



COURT OF APPEAL FOR ONTARIO

CITATION: Midland Resources Holding Limited v. Shtaif, 2018 ONCA 743

DATE: 20180911

DOCKET: M49293/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, acting in person

Symon Zucker, Kenneth Prehogan and
    Kim A. Mullin, for the respondent Midland Resources Holding Limited

Heard: In writing

REASONS FOR
    DECISION

[1]

By reasons released January 15, 2018 this court dismissed the
    motion by Michael Shtaif and Eugene Bokserman seeking a reconsideration of the
    April 20, 2017 decision of this court (the Appeal Order) dismissing Boksermans
    appeal of the U.S. $1.5 million judgment against him and allowing, in part, the
    appeal by Shtaif, reducing the judgment against him to U.S. $8.27
    million:
Midland Resources Holding Limited v. Shtaif
, 2017 ONCA
    320, 135 O.R. (3d) 481.

[2]

Shtaif and Bokserman now bring a second motion for reconsideration.
    We have considered: their motion materials filed in June 2018; their reply
    motion materials filed at the end of July 2018; the missing exhibit filed at
    the end of August, in response to the request of the panel; and the further
    materials filed on September 5, 2018.

[3]

We dismiss their motion for four reasons.

[4]

First, although the moving parties style their motion as one seeking to
    set aside or vary the Appeal Order on the grounds of fraud, mistake and/or the
    existence of significant new material facts, the affidavit of Bokserman filed
    in support of the second motion to reconsider for the most part simply repeats
    the arguments they made on the appeal about errors made by the trial judge,
    including the argument that Midland Resources Holding Limited (Midland) did
    not suffer any damages. Those arguments were considered and dealt with by this
    court in its reasons for the appeal and the first motion to reconsider. In
    recycling arguments already considered and rejected by this court, the moving
    parties are abusing the process of this court:
Hoang v. Mann Engineering
    Ltd.
, 2015 ONCA 838, at paras. 13-15.

[5]

Second, the moving parties contend this court misunderstood the basis
    for their first motion to reconsider. They argue they brought their motion
    under r. 59.06(1) of the
Rules of Civil Procedure
 the accidental
    slip or omission rule  not r. 59.06(2)(d), which enables a party to seek to
    obtain other relief than that originally awarded.

[6]

The moving parties notice of motion dated August 22, 2017 for their
    first motion to reconsider clearly stated, in para. 25, that they were relying
    on r. 59.06(2)(d). In their factum on the first motion to reconsider, the
    moving parties also advanced an argument under r. 59.06(1). However, as this
    court stated in para. 9 of its reasons on that motion, the moving parties 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. Rule 59.06(1) clearly had no application in those
    circumstances.

[7]

Third, Bokserman deposes that in February 2018 the moving parties
    learned of litigation between the principals of Midland, Alex Shnaider and Eduard
    Shyfrin, in the courts of Guernsey that had resulted in a February 14, 2017
    order of the Royal Court of Guernsey, Ordinary Division, winding-up Midland
    (the Winding-Up Order). The order was affirmed on appeal on July 20, 2017.
    The moving parties contend that as a result of the Winding-Up Order, Midland
    had no standing to proceed with the appeal.

[8]

There is no merit in this submission. Midland obtained judgment against
    Bokserman and Shtaif as a result of the February 19, 2014 trial decision. That
    judgment was affirmed on appeal, although the amount of the judgment against
    Shtaif was reduced.

[9]

At the time the appeal was argued in October 2016, no winding-up order
    had been made in respect of Midland. Rule 61.13.1, which applies only to the
    transfer or transmission of an
appellants
interest or liability while
    an appeal is pending, has no application in the circumstances of this appeal.
    As well, the moving parties have filed no evidence that indicates the
    subsequent Winding-Up Order restricts the ability of the company or its joint liquidators
    to collect on its judgment against Bokserman and Shtaif. On the contrary, the
    Winding-Up Order specifically contemplates that Midlands liquidators will
    attempt to recover any assets belonging to or due to Midland. One such asset is
    the judgment against the moving parties.

[10]

Finally,
    Boksermans August 29, 2018 affidavit attached two articles published in
    certain Russian media reporting that criminal charges for economic offences recently
    were laid against Valentin Vinogradov and Peter Ganus, two witnesses who were
    called by Midland at the trial of this action. Bokserman suggests that since
    charges have been brought against Vinogradov and Ganus, their evidence given at
    trial cannot stand. The subject-matter of the charges reported in the Russian
    media does not involve the subject-matter of the dispute adjudicated at the
    trial of this action. It has no relevance to the moving parties motion under
    r. 59.06.

[11]

Accordingly,
    the moving parties motion for reconsideration is dismissed.

[12]

In
    its July 6, 2018 submissions letter, Midlands counsel did not seek costs of
    the motion. Accordingly, we will not order any.

[13]

Midland
    does seek an order prohibiting the moving parties from making further motions
    in this proceeding without leave. Midland notes that the moving parties have
    not satisfied the $5,000 cost award made in the first motion to reconsider and submits
    that the motion by the moving parties was frivolous, vexatious and an abuse of
    the process of the court: r. 2.1.01(1).

[14]

We
    conclude such an order is appropriate in the circumstances. The moving parties
    essentially sought to reargue their appeal on their first motion to reconsider.
    That motion having been dismissed after a written hearing  a procedure
    commonly used by this court on r. 59.06 motions  the moving parties have
    renewed their effort to re-argue the appeal. That is not a proper use of r.
    59.06; it is an abuse of the process of the court. Consequently, we further
    order that Shtaif and Bokserman cannot initiate any further proceeding in this
    court unless they: (i) pay Midland the outstanding costs of the appeal and the
    first motion to reconsider; and (ii) obtain the leave of this panel to bring
    the proceeding.

[15]

It
    should be obvious to the moving parties that any further recourse in respect of
    the judgment against them lies to the Supreme Court of Canada, not to this
    court:
Hoang
, at para. 7.

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


