Bank of Montreal v. WoldeGabriel

Bank of Montreal v. WoldeGabriel

The affirmed criminal conviction for fraud removed any triable issue in the civil claim; the tendered fresh evidence alleging ineffective assistance of counsel lacked credible basis to reopen the civil summary judgment or the criminal proceedings; permitting such relitigation would constitute an abuse of process, so the appeal must be dismissed with costs.

Citation
2008 ONCA 71
Parties
Plaintiff (respondent): Bank of Montreal; Defendant (appellant): Jenifer Harrietha Woldegabriel; Defendant (appellant): William T. Oliver; Defendant (appellant): Adella V. Oliver; Defendant (appellant): Sean B.K. Oliver; Defendant (appellant): Neitha Jospehine Clarke; Defendant (appellant): Kalbi Systems Inc. (also known as Kalbi Systems); Defendant (appellant): Twisted Pair Cables Inc.; Defendant (appellant): Select Technologies Inc. (also known as Select Technology Inc.); Defendant (appellant): 3K Computer Systems Inc. (also knows as 3K Computer Systems, 3K Computer Inc. and 3K Computers Inc.); Defendant (appellant): Jose Ramon Sanchez Ortiz (also known as Jose Sanchez and Jose Sanchez Ortiz); Defendant (appellant): Javier Serret; Defendant (appellant): Premier Maintenance Services
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
5 February 2008
Procedural Posture
Civil / Appeal From Judgment (superior Court of Justice)
Outcome
Appeal dismissed
Legal Topics
Summary Judgment, Fresh Evidence, Ineffective Assistance of Counsel, Abuse of Process, Effect of Criminal Conviction in Civil Proceedings, Costs
Source Language
English
Civil Criminal Collateral Procedure Commercial Law Summary Judgment Fresh Evidence Ineffective Assistance of Counsel Abuse of Process +2 more

Case Brief

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Parties

Bank of Montreal

Plaintiff (respondent)

Jenifer Harrietha Woldegabriel

Defendant (appellant)

William T. Oliver

Defendant (appellant)

Adella V. Oliver

Defendant (appellant)

Sean B.K. Oliver

Defendant (appellant)

Neitha Jospehine Clarke

Defendant (appellant)

Kalbi Systems Inc. (also known as Kalbi Systems)

Defendant (appellant)

Twisted Pair Cables Inc.

Defendant (appellant)

Select Technologies Inc. (also known as Select Technology Inc.)

Defendant (appellant)

3K Computer Systems Inc. (also knows as 3K Computer Systems, 3K Computer Inc. and 3K Computers Inc.)

Defendant (appellant)

Jose Ramon Sanchez Ortiz (also known as Jose Sanchez and Jose Sanchez Ortiz)

Defendant (appellant)

Javier Serret

Defendant (appellant)

Premier Maintenance Services

Defendant (appellant)

Procedural Posture

Civil / Appeal From Judgment (superior Court of Justice)

Legal Issues

  1. 1 Whether partial summary judgment was appropriate in light of the appellant's criminal conviction for fraud
  2. 2 Whether fresh evidence alleging ineffective assistance of counsel justified reopening the civil summary judgment and related criminal proceedings
  3. 3 Whether permitting relitigation of the criminal trial and appeal would constitute an abuse of process

Ratio Decidendi

The affirmed criminal conviction for fraud removed any triable issue in the civil claim; the tendered fresh evidence alleging ineffective assistance of counsel lacked credible basis to reopen the civil summary judgment or the criminal proceedings; permitting such relitigation would constitute an abuse of process, so the appeal must be dismissed with costs.

Court Disposition

Appeal dismissed

Orders

  • Partial summary judgment below affirmed
  • Appeal dismissed with costs to the respondent fixed at $10,000 inclusive of disbursements and GST