



COURT OF APPEAL FOR ONTARIO

CITATION: Kaptor Financial Inc. v. SF Partnership, LLP, 2016
    ONCA 671

DATE: 20160909

DOCKET: C61642

Feldman, Simmons and Lauwers JJ.A.

BETWEEN

Kaptor Financial Inc., 2025610 Ontario Limited
    and Insignia Trading Inc.

Plaintiffs

and

SF Partnership, LLP, Shore Newman & Rose LLP,
Eric Inspektor
, Lynette Inspektor, Rick Arnone,
    Jack Barkin, Alan Birnbaum, Momir Dejanovic, Harvey Goldberg, Klara Romm,
    Barbara Shuster, Darren Inspektor and Russel Inspektor

Defendants (
Appellant
)

and

Eric Grossman, Steven Uster and the Section 38
    Litigation Committee

Respondents

Eric Inspektor, appellant acting in person

Jeffrey Larry, for the respondents Eric Grossman, Steven
    Uster and the Section 38 Litigation Committee

Heard and released orally: August 25, 2016

On appeal from the judgment of Justice Michael A. Penny
    of the Superior Court of Justice, dated December 3, 2015.

ENDORSEMENT

[1]

The appellant sought leave under s. 215 of the
Bankruptcy and Insolvency
    Act
, R.S.C. 1985, c. B-3,
to
    sue the litigation committee for defamation in respect of a report it sent out
    to the s. 38 litigation participants.

[2]

Penny J. dismissed the motion for leave on two bases: (1) the words used
    do not have a defamatory meaning, and (2) qualified privilege.

[3]

The appellant seeks to introduce fresh evidence on the appeal that the
    report was sent to three people who were not s. 38 participants and to that
    extent, not covered by qualified privilege.

[4]

In our view, the fresh evidence application and the appeal must be
    dismissed. The motion judge made no error in his determination that the words
    complained of are not defamatory in the context of the report. Furthermore, the
    appellant had no reputation to protect in the eyes of the recipients of the
    report.

[5]

We need not address whether the defence of qualified privilege was
    undermined by sending the report to three investors who opted out of the
    litigation under s. 38. However, we note that there was an evidentiary onus on
    the leave applicant to show that there are facts to support his claim. See
GMAC
    Commercial Credit Corporation  Canada v. T.C.T. Logistics Inc
., [2006] 2
    S.C.R. 123, 2006 SCC 35, at para. 57.

[6]

The appeal is dismissed with costs in the agreed amount of $11,000
    inclusive of disbursements and applicable taxes.

K. Feldman
    J.A.

Janet Simmons
    J.A.

P. Lauwers J.A.


