Catalyst Capital Group Inc. v. Brandon Moyse, et al.

(Ontario) (Civil) (By Leave)


Appeals - Evidence - Appeals — Evidence — Spoliation — Appropriate legal tests to be applied to determine whether spoliation has occurred in a case involving the admitted destruction of unknown electronically stored information — Whether trial judge erred in law in legal tests applied to determine whether spoliation had occurred — Whether Court of Appeal erred in law by upholding trial judge’s decision in respect of spoliation, and, by holding that it need not consider issues of law argued because of trial judge's findings in respect of spoliation.


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The applicant, Catalyst Capital Group Inc. and the respondent, West Face Capital Inc. are Toronto-based investment management firms. Catalyst brought an action against West Face for an alleged misuse of confidential Catalyst information regarding WIND Mobile Inc. that Catalyst claimed was obtained by West Face from the respondent, Mr. Moyse who had previously worked for Catalyst before joining West Face. Catalyst claimed that West Face had used that confidential information to successfully acquire an interest in WIND.

The trial judge dismissed all claims against West Face and Mr. Moyse and awarded costs to West Face on a substantial indemnity basis and costs to Mr. Moyse on a partial indemnity basis. Catalyst appealed from the dismissal of its claims and sought leave to appeal from the costs order.

The Court of Appeal dismissed Catalyst’s appeal from the bench with reasons to follow and reserved judgment on the costs-related appeals. The Court of Appeal went on to dismiss the application for leave to appeal the costs judgment.