



COURT OF APPEAL FOR ONTARIO

CITATION: Akagi v. Synergy Group (2000) Inc., 2014 ONCA 731

DATE: 20141022

DOCKET: M43932 and M43945 (C57582)

Laskin, Gillese and Pardu JJ.A.

BETWEEN

Trent Akagi

Applicant (Respondent)

and

Synergy Group (2000) Inc. (aka Synergy Group
Inc., Synergy Group 2000 Inc., The Synergy Group 2000 Inc., The Synergy Group,
Inc. (2000), The Synergy Group Incorporated, The Synergy Group 2000
Incorporated) and Integrated Business Concepts Inc.

Respondents (Appellants)

William C. McDowell and Jamie J.W. Spotswood for the
moving parties/appellants Vincent Villanti and Integrated Business Concepts
Inc.

Jonathan C. Lisus and James Renihan, for the moving
parties/appellants RV Inc. and Student Housing Canada Inc.

Shannon M. Puddister, for the responding party Ravendra
Chaudhary

Terry Corsianos, for the responding party Trent Akagi

Jim Patterson and Ruth Promislow, for the
Court-Appointed Receiver J.P. Graci & Associates Ltd.

Heard and released orally: October 16, 2014

On motion to review the order of Justice Michael H.
Tulloch of this court dated June 10, 2014, on the appeal from the order of
Justice Colin L. Campbell of the Superior Court of Justice, dated August 2,
2013.

ENDORSEMENT



[1]

On April 4, 2014, the appeal in this matter was dismissed for delay (the
Registrars Order).  The appellants moved to set aside the Registrars Order
and extend the time to perfect.

[2]

By order dated June 10, 2014, Tulloch J.A. dismissed the motion (the
Motion Decision), primarily because the reason for delay had not been
satisfactorily explained.

[3]

The appellants now move to have the Motion Decision reviewed.  Both sets
of appellants are represented by new counsel.

[4]

The record before the court is considerably enhanced from that which was
before Tulloch J.A.  The two most notable differences relate to the explanation
offered for the delay and the merits of the appeal.

[5]

The fresh evidence indicates that it was the conduct of counsel who
appeared on the motion that led to its dismissal.  Counsel on the motion did
not put forward evidence of their clients intentions to pursue the appeal and
their instructions to do so as quickly as possible.  Nor did they give Tulloch
J.A. the full explanation for the delay, which included unsuccessful efforts to
consolidate various orders into a single record and to co-ordinate the
preparation of appeal materials with lawyers for other parties.   Instead,
counsel on the motion proffered a double hearsay affidavit, lacking specificity
on key points, from a lawyer with no involvement in the case.

[6]

As this court has noted on many occasions, counsels inadvertence should
not prejudice a clients cause.  See, for example,
Marché DAlimentation
Denis Theriault Ltée. v. Giant Tiger Stores Limited
, 2007 ONCA 695, 286
D.L.R. (4
th
) 487, at para. 28.

[7]

In respect of the merits of the appeal, Tulloch J.A. was not directed
to, among other things, a jurisdictional issue relating to the scope of the
Receivers authority and, in the circumstances of this case, his ability to
obtain a certificate of pending litigation.

[8]

The overriding consideration on a motion to set aside a dismissal order
is the justice of the case, which entails a consideration of the merits of the
appeal.  In our view, the appeal raises serious issues.  That consideration,
after having due regard to the other relevant factors including the now
adequately explained delay, warrants setting aside the Registrars Order.

DISPOSITION

[9]

Accordingly, an order shall go:

1.

Setting aside the Registrars Order, the Motion Decision and its
associated costs order dated September 12, 2014;

2.

Extending the time to file notices of appeal to October 23, 2014, in
respect of the orders of Campbell J. dated June 14, 24 and 28, 2013, and September
16, 2013, (together with the order dated August 2, 2014, the Receivership
Orders); and

3.

Directing an expedited and consolidated appeal of the Receivership
Orders.

[10]

On
consent, an order shall also go requiring the appellants to perfect their
appeals by October 31, 2014, and the respondents to file their materials by
November 21, 2014.

[11]

Each
of the two groups of appellants is entitled to costs fixed in the amount of
$15,000, all inclusive, payable by the Receiver.  There shall be no order as to
costs of the motion below.

John Laskin J.A.

E.E. Gillese J.A.

G. Pardu J.A.


