Hogarth et al. v. Rocky Mountain Slate Inc. et al., (2012) 522 A.R. 1

• Judge: O'Ferrall, J.A.
• Court: Court of Appeal (Alberta)
• Case Date: March 13, 2012
• Jurisdiction: Alberta
• Citations: (2012), 522 A.R. 1;2012 ABCA 101

Hogarth v. Rocky Mountain Slate Inc. (2012), 522 A.R. 1; 544 W.A.C. 1 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. MR.184

Lance Hogarth, James Snyder Construction Ltd., James Snyder, Don Jeffers, Anthony Marquart, Dwight Miller, Sani Tech Mechanical Ltd., S & P Cattle Company Ltd., Gary Schaller, Charles Sinclair, Theresa Sinclair, Juana Tamura, Josh Holdings Inc., Freedom Enterprises Inc., 972678 Alberta Ltd., Western International Plastics (Alta.) Ltd., All Services Plumbing and Heating Ltd., Rick Adams, Millie Atkinson, Bitaco Holdings Ltd., Doug Bateman Holdings Ltd., Karl Durst, Stephanie Durst, Giusti Group Ltd., Hallmark Resources Ltd., Harvey Prang Holdings Ltd. and Barry Gould (respondents/plaintiffs) v. Roger Simonson (applicant/appellant/defendant/third party) and Rocky Mountain Slate Inc., John Powell, Eli Suhan, Charles Edward Kucera and Kucera Engineers Inc. (not parties to the appeal/defendants/third parties)

Rocky Mountain Slate Inc. (not a party to the appeal/plaintiff by counterclaim) v. John Pfeiffer, Don Dunsmore, Millie Atkinson and Harvey Prang (not parties to the appeal)

(1201-0029-AC; 2012 ABCA 101)

Indexed As: Hogarth et al. v. Rocky Mountain Slate Inc. et al.

Alberta Court of Appeal

O'Ferrall, J.A.

March 28, 2012.

Summary:

The plaintiffs collectively invested almost $1.8 million in a company that operated a slate quarry. The business failed almost immediately and the plaintiffs lost their investments. The plaintiffs sued the defendants for a return of their investments, claiming that they were induced to invest based on negligent misrepresentations made by the company and its three principals (directors) in written materials and at company meetings. The plaintiffs also alleged that the company's chartered accountant was negligent in preparing future-oriented financial information which induced them to invest. The company counterclaimed against four of its investor directors, alleging various breaches of their duties as directors.

The Alberta Court of Queen's Bench, in a judgment reported (2011), 517 A.R. 203, held that the company and its three principals made negligent misrepresentations which induced all but one of the plaintiffs (Miller) to invest in the company. The chartered accountant was negligent in preparing the future-oriented financial information. The action was dismissed against the remaining defendants and the counterclaim was dismissed. The court apportioned liability. One of the defendants (Simonson) appealed and applied for an order staying enforcement of the monetary judgment pending the appeal.

The Alberta Court of Appeal, per O'Ferrall, J.A., dismissed the application.

Practice - Topic 5854

Judgments and orders - Enforcement of judgments - Stay of - The plaintiffs obtained judgment against several defendants in an amount likely to exceed $1.5 million respecting the plaintiffs' investment in a failed slate quarry - One of the defendants (Simonson) appealed and applied for an order staying enforcement of the monetary judgment pending appeal - The Alberta Court of Appeal, per O'Ferrall, J.A., dismissed the application - The court stated that "the general presumption is that successful litigants are entitled to the benefits of their litigation and stay of money judgments are only reluctantly granted. There may be serious questions to be determined on appeal, but given the [plaintiffs'] undertakings, no irreparable harm will be done to the applicant if execution is allowed to proceed. Likewise, the balance of convenience favours the [plaintiffs]. Admittedly, some harm will befall the applicant if he loses his home. But that is by no means inevitable. Besides, that may not constitute irreparable harm." - The court ordered the plaintiffs to give a written undertaking that they would hold the judgment monies in trust pending the outcome of the appeal or further order of the court.

Practice - Topic 8959

Appeals - Stay of proceedings pending appeal - Considerations - [See Practice - Topic 5854 ].

Counsel:

J.C. Price and E. Semenova, for the respondents;

R.W. Armstrong and M.E. McCartney-Cameron, for the applicant.

This application was heard on March 13, 2012, before O'Ferrall, J.A., of the Alberta Court of Appeal, who delivered the following judgment on March 28, 2012.