





CITATION:
Atlas Holdings & Investments
          Inc. v. Vratsidas, 2011 ONCA 574



DATE: 20110906



DOCKET: C53379 and C53385



COURT OF APPEAL FOR ONTARIO



Sharpe, Armstrong and Karakatsanis JJ.A.



BETWEEN



Atlas Holdings
          & Investments Inc. and Atlas
          Maintenance Systems (A) Inc.




Plaintiffs (Respondents)



and



George
          Vratsidas
, Athanasia Vratsidas, Maria Vratsidas, Shawna
          Vratsidas, Constantinos Vratsidas, 1715034 Ontario Inc. carrying on
          business as First Maintenance Solutions, Krzysztof
          Plewa, and
First Maintenance Solutions Ltd.




Defendants (Appellants)



Rod  Byrnes for the appellants



Glenn E. Cohen, for the respondents



Heard and released orally:
August 24, 2011



On appeal from the judgment of
          Justice Peter A. Cumming of the Superior Court of Justice dated January 24,
          2011.



ENDORSEMENT



[1]

The plaintiffs, respondents in these appeals, commenced this action on
    April 17, 2007 for the fraudulent transfer of assets of Canaclean Building
    Services Inc., a bankrupt corporation.

[2]

On November 29, 2010, Campbell J. of the Superior Court of Justice
    permitted an amendment to the Amended Amended Statement of Claim which added
    First Maintenance Solutions Ltd. (First Maintenance) as a party defendant and
    added a second round of claims for the fraudulent transfer of assets against
    George Vratsidas and the other defendants.  Such claims are alleged to have
    been transferred to First Maintenance.  Counsel for both First Maintenance and
    George Vratsidas appeared on the motion before Campbell J.

[3]

After the amendments were made First Maintenance and George Vratsidas
    moved under rule 21 to strike the added claims against them on the basis that
    the claims asserted were statute barred as outside the two year limitation
    period pursuant to s. 4 of the
Limitations Act
.  Cumming J. of the Superior
    Court dismissed the rule 21 motion.  First Maintenance and George Vratsidas
    appeal the order of Cumming J.

[4]

The main issue before Cumming J. was discoverability.  Essentially,
    counsel for First Maintenance and George Vratsidas argued that searches of the
    Ontario Business Information System in respect to the name First Maintenance
    Solutions, would have ultimately led the plaintiffs to the discovery of the
    second round of transfers in 2007.  Cumming J. rejected this submission.  He
    concluded in paragraphs 13, 18 and 19 of his reasons:

In my view, all that a search determining the
    cancellation by 1715034 of the registered business name First Maintenance
    Solutions would tell the party making the search was that the registered
    business name was cancelled as of February 28, 2008.  It would not in itself
    suggest a new corporation with that name.  Moreover, a search of the Defendant
    1715034 as of that date would indicate that 1715034 continued to be actively
    carrying on a janitorial services business.

....

I am not satisfied that it is plain, obvious and
    without doubt that the impugned claim cannot succeed.

Moreover, I view the motion to strike as being a
    collateral attack on the Order of Campbell J. to add FMSL as a party, being in
    effect an attempt to appeal or set aside that Order.

[5]

We agree with the conclusion of Cumming J.  The appeals are therefore
    dismissed.

[6]

Costs to the respondents are fixed at $7,468.38 including disbursements
    and applicable taxes.

Robert Sharpe J.A.

Robert P. Armstrong J.A.

Karakatsanis J.A.


