Consequently,
    in those circumstances, r. 59.06(2)(d) offers no basis for this court to
    reconsider its decision.

[12]

The
    motion is dismissed. Shtaif and Bokserman shall pay Midland its costs of this
    motion fixed in the amount of $5,000, inclusive of disbursements and all
    applicable taxes.


Doherty J.A.
David Brown J.A.
L.B. Roberts J.A.


