Hilltop Group Ltd. et al. v. Katana et al., (1997) 29 O.T.C. 51 (GD)

• Judge: Greer, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: March 05, 1997
• Jurisdiction: Ontario
• Citations: (1997), 29 O.T.C. 51 (GD)

Hilltop Group Ltd. v. Katana (1997), 29 O.T.C. 51 (GD)

MLB headnote and full text

Temp. Cite: [1997] O.T.C. TBEd. AP.052

Hilltop Group Limited, Lorne Wilson and Joanne Wilson (plaintiffs) v. Frank Katana, Ljubica Katana, Damijan Gruden and Mila Gruden (defendants)

(Court File No. 96-CU-106768)

Indexed As: Hilltop Group Ltd. et al. v. Katana et al.

Ontario Court of Justice

General Division

Greer, J.

March 5, 1997.

Summary:

The plaintiffs brought an action to set aside as fraudulent certain conveyances by Mr. and Mrs. Katana and sought an injunction restraining Mr. Katana from divesting himself of his equity interest in several named companies. The plaintiffs sought an order requiring the Canadian Imperial Bank of Commerce (CIBC), a nonparty, to produce for inspection all documents in its possession relating to the named companies.

A Master of the Ontario Court (General Division), in a judgment reported [1997] O.T.C. Uned. 118, held that the motion was premature and adjourned it sine die, to be brought back after the discovery of Mr. Katana. The Master further ordered that the bank produce an affidavit describing the documents connected to the companies, not to dispose of the documents, and to bring the documents to court for inspection. The plaintiffs appealed and the defendants, Katana et al., cross-appealed.

The Ontario Court (General Division) set aside the Master's order where the Master erred in (1) considering the position of the CIBC as it had filed no affidavit material; (2) failing to conclude that the documentation was only available through the bank; (3) holding that the named companies had no relationship to the litigation; (4) finding that the motion was premature; and (5) failing to find that the production of the requested documents was relevant to the plaintiffs' motion for an interlocutory injunction. Furthermore, although the plaintiffs' motion before the Master was brought under the wrong rule, the court held that the defect was correctable and amended the notice of motion accordingly. The court ordered the CIBC to produce for inspection all documents in its possession relating to the financing of the named companies. The cross-appeal was dismissed.

Practice - Topic 4604

Discovery - Production of documents by nonparties - When ordered - See paragraphs 4 to 10.

Cases Noticed:

550551 Ontario Ltd. et al. v. Framingham et al. (1991), 46 O.A.C. 156; 2 O.R.(3d) 284 (Div. Ct.), refd to. [para. 6].

Ontario (Attorney General) et al. v. Stavro et al. (1995), 86 O.A.C. 43; 26 O.R.(3d) 39 (C.A.), refd to. [para. 9].

Counsel:

Robert D. Malen, for the plaintiff, Hilltop Group Ltd.;

P. Lynne Lenihan, for the defendants, Frank Katana and Ljubica Katana, Snelcrest Gardens Inc., Mellow Gardens Inc., 797820 Ontario Ltd., Celebrity Shoes Ltd., M.A.K. Shoes Inc., Brithuron Developments Ltd., Heart Lake Gardens, Humberview Gardens, Valleywood Gardens and Katana Family Trust;

Shahana Kar, for the Canadian Imperial Bank of Commerce.

This appeal was heard on March 5, 1997, before Greer, J., of the Ontario Court (General Division), who delivered his decision orally on March 5, 1997, and released the following written reasons on April 3, 1997.