





CITATION:
Harrison v. Burns, 2011
          ONCA 664



DATE: 20111024



DOCKET: C53515



COURT OF APPEAL FOR ONTARIO



MacPherson, LaForme and Epstein JJ.A.



BETWEEN



Tom Harrison and Michelle Harrison



Plaintiffs (Respondents)



and



Darin Burns



Defendant (Appellant)



Robert De Toni, for the appellant



Thomas W. Curran, for the respondents



Heard and released orally:
October 21, 2011



On appeal from the judgment of Justice Charles T. Hackland of
          the Superior Court of Justice dated March 1, 2011.



ENDORSEMENT



[1]

The appellant Darin Burns appeals from the judgment of Hackland J. of
    the Superior Court of Justice dated March 1, 2011 granting the respondents the
    right to continue their action in order to establish a claim provable in the
    bankruptcy of the appellant, granting summary judgment to the respondents in
    the amount of $424,500, and adjourning the issue of whether the judgment debt
    should be discharged under the
Bankruptcy and Insolvency Act
to the
    motions court.

[2]

The Harrisons entered into an agreement with Burns to build them a
    house.  During the course of building the house, the Harrisons paid Burns $424,500. 
    The Harrisons alleged that Burns did not pay his subcontractors and suppliers
    with the money that they had given to him and started a court action in
    Ottawa.  Burns defended the action and brought a counterclaim.

[3]

Burns, who had by then moved to New Brunswick, subsequently made an
    assignment in bankruptcy in that province.  The bankruptcy proceedings had the
    effect of staying the Harrisons action against him.

[4]

The Harrisons then brought a motion in Ottawa, and not in bankruptcy
    court in New Brunswick, for leave to continue their action against Burns, for summary
    judgment against Burns, and for a declaration that the judgment would not be
    extinguished upon Burns discharge from bankruptcy.

[5]

The motion judge heard the motion, with counsel representing the
    Harrisons appearing in the court in Ottawa and Burns representing himself by
    telephone from New Brunswick.  He rendered a judgment in the terms of the first
    paragraph above.  He provided no reasons for his judgment.

[6]

The appellant appeals on several grounds, including that the motion
    judge erred in (1) finding that the court in Ontario had jurisdiction to hear
    the Harrisons motion given the appellants assignment in bankruptcy in New
    Brunswick, (2) granting leave to the Harrisons to continue their action against
    Burns in order to establish a claim provable in bankruptcy, (3) granting
    summary judgment for $424,500 without directing the trial of an issue, and (4)
    not providing any reasons for judgment.

[7]

In our view, the appeal can be resolved on the basis of the fourth
    issue.  In
R. V. Sheppard
, [2002] 1 S.C.R. 869 at para. 18, Binnie J.,
    quoting
Baker v. Canada (Minister of Citizenship and Immigration
, [1999]
    2 S.C.R. 817, said that in certain circumstances, the duty of procedural
    fairness will require the provision of a written explanation for the decision.

[8]

This is clearly one of those cases.  The serious jurisdictional issue in
    light of Burns bankruptcy in New Brunswick, the relationship between the
    Ontario action and the New Brunswick proceedings, and the fact that Burns was
    representing himself by telephone from New Brunswick, taken together, required
    that the motion judge provide an explanation for his decision.  He did not do
    so.

[9]

The appeal is allowed and the judgment below is set aside.  We observe
    that, with both parties now represented by counsel, the Harrisons are at
    liberty to bring a similar motion if so advised.

[10]

The appellant is entitled to his costs of the appeal fixed at $3000
    inclusive of disbursements and HST.

J.C. MacPherson
    J.A.

H.S. LaForme
    J.A.

G.J. Epstein
    J.A.


