Catalyst Capital Group Inc. v. VimpelCom Ltd.: A Consideration Of 'Obiter' And Obiter Commentary On Appellate Review

By Stephen G. Ross and Ankita Abraham, Student-at-Law

The Ontario Court of Appeal recently dismissed an appeal brought by the plaintiff, Catalyst Capital Group Inc., which stemmed from a series of lawsuits arising from the plaintiff's attempted purchase of Wind Mobile Group from VimpelCom Ltd. in 2014.1

This is an interesting case as the Court considered a number of legal concepts such as issue estoppel, cause of action estoppel and abuse of process. The Court also commented on two other propositions - what is considered "obiter" and what is the scope of appellate review - which were somewhat surprising in nature.

What follows is a brief summary of the decision and commentary on the two legal principles of what is "obiter" and the scope of appellate review.

Background

This case arises out of the failed attempt by the plaintiff, Catalyst Capital Group Inc., ("Catalyst") to purchase Wind Mobile Group from VimpelCom Ltd. ("VimpelCom"), which was later sold to a group of purchasers (the "Consortium").

As such, the plaintiff commenced a number of lawsuits, the first of which was (the "Moyse Action") against Brandon Moyse ("Moyse"), a junior analyst at Catalyst. He left the company during their negotiations with VimpelCom Ltd. to work at one of the members of the Consortium, West Face Capital Inc. ("West Face").

In short, an employee (Moyse) of the plaintiff went to work for the company that ultimately bought Wind Mobile Group during the time the plaintiff was still trying to purchase Wind Mobile Group.

This matter went to trial in June 2016 before Justice Newbould. The trial judge dismissed the Moyse action in its entirety as Catalyst failed to make out the three elements of the breach of confidence claim.2 In February 2018, the Ontario Court of Appeal also dismissed Catalyst's appeal of Justice Newbould's decision on its merits.3

The second and current action ("current action") was commenced five days before the trial of the Moyse Action. Catalyst in the current action, having failed in their suit against their former employee, tried to sue the successful purchaser on causes of action arising from essentially the same factual matrix.

In the current action, Catalyst alleged breach of contract, breach of confidence, conspiracy and inducing breach of contract against West Face (the successor employer of Moyse) and a number of other defendants. The defendants were successful in dismissing the action on the basis of issue estoppel, cause of action...