court of appeal for ontario - academicfreedom.ca

More documents

Recommendations

Info

SUPERIOR COURT OF JUSTICE ONTARIO BETWEEN: HILLTOP GROUP LIMITED Court File No. 03-CV-245753 CM1 Date: 20031209 AND 806046 ONTARIO LIMITED, FRANK KATANA, and THE KATANA FAMILY TRUST, M.A.K. SHOES INC. and KAPER HOLDINGS LTD. (Defendants) BEFORE: M.A. SANDERSON J.. COUNSEL: Robert Malen, for the Plaintiff Louie Sopov, for the Moving Party Frank Katana E N D O R S E M E N T [1] The Defendant Frank Katana (“Katana”) brings this motion for an order dismissing or staying the action brought by Hilltop Group Limited (“Hilltop”) as against Katana or striking all references to Katana in its Statement of Claim. INTRODUCTION [2] Katana bases his request for relief on the doctrines of res judicata and abuse of process. His counsel outlined the history of the litigation between the parties that he submitted was relevant to his submissions. The First Action [3] In April 21, 1995, Mackenzie J. dismissed an action brought by Katana against Hilltop and ordered inter alia Hilltop’s damages against Katana as a result of Katana’s wrongful registration of a Certificate of Pending Litigation (“CPL”) against the Wilson Property to be determined at a Reference. On June 3, 1996, Mackenzie J. quantified the damages owing by Katana to Hilltop at $2,105,572.76 plus interest and costs. [4] Katana unsuccessfully appealed to the Court of Appeal. The Second Action [5] After April 1995, but before the Reference was held, Katana transferred his interest in 7 Seaburn Place, Scarborough (“Seaburn”) to his wife alone, for no consideration. She then mortgaged it to the Grudens, Katana’s sister and brother-in law. 2003 CanLII 45839 (ON SC)
[6] When Hilltop learned of the transfer of Seaburn, it commenced an action to set it aside as a fraudulent conveyance. [7] Shortly after Mackenzie J. specified that Katana owed Hilltop more than two million dollars, Katana deposed in an affidavit sworn July 17, 1996 that he had no substantial assets and was only receiving a small and irregular salary from one of his businesses. [8] During the trial before Mackenzie J., Katana had maintained he had a substantial interest in several companies, to which referred as the Valleywood Companies (“Valleywood” or “the Valleywood Companies”). In July 1996 he was claiming that he had no such interest. Hilltop claimed Katana had fraudulently conveyed Seaburn to prevent Hilltop from collecting upon its judgment against Katana. [9] On a motion in the Second Action, Boland J. made an Order adding Valleywood, the Katana Family Trust, MAK Shoes Inc., Snellcrest Gardens Inc., Mellow Gardens Development Inc., and 797820 Ontario Limited to be added as party defendants and allowed a Certificate of Pending Litigation to be registered against properties in the name of Valleywood, which remain unsold. [10] In granting that Order, Boland J. specifically addressed the issues of prejudice and balance of convenience: All interested parties...were served with notice of this motion. The motion was heard over a period of three days and all interested persons filing factums were heard at length. The plaintiffs have a judgment for damages against the defendant Frank Katana in the sum of approximately $4,000,000. That judgment was obtained in Action No. 92-CQ-12373....The Wilson lands were in the process of being sold to Hilltop. Frank Katana registered a certificate of pending litigation against the Wilson lands. His action for specific performance was heard over a six week period and was dismissed. The trial judge awarded damages on the counterclaim to Hilltop and the Wilsons in the sum of approximately $4,000,000. The damages arose out of the wrongful registration [by Katana] of the certificate of pending litigation. The appeals of Katana and his numbered company were both dismissed. Shortly thereafter Hilltop and the Wilsons commenced this fraudulent conveyance action. The moving parties [Hilltop] have raised a strong prima facie case. Having regard to the history of the previous litigation, the finding of fact against Katana, and the evidence on this motion, including the weakness, contradictions and inconsistencies in the evidence of Katana, I am satisfied that there will be irreparable harm if the interests of the moving parties are not preserved pending trial. Although security before judgment is unusual, I am satisfied that it is necessary in this case and that the balance of convenience requires the granting of the relief sought...Having reviewed all the material before me and considered the submissions of counsel, in my view it is in the interest of justice that all persons who have an interest in this matter be added as parties to this action.... [11] During the course of the argument of the motion before Boland J., counsel for Katana and the Katana Family Trust attempted to rely on res judicata and abuse of process. Boland J. held there was no persuasive evidence to support those submissions. [12] Hilltop’s allegations in its Statement of Claim in the Second Action included the following: (a) “…the defendant Frank Katana carries on business as a land developer through several companies in which he has an interest, either direct or indirect. The said defendant’s major development is known as Valleywood (the trade name of the 2 2003 CanLII 45839 (ON SC)
Page 1 and 2: BETWEEN: Introduction ONTARIO SUPER
Page 3 and 4: Costs should not be awarded to the
Page 5 and 6: Order requested 22. The Defendant r
Page 7 and 8: TAB 1
Page 9 and 10: ancourtlibelcasecomment http://civi
Page 11 and 12: - .1 ''l APPEARANCES: on Mr. R. Dea
Page 13 and 14: pornt. 68. Submissions - Mr L-/CClI
Page 15 and 16: 10 rul ,tl '"1 I .^l t 93. Submissr
Page 17 and 18: 136. Reasons for Decision - Master
Page 19: TAB 3
Page 23 and 24: [19] On June 20, 2002 Greer J. gave
Page 25 and 26: [201] If I am wrong in my analysis
Page 27 and 28: $2,366,350.00 mortgage against the
Page 29 and 30: the earlier action; (c) the cause o
Page 31 and 32: TAB 4
Page 33 and 34: (i) any other matter relevant to th
Page 35 and 36: COSTS ON SETTLEMENT 57.04 Where a p
Page 39 and 40: - 2 - Indian Band, and David Anthon
Page 41 and 42: - 21 - 20 In the usual case, costs
Page 43 and 44: - 23 - 24 Similarly, in Skidmore v.
Page 45 and 46: - 25 - treated as an unlimited sour
Page 49 and 50: May. 9. 2012 l:2lPl\4 No. 1695 P. 9
Page 51 and 52: Mlay, 9 2012 l:2lPl\4 No, 1695 P 11
Page 53 and 54: lvlay. 9, 2012 1r22Pl\4 No. 1695 P
Page 55 and 56: jav. 9 2012 l:19PM Iro. 1695 P 2/14
Page 57 and 58: ,v1ay, 9. 2012 l:19PM No, 1695 P 4/
Page 59 and 60: May, 9. 2012 l:20P[1 No, 1695 P 6/
Page 63 and 64: NAME OF WITNESS: MR. ALLAN ROCK (i)
Page 65 and 66: 1 A. I've answered your question. 2
Page 67 and 68: 1 A. No. 2 186 Q. None? 3 A. No. 4
Page 71 and 72:
constitute an improper motive or of
Page 73 and 74:
Class Proceedings Act. In these ins
Page 75 and 76:
TAB 9
Page 77 and 78:
Statute or Rule Governing Place of
show all

court of appeal for ontario - academicfreedom.ca

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?