



COURT OF APPEAL FOR ONTARIO

CITATION: The Catalyst Capital Group Inc. v. Moyse, 2015 ONCA
    784

DATE: 20151117

DOCKET: M45378 M45387 (C60799)

Hoy A.C.J.O., MacFarland, and Lauwers JJ.A.

BETWEEN

The Catalyst Capital Group Inc.

Plaintiff (Appellant/
Responding Party
)

and

Brandon Moyse and West Face Capital Inc.

Defendants (Respondents/
Moving Party
)

Rocco Di Pucchio, for the appellant/responding party

Kristian Borg-Olivier and Denise Cooney, for the respondents/moving
    party Brandon Moyse

Andrew Carlson, for the respondents/moving party West
    Face Capital Inc.

Heard: November 5, 2015

Motion to quash an appeal from the judgment of Justice B.T.
    Glustein of the Superior Court of Justice, dated July 7, 2015, with reasons
    reported at 2015 ONSC 4388.

Lauwers J.A.:

[1]

The motion judge dismissed the motion of Catalyst Capital Group Inc. for
    a declaration that its former employee, Brandon Moyse, is in contempt of the July
    16, 2014 order of Firestone J. for failing to preserve certain electronic
    records relating to Catalyst.

[2]

The moving party, Mr. Moyse, seeks to quash Catalysts appeal on the
    basis that the judgment appealed from is interlocutory and therefore falls
    within the jurisdiction of the Divisional Court under s. 19 of the
Courts
    of Justice Act
, R.S.O. 1990, c. C.43
.
    For the reasons set out below, I would quash the appeal.

FACTUAL BACKGROUND

[3]

Mr. Moyse is a former employee of Catalyst. He accepted employment with
    a competitor of Catalyst. Catalyst was concerned that he had or would impart its
    confidential information to his new employer.

[4]

Eventually, on Catalysts motion, Firestone J. issued an interim consent
    order for injunctive relief, dated July 16, 2014. The court ordered that Moyse
    and [his new employer], and its employees, directors and officers, shall
    preserve and maintain all records in their possession, power or control,
    whether electronic or otherwise, that relate to Catalyst. Paragraph 5 of this
    order provided:

THIS COURT FURTHER ORDERS that Moyse shall turn over any
    personal computer and electronic devices owned by him or within his power of
    control (the Devices) to his counsel, Grosman, Grosman and Gale LLP, (GGG)
    for the taking of a forensic image of the data stored on the Devices (the Forensic
    Image), to be conducted by a professional firm as agreed to between the
    parties.

[5]

Catalyst brought a motion for a declaration that Mr. Moyse was in
    contempt of the consent order.


MOTION JUDGE FOUND NO CONTEMPT

[6]

The motion judges reasons set out a lengthy review of the evidence. He
    was unable to find beyond a reasonable doubt that Catalyst had established
    that Mr. Moyse was in contempt. His specific findings are relevant to
    Catalysts argument on this motion to quash.

[7]

With respect to Mr. Moyses actions in deleting the personal browsing
    history from his computer, the motion judge found, at para. 69: there is no
    evidence to establish, beyond a reasonable doubt, that Moyse deleted relevant
    information as a result of deleting his personal browsing history and then
    running a registry cleaner to delete traces of the internet searches.

[8]

With respect to Mr. Moyses conduct in buying and using software to
    scrub files from his personal computer before delivering it, the motion judge
    stated, at para. 86:

I cannot find that the above evidence supports a finding,
    beyond reasonable doubt, that Moyse breached the Consent Order by scrubbing
    relevant files with the Secure Delete program. There still remained 833
    relevant documents on his computer, as well as the evidence on his computer of
    the ASO program, the Secure Delete folder, and the purchase receipts. The
    evidence is at least as consistent with Moyse's evidence that he loaded the ASO
    software and investigated the products it offered and what the use would
    entail, but he did not run the Secure Delete program.


ANALYSIS

[9]

Mr. Moyse argues that an order dismissing a contempt motion is
    interlocutory for the purpose of an appeal, and therefore lies to the Divisional
    Court, with leave, under s. 19(1)(b) of the
Courts of Justice Act
.  He
    relies on this courts brief endorsement in
Simmonds v. Simmonds,
2013
    ONCA 479, which was an appeal from an order of a motion judge dismissing a motion
    for a finding of contempt against the respondents spouse in a family dispute.
    There, the motion judge found that the respondent had complied with the
    disclosure order in question. In
Simmonds
,
this court accepted
    the respondents argument that while an order finding contempt is final, the
    dismissal of the motion for contempt was interlocutory: the motion judges
    finding was not binding on the trial judge. The court rejected the conclusion
    to the contrary found in
Pimiskern v. Brophey
,
[2013] O.J. No. 505 (S.C.).

[10]

Catalyst
    argues that the ruling precedent is this courts decision in
Sabourin and
    Sun Group of Companies v. Laiken
,
2013 ONCA 530, in which the court heard
    an appeal from a decision dismissing a contempt motion. That case was about the
    possible breach of a
Mareva
injunction. I observe that the court did
    not advert to the interlocutory/final distinction or to the question of
    jurisdiction at all. The issue appears not to have been argued.

[11]

In
    fairness to the parties, this courts decisions on the final/interlocutory
    distinction have not been models of clarity. Much ink has been spilled, and
    court and counsel time wasted in exploring the nuances. But the root principle that
    all can and do accept was expressed by Middleton J.A in
Hendrickson v.
    Kallio
, [1932] O.R. 675:

The interlocutory order from which there is no appeal is an
    order which does not determine the real matter in dispute between the parties
    -- the very subject matter of the litigation, but only some matter collateral.
    It may be final in the sense that it determines the very question raised by the
    applications, but it is interlocutory if the merits of the case remain to be
    determined.

[12]

This
    important case is one to which this court frequently returns. See, for example,
Waldman v. Thomson Reuters Canada Ltd.
, 2015 ONCA 53, MacFarland J.A.
    at para. 22. On the

Hendrickson v. Kallio
test, there can be no
    doubt that the dismissal of the contempt motion is interlocutory. The merits of
    the case remain to be determined.

[13]

But
    Catalyst drills deeper and argues that in this case the outcome of the motion
    is effectively final in a significant dimension. It submits that the important
    point for the court to keep in mind is that it would not be open to a party who
    was unsuccessful in a contempt motion to revisit the contempt motion at trial. 
    Counsel argues that the motion judges decision that Mr. Moyses conduct did
    not contravene the order is
res judicata,
and Mr. Moyses conduct in
    deleting the browser history, for example, cant be re-litigated even in
    cross-examination. It is therefore final in the sense contemplated by the
Courts
    of Justice Act
.

[14]

I
    disagree. The motion judges findings are clear. He simply concluded that
    Catalyst had not proven, beyond a reasonable doubt, that Mr. Moyse
    breached Firestone J.s order. There is nothing in the motion judges decision
    that would prevent Catalyst from exploring, in Mr. Moyses cross-examination at
    discovery or at trial, what he did with his computer, when he did it, why he
    did it, who assisted him (if anyone), how he did it and for what purpose or
    purposes. While the finding that Mr. Moyse was not in contempt may not itself be
    re-litigated, barring some new revelation, all of the factual issues between
    the parties may be fully and exhaustively explored at any discovery and at the
    trial.

[15]

In
    the circumstances of this appeal, the principle in
Simmonds
applies.
    The order dismissing the contempt motion against Mr. Moyse is interlocutory,
    and therefore appealable to the Divisional Court, with leave, under s. 19(1)(b)
    of the
Courts of Justice Act
.

[16]

I
    would quash the appeal without prejudice to Catalysts right to seek leave to
    appeal to the Divisional Court. I would award Mr. Moyse costs fixed in the agreed
    amount of $5,000, all-inclusive.

Released:  November 17, 2015 AH             P. Lauwers J.A.

I
    agree Alexandra Hoy A.C.J.O.

I
    agree J. MacFarland J.A.


