



COURT OF APPEAL FOR ONTARIO

CITATION: Bogue v. Miracle, 2021 ONCA 278

DATE: 20210430

DOCKET: C68596

Benotto, Miller and Trotter JJ.A.

BETWEEN

Glenn
    Bogue

Applicant
(Respondent)

and

Andrew Clifford Miracle
    a.k.a. Sir Andrew Miracle
,
Andrew Clifford Maracle III a.k.a. Andy Maracle, Smokin Joes



Respondents
(
Appellant
)

Ian J. Collins, for the appellant Andrew
    Miracle

Kenneth H. Page, for the respondent Glenn
    Bogue

Robert J. Reynolds and Mike Pretsell,
    for Lisa Maracle Sexsmith and Virginia Maracle

Heard: April 21, 2021 by video conference

On
    appeal from the order of Justice Stanley J. Kershman of the Superior Court of
    Justice, dated October 11, 2019.

REASONS FOR DECISION

[1]

The appellant, Andrew Clifford Miracle
    (Andrew), had been involved in a dispute with his son, the respondent, Andrew
    Maracle III (Andy). The dispute involved the joint ownership of Smokin Joes,
    a store in the Tyendinaga Mohawk Territory near Belleville. Andrew and Andy
    agreed to arbitration. Andrew entered into a retainer agreement with the
    respondent Glenn Bogue to act for him on the arbitration. The contingency
    agreement provided that Bogue would receive 25% of the amount awarded.

[2]

On November 24, 2016, the arbitrator decided
    that Andy owed Andrew $11,486,283.00. The arbitration award was subsequently
    made into an order at Andrews request. Andy was required to transfer his
    interest in Smokin Joes to Andrew. Andrew now has possession of Smokin Joes.

[3]

Lisa Maracle Sexsmith and Virgina Miracle own and
    operate Smokin Speedway, a gas station. Andy was a one-third owner of Smokin
    Speedway before he transferred his ownership share to Lisa and Virginia. Lisa
    and Virginia are not directly affected by the order but obtained status as
    respondents out of concern that Bogue will seek a receivership order or
    garnishment order against them.

[4]

Andrew has paid Bogue only $12,500.00. Bogue
    sought the appointment of a receiver to realize upon the debt for his benefit
    and Andrews other creditors.

[5]

Kershman J. granted the order pursuant to s. 101
    of the
Courts of Justice Act
, R.S.O. 1990, c. C.43.

[6]

Andrew alleges that the application judge erred
    because: (i) he had no authority to make a
final
order for a receiver;
    (ii) there was no money owed to Bogue for fees on the contingency; and (iii) the
    final order for a receiver contravenes the
Indian Act
, R.S.C. 1985, c.
    1-5, ss. 29, 89, which prohibits the enforcement by a non-status Indian against
    the assets of an Indian situated on a reserve. He relies on
Borden &
    Elliot v. Temagami First Nation
, [2009] 3 C.N.L.R. 30 (Ont. S.C.);
Mitchell
    v. Peguis

Indian Band
, [1990] 2 S.C.R. 85; and
Tyendinaga
    Mohawk Council v. Brant
, 2014 ONCA 565, 121 O.R. (3d) 561.

[7]

In our view, the third ground of appeal is a
    threshold issue which must be determined before the appeal can be heard.

[8]

It is not clear that this issue was raised in
    the court below. Andrew acknowledges that he did not raise this issue before
    the application judge. But he says it was argued by Virginia Maracle and Lisa
    Maracle Sexsmith. Although the application judge touched on the issue as it
    related to Virginia Maracle and Lisa Maracle Sexsmith, he failed to make the
    findings necessary to conduct appellate review of this aspect of his decision,
    especially as it relates to Andrew. For example, Andrew says Bogue is not an
    Indian under the
Act
. Bogue says that there is no evidence on the
    record about his status under the
Act
, as this argument was not raised
    in the court below. In addition, he submits that, if the provisions of the
Indian
    Act
apply, that Andrew has waived his rights to protection under it.

[9]

We cannot consider this appeal without a
    determination from the court below on the issue raised with respect to the
Indian
    Act
.
As a general rule, this court will decline to
    decide new issues on appeal:
R. v. Roach
,
2009 ONCA 156
, 246
    O.A.C. 96, at para. 6.

[10]

For this reason, we return the matter to the application
    judge to determine the effect of the appellant
s submission with respect
    to the
Indian Act
.

[11]

We award no costs.

M.L.
    Benotto J.A.

B.W.
    Miller J.A.

Gary
    Trotter J.A.


