Coopers & Lybrand Ltd. v. Richter & Associates, [2000] O.T.C. 388 (SupCt)

• Judge: M.A. Sanderson, J.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: June 01, 2000
• Jurisdiction: Ontario
• Citations: [2000] O.T.C. 388 (SupCt)

Coopers & Lybrand Ltd. v. Richter, [2000] O.T.C. 388 (SupCt)

MLB headnote and full text

Temp. Cite: [2000] O.T.C. TBEd. JN.010

Coopers & Lybrand Limited (responding party) v. Richter & Associates (moving party)

(98-CU-150177)

Indexed As: Coopers & Lybrand Ltd. v. Richter & Associates

Court of Ontario

Superior Court of Justice

M.A. Sanderson, J.

June 1, 2000.

Summary:

A trustee in bankruptcy commenced an action against Coopers & Lybrand Ltd. on behalf of the bankrupt, alleging professional negligence and malpractice. In late 1997, the trustee became aware that Coopers & Lybrand was going to merge with Price Waterhouse and, effective July 1, 1998, become PricewaterhouseCoopers. On June 25, 1998, Coopers & Lybrand obtained an order exempting it from compliance with certain requirements of the Bulk Sales Act. The order provided that the application record submitted by Coopers & Lybrand was to be sealed. In July 1998, the trustee learned of the bulk sales exemption order and wrote to PricewaterhouseCoopers advising that the bankrupt would be looking to it and its partners or members for full recompense. The trustee took no further steps until June 1999, when it wrote to PricewaterhouseCoopers seeking full details of the merger. In the same month, the trustee applied under Civil Procedure Rule 38.11(3) to set aside the portion of the bulk sales exemption order which had required the application record to be sealed.

The Ontario Superior Court held that the trustee, as a member of the public, was affected by the sealing order and, accordingly, had standing under rule 38.11(3) as a person affected by a judgment on an application made without notice. However, the trustee did not meet the requirement under rule 38.11(3) of moving forthwith after the judgment came to its attention. Knowledge of the bulk sales exemption order should have alerted the trustee's representatives to the possibility of a sealing order. That knowledge imposed a duty upon the representatives to make diligent and timely enquiries if they intended to make an application under rule 38.11(3).

Practice - Topic 3711

Evidence - Sealed evidence - General - See paragraphs 17 to 41.

Practice - Topic 6189

Judgments and orders - Setting aside judgments - Judgment made without notice - See paragraphs 17 to 41.

Cases Noticed:

Pizzolati & Chittaro Manufacturing Co. v. May, [1972] 2 O.R. 606 (C.A.), refd to. [para. 17].

National Bank of Canada v. Melnitzer (1991), 5 O.R.(3d) 234 (Gen. Div.), refd to. [para. 23].

R. v. Bell, [1969] 2 C.C.C. 9 (Sask.), refd to. [para. 29].

R. v. Parrot (1979), 27 O.R.(2d) 333 (C.A.), refd to. [para. 31].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 38.11(1) [para. 3 et seq.].

Authors and Works Noticed:

Canadian Forms & Precedents, p. 9-148 [para. 36].

Counsel:

Brian Morgan and Lisa Sand, for the responding party;

Peter Griffin, for the moving party.

This motion was heard by M.A. Sanderson, J., of the Ontario Superior Court, who released the following endorsement on June 1, 2000.

Please note: The following judgment has not been edited.