Paul Le Vay, Sam Robinson, and Ted Marrocco recently succeeded in resisting a motion to set aside a stay of proceedings previously obtained on behalf of our clients in a complex commercial matter. This decision is the latest in the Continental Bank matter which is a dispute arising out of a venture to create a new chartered bank in Canada. In 2022, our clients obtained a permanent stay of their opponents’ claims after establishing that privileged and confidential communications had been improperly accessed over an extended period of time. It was held that the opposing side’s inability to rebut the presumption of prejudice which flowed from their actions left no other remedy than a permanent stay of their claims.
In this latest decision, the same parties sought to lift the previously imposed stay by arguing that the appointment of a third party receiver to conduct the litigation on their behalf would cure any prejudice presumed to flow from their conduct and would restore fairness to the proceedings. The Court rejected this argument and in doing so analyzes several legal issues including the doctrine of abuse of process and issue estoppel.
The decision can be read here
