





CITATION:
Mauldin v. Hryniak, 2011 ONCA 12
6



DATE: 20110211



DOCKET: M39686-M39709/C52912-C52913



COURT OF APPEAL FOR ONTARIO



Doherty J.A.



BETWEEN



Fred
          Mauldin, Dan Myers, Robert Blomberg, Theodore Landkammer, Lloyd Chelli,
          Stephen Yee, Marvin Cleair, Carolyn Cleair, Richard Hanna, Douglas Laird,
          Charles Ivans, Lyn White, and Athena Smith




Plaintiffs (Respondents)



and



Cassels
          Brock & Blackwell LLP, Gregory Jack Peebles, and
Robert Hryniak



Defendants (Appellant)

BETWEEN

Bruno
          Appliance and Furniture, Inc.

Plaintiff (Respondent)

and

Cassels
          Brock & Blackwell LLP, Gregory Jack Peebles, and
Robert Hryniak

Defendants (Appellant)



Sarit E. Batner, for the appellant



David Alderson and Javad Heydary, for the respondents



Heard:
February 10, 2011



On motions for extensions of time to perfect the appeals and
          on motions for stays pending the appeals and on appeal from the order of
          Justice A. Duncan Grace of the Superior Court of Justice dated October 22,
          2010, with reasons reported at 2010 ONSC 5490.



ENDORSEMENT



[1]

In an endorsement released January 24, 2011, Justice
    Weiler ordered the appellant to post an irrevocable letter of credit in the
    amount of $950,000 (the letter of credit) with the accountant of the Superior
    Court of Justice by February 3, 2011.  The
    appellant has been unable to do so and brings this motion seeking an order to
    facilitate the obtaining of the required letter of credit.  The deadline for posting the letter of credit
    was extended by OConnor A.C.J.O. to todays date, February 10, 2011.

[2]

The appellant alleges that he cannot fund the letter of
    credit except by making the property located at 66 Cotswold Crescent, Toronto,
    Ontario (the matrimonial home) available as security for the loan needed to
    fund the letter of credit.  The judgments
    against the appellant obtained by the respondents at trial are presently
    registered against title on the matrimonial property. The appellants wife,
    Suzanna Mandryk [Ms. Mandryk], claims a beneficial owner interest in the
    matrimonial home.  She also holds a
    charge in the amount of $1,000,000 placed on the home in early December.  Assuming that charge is valid, (a disputed
    issue), it presently ranks ahead of the respondents trial judgments.

[3]

Ms. Mandryk was not a party to the proceedings at trial
    and is not a party to the appeal or this motion.  She is not bound by any order I might
    make.  However, I am assured by counsel
    for the appellant that Ms. Mandryk is prepared to assist her husband in making the
    necessary arrangements to allow him to provide security on the matrimonial home
    that will permit CIBC to fund the letter of credit.  I rely on that assurance in making this order
    allowing the appellant an extension of the time needed to perfect his
    appeal.  Without those assurances, the
    request for an extension of time would be seen in a different light.

[4]

As I read the voluminous material filed on the motion
    and cross-motion, the parties agree that the Canadian Imperial Bank of Commerce
    (the CIBC) should have a first charge on the matrimonial home to permit the
    funding of the $950,000 irrevocable letter of credit that Weiler J.A. ordered
    posted as security by the appellant as a term of her order granting the
    appellant an extension of time to perfect his appeal.

[5]

The parties disagree as to what additional terms,
    beyond those needed to give CIBC a first charge on the matrimonial home are
    required.

[6]

I am satisfied that the intention of the order of
    Weiler J.A. can be implemented by the following variation of the terms of her
    order:

·

The CIBC may place a charge (the CIBC charge) in
    the amount of $1,000,000 on the matrimonial property for the purpose of
    providing to the appellant with the funding necessary to obtain a letter of
    credit from the CIBC in the amount of $950,000;

·

The trial judgments in favour of the respondents
    dated October 22, 2010 and presently registered against the title to the
    matrimonial home shall be postponed in favour of the CIBC charge described
    above;

·

The charge in favour of Ms. Mandryk registered against
    title on the matrimonial home on December 3, 2010 in the amount of $1,000,000
    shall be postponed both to the CIBC charge described above and the trial
    judgments in favour of the respondents and currently registered against the
    property;

·

The appellant will have until 4:00 p.m. on February
    22nd to post an irrevocable letter of credit in the amount of $950,000 with the
    accountant of the Superior Court of Justice.  The accountant will hold that letter of credit pending further order of
    this court.

·

If the appellant has not provided the written
    undertaking to the Registrar described in para. 42 of Weiler J.A.s judgment,
    he shall do so immediately.  The
    undertaking is subject only to any steps the appellant must take in respect of
    the matrimonial home so as to give effect to the terms of this order or the
    order of Weiler J.A.

[7]

Counsel for the appellant does not seek any variation
    in the date set for the perfection of the appeal.  The perfection date of March 7, 2011 fixed by
    OConnor A.C.J.O. remains in force.

[8]

Counsel for the appellant submits that I should make it
    clear that if the letter of credit is ultimately ordered paid out to the
respondents, that
the amount of the payment counts against
    the appellants interest in the matrimonial home and not Ms. Mandryks interest.  If I understand the respondents position
    correctly, they contend that if the letter of credit is ordered paid to them,
    they are still entitled to pursue fully whatever interest the appellant has in
    the matrimonial home without regard to the amount recovered through the letter
    of credit.

[9]

I confess to difficulty understanding the logic of the
    respondents position.  They maintain and
    have always maintained that the appellant has an interest in the matrimonial
    home.  If he borrows money against the matrimonial
    home to fund the letter of credit, and if the letter of credit is ultimately
    paid out to the respondents in partial satisfaction of the judgment, it seems
    to me that the payment is the product of the appellants interest in the
    property.

[10]

In any event, now is not the time to decide the issue
raised
above.  If the
    appeal is dismissed, the respondents will presumably apply for an order
    directing that the proceeds of the letter of credit be paid out to them in
    partial satisfaction of the trial judgments.  Presumably, that order will issue and the respondents will then take
    whatever steps they can to recover the amounts that remain owing on the
    judgments.  Should those steps include
    attempts to realize on any value remaining in the matrimonial home, the
    respective interests, if any, of the appellant and Ms. Mandryk and the effect on
    those interests of the payment out on the letter of credit will have to be
determined.


[11]

It would not be helpful for me at this time to
    speculate on the answers to questions that might arise in the future,
    especially in light of the uncertainty as to the nature and extent of the interests
    that the appellant and Ms. Mandryk have in the matrimonial home.  Ms. Mandryk should also have the opportunity
    to be represented in the forum in which these matters are ultimately
    determined.

[12]

It is important that this appeal be perfected by the
    March 7
th
date and that it be heard expeditiously.  I will make myself available to address any
    issues arising out of this order or any issues with respect to scheduling of
    the appeal.  Counsel should obtain a date
    for the hearing of the appeal as soon as it is perfected.  I am available to assist in obtaining an
    early date.

[13]

Neither party got everything they wanted on this
    motion.  No costs.

Doherty J.A.


