



COURT OF APPEAL FOR ONTARIO

CITATION: 2027707 Ontario Ltd. v. Richard Burnside &
    Associates Ltd., 2016 ONCA 819

DATE: 20161103

DOCKET: C61772

Rouleau, van Rensburg and Miller JJ.A.

BETWEEN

2027707 Ontario Ltd.

Plaintiff/Appellant

and

Richard Burnside &
    Associates Ltd.
and John Schnurr

Defendants/
Respondent

Harrison Pensa LLP and Harry Van Bavel

Third Parties/Respondents

Peter B. Cozzi, for the appellant

Matthew Urback, for the respondent Richard Burnside
    & Associates Ltd.

Sean Dewart, for the third parties/respondents Harrison
    Pensa LLP and Harry Van Bavel

Heard and released orally: October 28, 2016

On appeal from the order of Justice Andra Pollak of the Superior
    Court of Justice, dated January 25, 2016.

ENDORSEMENT

[1]

The appellant appeals from an order staying an action as against a court
    appointed receiver and refusing leave to sue the receiver.

[2]

The appellant puts forward two bases for the appeal. First, it argues
    that the motion judge erred in failing to find that the receiver had already
    consented to the action being commenced against it. Second, it argues that the
    motion judge erred in finding that the appellant did not meet the test for
    granting leave in such matters.

[3]

We reject both these submissions. The receivers consent on which the
    appellant seeks to rely was given before the appellant was even aware of the
    claim being made in the stayed action. We do not agree with the appellants
    submission that this consent is broad enough to encompass the claim for damages
    resulting from the alleged wrongdoing that the appellant now wishes to pursue. The
    consent related only to a list of claims asserted against the receiver in
    matrimonial proceedings (where the receiver also asserted counterclaims). Even if
    read liberally, the consent could not include the proposed claim as it is one
    for conversion arising from an agreement of purchase and sale that was entered
    into after the execution of the consent.

[4]

We also see no basis to interfere with the motion judges refusal to
    grant leave to sue the receiver. This was a discretionary decision. The motion
    judge found that there was no evidence tendered that the appellant suffered
    damages and, having assessed the record before her, she declined to draw such an
    inference.

[5]

We see no error in her conclusion. It was reasonably based on the
    evidence or lack of evidence placed before her on the motion.

[6]

For these reasons, the appeal is dismissed.

[7]

Costs to the third parties/respondents fixed at $8,000 and to the
    respondent Richard Burnside & Associates fixed at $4,000, both inclusive of
    disbursements and applicable taxes.

Paul Rouleau J.A.

K. van Rensburg J.A.

B.W. Miller J.A.


