Hall-Chem Inc. v. Vulcan Packaging Inc. et al., (1994) 72 O.A.C. 303 (CA)

• Judge: Weiler, J.A.
• Court: Court of Appeal (Ontario)
• Case Date: May 27, 1994
• Jurisdiction: Ontario
• Citations: (1994), 72 O.A.C. 303 (CA)

Hall-Chem Inc. v. Vulcan Packaging (1994), 72 O.A.C. 303 (CA)

MLB headnote and full text

Hall-Chem Inc. (plaintiff) and Vulcan Packaging Inc., Vulcan, Emballages Inc. carrying on business under the firm name and style of Vulsay Industries (defendants)

Vulcan Packaging Inc., Vulcan, Emballages Inc. carrying on business under the firm name and style of Vulsay Industries (plaintiffs by counterclaim (respondent)) and Hall-Chem Inc., Michel Belec, Lawrence Deakins, Qualilab Marketing Inc. and Qualilab Industries Inc. (defendants by counterclaim (appellant))

(C18618, M13523)

Indexed As: Hall-Chem Inc. v. Vulcan Packaging Inc. et al.

Ontario Court of Appeal

Weiler, J.A.

June 9, 1994.

Summary:

Vulcan obtained judgment against Belec in the amount of $338,000 for negligent misrepresentation, breach of trust and fraud. Belec appealed. Vulcan applied to have the automatic stay of the monetary judgment lifted and for security for costs on appeal.

The Ontario Court of Appeal allowed the applications.

Practice - Topic 5854

Judgments and orders - Enforcement of judgments - Stay of - Vulcan obtained judgment against Belec in the amount of $338,000 for negligent misrepresentation, breach of trust and fraud - Belec appealed - Ontario Civil Procedure Rule 63.01(1) automatically stays an order for the payment of money upon the delivery of notice of appeal - Vulcan applied under rule 63.01(3) to have the stay lifted - The Ontario Court of Appeal stated that in an application under rule 63.01(3) the court had to consider the grounds of appeal, the general circumstances of the case and the probable delay between the trial and the appeal - The court stated that it was necessary to balance the needs of the appellant and the respondent - The court lifted the stay - See paragraphs 4 to 21.

Practice - Topic 8209

Costs - Security for costs - Security for costs of an appeal - Grounds for - Special circumstances - Vulcan obtained judgment against Belec in the amount of $338,000 for negligent misrepresentation, breach of trust and fraud - Belec appealed - Vulcan applied for security for costs on appeal under Ontario Civil Procedure Rule 61.01(1)(c) - The Ontario Court of Appeal held that a finding of fraud was a special circumstance and that Belec would not be prevented from conducting the appeal if the order was granted - However, the court declined to award security for costs where the costs of trial and the proposed costs for appeal had yet to be assessed - See paragraphs 22 to 27.

Cases Noticed:

Digiammatteo et al. v. LeBlanc et al. (1989), 35 O.A.C. 380; 71 O.R.(2d) 130 (C.A.), refd to. [para. 5].

Oswell v. Oswell (1991), 46 O.A.C. 316; 2 O.R.(3d) 145 (C.A.), refd to. [para. 6].

Stein Estate v. Ship Kathy K, [1976] 2 S.C.R. 802; 6 N.R. 359; 62 D.L.R.(3d) 1, refd to. [para. 15].

Air Canada v. M & L Travel Ltd., Martin and Valliant, [1993] 3 S.C.R. 787; 159 N.R. 1; 67 O.A.C. 1, refd to. [para. 15].

Peper v. Peper (1990), 46 O.A.C. 241; 1 O.R.(3d) 145 (C.A.), refd to. [para. 17].

Stein v. Sandwich West (Township) (1994), 16 O.R. 321 (C.A.), refd to. [para. 17].

Kennedy v. Kennedy (1985), 45 R.F.L.(2d) 109 (C.A.), refd to. [para. 17].

Heller (Walter E.) Financial Corp. v. American General Supply of Canada (1969) Ltd. et al. (1986), 56 O.R.(2d) 257 (C.A.), refd to. [para. 17].

Babbitt v. Paladin Inc. (1993), 20 C.P.C.(3d) 399 (Ont. C.A.), refd to. [para. 17].

Quabbin Hill Investments Inc. v. Armour et al. (1992), 55 O.A.C. 199; 8 O.R.(3d) 278 (C.A.), refd to. [para. 19].

Toronto-Dominion Bank v. Szilagyi Farms Ltd. and Szilagyi (1988), 29 O.A.C. 357; 65 O.R.(2d) 433 (C.A.), refd to. [para. 23].

Tricontinental Investments Co. v. Guarantee Co. of North America et al. (1989), 35 O.A.C. 253; 39 C.P.C.(2d) 113 (C.A.), refd to. [para. 23].

956513 Ontario Ltd. v. Anderson et al. (1992), 57 O.A.C. 302; 10 O.R.(3d) 563 (C.A.), refd to. [para. 23].

Fabing v. Conceicao (1986), 15 O.A.C. 66; 54 O.R.(2d) 402 (C.A.), refd to. [para. 24].

Statutes Noticed:

Courts of Justice Act, R.S.O. 1990, c. 43, sect. 134(2) [para. 4].

Rules of Civil Procedure (Ont.), rule 61.06 [para. 1]; rule 61.06(1)(c) [para. 22]; rule 63.01(1), rule 63.01(3) [para. 4].

Authors and Works Noticed:

Farrar, J.H., Fraud, Fairness and Piercing the Corporate Veil (1990), 16 Can. Bus. L.J. 474, generally [para. 15].

Fraser & Stewart, Company Law of Canada (6th Ed. 1993), p. 19 [para. 15].

Ziegel, Jacob S., Partnerships and Business Corporations (2nd Ed. 1989), vol. 1, p. 157 [para. 15].

Counsel:

Kirk M. Baert, for the respondent, Vulcan Packaging Inc.;

John T. Zuber, for the appellant, Michel Belec.

This appeal was heard on May 27, 1994, before Weiler, J.A., in chambers, of the Ontario Court of Appeal, who delivered the following judgment which was released on June 9, 1994.