



COURT OF APPEAL FOR ONTARIO

CITATION: Walchuk Estate v. Houghton, 2015 ONCA 862

DATE: 20151209

DOCKET: M45220 (C60317)

Laskin, Pardu and Roberts JJ.A.

BETWEEN

Mary Walchuk, Estate Trustee for Walter Walchuk,
    deceased

Plaintiff (Respondent/Moving Party)

and

Walter Houghton also known as Wilfred Houghton
    also known as Wilfred W. Houghton also known as Wilfred P. Houghton

Defendant (Appellant/Responding Party)

Andrew Sheremeta, for the moving party

Michael Jaeger, for the responding party

Heard: November 23, 2014

By
    the Court:

[1]

The respondent, Mary Walchuk, has brought a motion to quash this appeal
    from the judgment of Harper J. dated March 9, 2015. The issue on the motion is
    whether Harper J.s judgment is a final or interlocutory order. If it is a
    final order the motion fails; if it is an interlocutory order the motion
    succeeds. For the brief reasons that follow, we have concluded that the order
    is final.

A.

Chronology

(a)

Background

[2]

In 2011, Walchuk obtained a judgment against Houghton for $105,000. In
    December 2013, Walchuk sought to examine Houghton in aid of execution on the
    judgment. Houghton did not attend the examination. Walchuk then brought a
    motion for contempt.

[3]

The contempt motion first came on before Harper J. on September 5, 2014.
    He adjourned the contempt motion and ordered Houghton to attend at an examination
    in aid of execution on September 17, 2014, and to bring with him to that
    examination numerous documents requested by Walchuk.

[4]

On September 16, 2014, the day before the scheduled examination,
    Houghton filed for bankruptcy. During oral argument on this motion, we were
    told a trustee in bankruptcy is in place but has elected not to take part in
    these proceedings.

[5]

Houghton did attend the examination on September 17, 2014, but brought
    none of the documents requested. He took the position that because of s. 69 of
    the
Bankruptcy and Insolvency Act
, R.S.C. 1985, c. B-3 (
BIA
),
    the contempt proceedings against him were stayed.

[6]

After Houghton failed to produce documents, Walchuk renewed her motion
    for contempt. She claimed that Houghton had failed to comply with Harper J.s
    order of September 5, 2014. The contempt motion was heard by Harper J. in
    February of this year, and he released his reasons on March 9, 2015.

(b)

Harper J.s Judgment of March 9, 2015

[7]

The issue before Harper J. was whether s. 69(1)(a) of the
BIA
stayed the contempt proceedings. That section states:

69(1) subject to subsections (2) and (3), and
    sections 69.4, 69.5 and 69.6, on the filing of a notice of intention under
    section 50.4 by an insolvent person,

(a) no creditor has any remedy against the insolvent
    person or the insolvent persons property, or shall commence or continue any
    action, execution or other proceedings, for the recovery of a claim provable in
    bankruptcy

[8]

Although leave may be granted to lift the stay provided by s. 69, no leave
    has been sought. Nonetheless, Harper J. concluded that s. 69 did not stay the
    contempt proceedings against Houghton. He wrote at para. 22 of his reasons:

I am of the view that the motion for contempt before me is one
    that goes directly to the issue of the courts ability to enforce its
    judgments. The order I made was an order that called for the defendants to do
    certain things. Whether he did them or not cannot be caught up in his choice of
    the timing of his filing for bankruptcy. I find that the motion for contempt
    may proceed.

[9]

Harper J. did not rule on the contempt motion. Instead he ordered that
    it be heard on a date to be fixed by the trial coordinator. Although the
    contempt motion has not been heard, Houghton appealed Harper J.s March 9
    judgment.

(c)

Further proceedings

[10]

The
    contempt motion was scheduled for August 18, 2015. In June, Houghton brought a
    motion before Tulloch J.A. to stay the contempt proceedings pending his appeal.
    Walchuk brought a cross-motion to quash the appeal. Tulloch J.A. properly
    adjourned the motion to quash to a full panel, but dismissed Houghtons motion
    to stay on the ground Harper J.s judgment was an interlocutory order.

B.

Discussion

[11]

On
    her motion to quash, Walchuk submits that the judgment of Harper J. is an
    interlocutory order because he did not rule on the contempt motion. Instead, he
    simply ordered the motion to be heard at a later date. She relies on Tulloch
    J.A.s endorsement which held that the judgment under appeal is from an
    interlocutory order. Houghton on the other hand, submits that the order under
    appeal is final because Harper J. determined a substantive question: whether
    Houghton may still be subject to contempt proceedings despite s. 69 of the
BIA
.

[12]

The
    question whether orders under appeal are final or interlocutory has generated a
    lot of case law in this court. Some of the cases are not easily reconcilable.
    The starting point is to look at the judgment or order itself, and not the
    reasons for judgment. See
Ashak v. Ontario
, 2013 ONCA 375; and
Trainor
    v. Canada (Customs and Revenue Agency)
, 2011 ONCA 794.

[13]

Here,
    if one were to look at the judgment of Harper J. alone, his order appears to be
    interlocutory. It adjourns, rather than finally disposes of, the contempt
    motion. That was the view taken by our colleague, Tulloch J.A.

[14]

But,
    in some cases, to determine whether an order is truly final or interlocutory,
    one needs to look at the reasons. This is one of those cases. If the reasons
    show that a defendant has been deprived of a substantive right or defence that
    could resolve all or part of the proceedings, then the order is final. See
Ball
    v. Donais
, [1993] O.J. No. 972;
Abbot v. Collins
, [2002] O.J. No.
    4058;
Ashak
, at para. 17.

[15]

In
    this case, the only question before Harper J.  and it was a question of law 
    was whether Houghton could still be liable for contempt though he had declared
    bankruptcy. Harper J. decided that question. Had he ruled that s. 69 of the
BIA
stayed the contempt proceedings, that ruling would have put an end to those
    proceedings. Because he ruled otherwise, Houghton has potentially been deprived
    of a right or defence that would have ended the proceedings against him. For
    this reason, Harper J.s judgment is a final order. Of course, whether Harper
    J. was right or wrong must be decided by the panel hearing the appeal.

[16]

The
    motion to quash is dismissed with costs fixed at $6,000 inclusive of
    disbursements and applicable taxes.

Released: December 9, 2015 (G.P.)

John Laskin J.A.

G. Pardu
    J.A.

L.B. Roberts
    J.A.


