Shiner Kideckel Zweig Inc. v. Couture
The appeal was dismissed because the motion judge properly exercised her discretion to vary the consent order in the interests of justice given that counsel had been unaware of material facts when consenting, and because there was evidence the Trustee had disclosed the existence and contents of the audit report to a...
Source-derived case information.
- Citation
- C40933
- Parties
- Appellant: Shiner Kideckel Zweig Inc., Trustee in Bankruptcy of the Estate of Beetown Honey Products Inc.; Respondent: Donald Couture; Respondent: Beverly Couture
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 22 October 2004
- Procedural Posture
- Civil / Appeal From Motion Judge's Order Dated October 1, 2003 (variation of Consent Order)
- Outcome
- Appeal dismissed
- Legal Topics
- Variation of Consent Order, Litigation Privilege, Disclosure of Audit Report, Trustee Duties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shiner Kideckel Zweig Inc., Trustee in Bankruptcy of the Estate of Beetown Honey Products Inc.
Appellant
Donald Couture
Respondent
Beverly Couture
Respondent
Procedural Posture
Civil / Appeal From Motion Judge's Order Dated October 1, 2003 (variation of Consent Order)
Legal Issues
- 1 Whether the Court of Appeal should interfere with a motion judge's decision to vary a consent order
- 2 Whether litigation privilege protected the audit report held by the Trustee in bankruptcy
- 3 Whether disclosure occurred such that privilege did not apply
Ratio Decidendi
The appeal was dismissed because the motion judge properly exercised her discretion to vary the consent order in the interests of justice given that counsel had been unaware of material facts when consenting, and because there was evidence the Trustee had disclosed the existence and contents of the audit report to a third party, justifying disclosure and rendering broader resolution of trustee litigation privilege unnecessary.
Court Disposition
Appeal dismissed
Orders
- Motion judge's variation of the consent order upheld
- Costs to the respondent fixed at $11,000 inclusive of disbursements and G.S.T. and all prior motions
Full Case Text
Judgment text and source record
1 paragraphs
Shiner Kideckel Zweig Inc. v. Couture Collection Decisions of the Court of Appeal Date 2004-10-22 Docket numbers C40933 Judges Moldaver, Michael James; Sharpe, Robert J.; Killeen, Gordon Patrick Subject Civil Decision Content DATE: 20041022 DOCKET: C40933 COURT OF APPEAL FOR ONTARIO RE: SHINER KIDECKEL ZWEIG INC., TRUSTEE IN BANKRUPTCY OF THE ESTATE OF BEETOWN HONEY PRODUCTS INC. (Appellant) – and – DONALD COUTURE AND BEVERLY COUTURE (Respondents) BEFORE: MOLDAVER, SHARPE JJ.A. and KILLEEN J. (ad hoc) COUNSEL: Peter J. Cavanagh for the appellant Rachel Moses for the respondent HEARD & ENDORSED: October 22, 2004 On appeal from the order of Justice Harriet E. Sachs of the Superior Court of Justice dated October 1, 2003. APPEAL BOOK ENDORSEMENT [1] We are not persuaded that we should interfere with the motion judge’s decision to vary the consent order which was procedural in nature. There was evidence that when the respondent consented to the terms of the order, his counsel, who had only recently been retained, was, through no fault of his own, unaware of material facts which arguably had a direct bearing on the terms of the order. In these circumstances, it was open for the motion judge to conclude, as she did, that the interests of justice would be served by varying the order and frustrated by denying that relief. [2] With respect to the issue of litigation privilege, there was unanswered evidence that the Trustee had declared the existence and contents of the audit report to Mr. Pawlett and in our view, that evidence was sufficient to justify the order of the motion judge regarding disclosure of the report. That being so, it is unnecessary to decide the broader issue as to “if and when” a Trustee in Bankruptcy can claim litigation privilege. [3] Accordingly, the appeal is dismissed with costs to the respondent fixed at $11,000 inclusive of disbursements and G.S.T. and all prior motions. “M. J. Moldaver J.A.”