





CITATION: Mauldin v. Cassels Brock & Blackwell
      LLP, 2011 ONCA 67



DATE: 20110124



DOCKET: M39492 & M39517 (C52912)



COURT OF APPEAL FOR ONTARIO



Weiler J.A. (in chambers)



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)

(Responding Parties in
          M39492/Moving Parties in M39517)



and



Cassels Brock
          & Blackwell LLP,

Gregory Jack Peebles,
      and
Robert Hryniak




Defendants (
Appellant
)

(
Moving Party in
          M39492/Responding Party in M39517
)



DOCKET: M39493 & M39519 (C52913)



BETWEEN



Bruno Appliance and Furniture, Inc.



Plaintiffs
          (Respondents)

(Responding Party in
          M39493/Moving Party in M39519)



and



Cassels Brock
          & Blackwell LLP,

Gregory Jack Peebles,
      and
Robert Hryniak





Defendants (
Appellant
)

(
Moving Party in
          M39493/Responding Party in M39519
)



Kenneth Cancellara, Q.C., Gleb Bazov and Andrea Sanche, for the
          appellant



Javad Heydary, David Alderson and Ruzbeh Hosseini, for the
          respondents



Heard: January 6, 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.



Weiler J.A. (in chambers):

[1]

The appellant, Robert Hryniak, has brought a motion
    to extend the time to perfect his appeal until March 31, 2011. Rule 3.02(1) of
    the
Rules of Civil Procedure
provides that the court may extend the time prescribed by the rules on such
    terms as are just.


[2]

The respondents, referred to as the Mauldin group
    and Bruno Appliance and Furniture, Inc. (Bruno), oppose Hryniaks motion and
    have each brought cross-motions for the following relief: (a) an order lifting
    the automatic stay pending appeal, pursuant to rule 63.01; (b) an order that
    Hryniak post security for costs, pursuant to rule 61.06; and (c) an
    interlocutory or mandatory order requiring Hryniak to pay the amount awarded by
    summary judgment into court, pursuant to rule 40.01 and s. 101 of the
Courts of Justice Act
, R.S.O. 1990, c.
    C.43.

[3]

The motions arise out of the order of Grace J.,
    granting partial summary judgment pursuant to Rule 20. Hryniak was ordered to
    pay the Mauldin group $1,190,401.29 USD and to pay Bruno $1 million USD. The
    motion judge found that the evidence established that Hryniak had created an
    investment structure designed to defraud them. He further found that Hryniak
    procured the Mauldin groups money fully intending to take it. Finally, the
    motion judge found that Hryniak received the Bruno funds and did not invest
    them, instead using them to make payments to others. These findings were made
    on the basis of a voluminous documentary record consisting of 28 volumes of
    evidentiary material, along with transcripts of cross-examinations and rule
    39.03 examinations involving 18 witnesses.

[4]

The Mauldin group and Bruno also brought a motion
    for summary judgment against Hryniaks lawyer, Greg Peebles, and Peebles
    former law firm, Cassels Brock & Blackwell LLP. The motion judge concluded
    that summary judgment was not warranted against Peebles or Cassels Brock and
    dismissed the motion for summary judgment in relation to them. He ordered that the
    action against these defendants proceed to trial with dispatch. The full
    reasons for judgment are reported at 2010 ONSC 5490.

The Test

[5]

Although this motion involves a request for leave
    to extend time to perfect an appeal, it is useful to consider the factors that
    apply when determining whether to exercise discretion to extend the time for
    filing a notice of appeal. Those factors are:

·

Has the appellant maintained a firm intention to
    appeal within the relevant time period?

·

Has the appellant provided a reasonable explanation
    for the delay in perfecting the appeal?

·

Is there prejudice to the respondent in granting
    the extension?

·

Is there is so little merit in the proposed appeal that
    the court could reasonably deny the appellant this important right?

·

Does
    the justice of the case require the granting of an extension?

See Todd Archibald,
    Gordon Killeen & James C. Morton,
Ontario
    Superior Court Practice

2011
(Toronto: Lexis Nexis Canada, 2010), at p.580;
Rizzi
    v. Mavros
(2007), 85 O.R. (3d) 401 (C.A.); and
Kefeli v. Centennial College of Applied Arts and
    Technology
, 23 C.P.C. (5
th
) 35 (Ont. C.A.), at para. 14.

i. Intention to Appeal

[6]

The judgment at issue was released on October 22,
    2010. The notices of appeal in the actions brought by the Mauldin group and Bruno
    against Hryniak were served on November 8, 2010, and filed on November 9, 2010,
    well within the 30-day time limit prescribed by the rules for appealing the
    order. I am satisfied that Hryniak had an intention to appeal within the
    relevant time period.

ii. Explanation for the Delay

[7]

Hryniaks explanation for the delay in perfecting
    his appeals within the 30-day period after filing the notices of appeal, as
    required by rule 61.09(1), is that he wished to obtain a second opinion about
    his litigation strategy and ultimately retained new solicitors on December 15,
    2010. The explanation for the delay is reasonable.

iii.  Prejudice

[8]

In this case the motion to extend the time within
    which to perfect the appeal was promptly brought and the extension of time that
    Hryniak seeks to perfect the appeal is less than two months.
It
    does not appear that the respondents would be prejudiced in defending against
    the appeal by the granting of an extension of time within which to perfect it.

[9]

The respondents do, however, allege prejudicial
    conduct on the part of the appellant.
I prefer to discuss this
    conduct when considering the justice of the case.


iv. The Merits of the Appeal

[10]

The fourth factor requires me to consider the
    merits of the appeal, not with a view to determining whether the appeal will
    succeed, but to determine whether it has so little merit that the court could
    reasonably deny the important right of an appeal: see
Duca Community Credit Union Ltd. v. Giovannoli
(2001), 142 O.A.C. 146 (C.A.), per

MacPherson
    J.A. at para. 11.

[11]

Hryniaks principal ground of appeal is that the
    motion judge exceeded the scope of what a judge is permitted to do on a motion
    for summary judgment by using the powers under rule 20.04(2.1) of weighing
    evidence, evaluating credibility and drawing inferences as though he were
    exercising the powers and jurisdiction of a trial court judge, rather than
    using the powers as tools to determine whether there was a genuine issue
    requiring a trial.

[12]

To deal with the merits of Hryniaks primary ground
    of appeal, it is necessary for me to briefly consider the history and general
    scope of the amendments to Rule 20.

[13]

Prior to the new amendments to the
Rules of Civil Procedure
which came into
    effect on January 1, 2010, Rule 20 provided that a party bringing a motion for
    summary judgment had the onus of showing that there was no genuine issue for
    trial. In support of the motion, the party could file supporting affidavit
    evidence. The responding party could not rest on a mere denial of the
    allegations but had to set out specific facts showing that there was a genuine
    issue for trial. The former rule was, however, interpreted by the Court of
    Appeal as not allowing a judge to assess credibility, weigh evidence, or draw
    factual inferences in determining whether there was a genuine issue for trial.
    See
Aguonie v. Galion

Solid Waste Material Inc.
(1998), 38 O.R.
    (3d) 161 (C.A.). As a result, a trial was required whenever there was any
    genuine issue with respect to material facts, no matter how weak the issue. See
Dawson v. Rexcraft Storage &Warehouse
    Inc.
(1998), 164 D.L.R. (4
th
) 257 (Ont. C.A.).

[14]

On June 28, 2006, the Attorney General of Ontario
    asked the Honourable Coulter Osborne, former Associate Chief Justice of
    Ontario, to lead the Civil Justice Reform Project for the purpose of proposing
    ways to make the civil justice system more accessible and affordable in the
    province. Mr. Osbornes report was released on November 20, 2007: see the
    Honourable Coulter A. Osborne,
Civil Justice Reform Project: Summary of Findings
    & Recommendations
(Ministry of the Attorney General, 2007)
(the Osborne Report). Commenting on the Court of Appeals decisions under
    Rule 20, he wrote at p. 35: [F]rom my reading of the Court of Appeals
    decisions on summary judgment, it is how the court has confined the scope of
    the powers of a motion judge or master under Rule 20, not the no genuine issue
    for trial test itself that has limited the effectiveness of the rule. The Osborne Report recommended that
    Rule 20 be amended to allow a motion judge to weigh evidence, evaluate
    credibility and draw any reasonable inference from the evidence and documents
    filed in order to determine whether an issue should proceed to trial.

[15]

Mr. Osborne also recommended that Ontario adopt a
    new mini-trial or summary trial mechanism, similar to Rule 18A (now Rule 9-7)
[1]
of British Columbias
Supreme Court Civil
    Rules
, B.C. Reg. 168/2009. Rule 18A(11) provided:

On the hearing of a summary trial application, the
    court may

(a) grant judgment in favour of any party, either
    on an issue or generally, unless

(i) the court is
    unable, on the whole of the evidence before the court on the application, to
    find the facts necessary to decide the issues of fact or law, or

(ii) the court is of
    the opinion that it would be unjust to decide the issues on the application,

(b) impose terms respecting enforcement of the
    judgment, including a stay of execution, and

(c) award costs.

[16]

Mr. Osborne commented on this concept of a summary
    trial at p. 36 of his report:

As rule 20 matters now stand, the result of a rule 20
    motion is binary; the motion is granted and the action ends, or it is dismissed
    and the parties are on the way to a full trial. In my view, there should be
    more flexibility in the system.
Where the
    court is unable to determine the motion [for summary judgment] without hearing
    viva voce evidence on discrete issues, the rules should provide for a
    mini-trial where witnesses can testify on these issues in a summary fashion,
    without having to wait for a full trial.
This can be done in British
    Columbia through rule 18A. It could be done in Ontario through a similar rule,
    i.e., by amending rule 20. [Emphasis added]
[2]

[17]

The recommendations in the Osborne Report were
    considered and, subject to small modifications, approved by the Civil Rules
    Committee. They form the basis of the present rule. The new summary judgment
    rule in Ontario now provides:

Disposition of Motion

20.04 (2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine
    issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim
    determined by a summary judgment and the court is satisfied that it is
    appropriate to grant summary judgment.

[18]

Rule 20.04 now enables a court to grant summary
    judgment where there is no genuine issue
requiring
a trial with respect to a claim or a defence (emphasis added). This replaces
    the former wording of no genuine issue for trial. The use of the words
    requiring a trial is indicative that the court may still grant summary
    judgment where there is an issue on the merits that, with the exercise of its
    powers, the court can resolve. This is similar to British Columbias Rule 18A,
    which allows the court to grant judgment on an issue of fact or law on the merits
    where there is sufficient evidence before the court to find the facts necessary
    to decide the issue.

[19]

The new amendments also bestow new powers to a
    summary judgment motion judge to assist him or her in determining whether the
    action should proceed to trial.
[3]
Rule 20.04(2.1) provides:

In determining under clause (2) (a) whether there is a
    genuine issue requiring a trial, the court shall consider the evidence
    submitted by the parties and, if the determination is being made by a judge,
    the judge may exercise any of the following powers for the purpose, unless it
    is in the interest of justice for such powers to be exercised only at a trial:


1.
Weighing
      the evidence,

2.
Evaluating
      the credibility of a deponent,

3.
Drawing
      any reasonable inference from the evidence.


[20]

I note that a summary judgment motion judge may
    exercise these powers unless it is in the interest of justice for such powers
    to be exercised only at a trial. This exception echoes rule 18A(11)(ii) of
    British Columbias summary trial rule, which provides that the court may not
    grant summary judgment if it is of the opinion that it would be unjust to
    decide the issues on the application.

[21]

Finally, the vehicle of the mini-trial recommended
    in the Osborne Report was adopted in rule 20.04(2.2):

Oral Evidence (Mini-Trial)

(2.2) A judge may, for the purposes of exercising any
    of the powers set out in subrule (2.1), order that oral evidence be presented
    by one or more parties, with or without time limits on its presentation.

[22]

The effect of the 2010 amendments to Rule 20 was
    discussed by Karakatsanis J. in
Cuthbert v.
    TD Canada Trust,
2010
    ONSC 830
, and in
Hino Motors Canada Ltd. v.
    Kell,

2010 ONSC 1329
.  In
Cuthbert
, Karakatsanis J. suggests that
    the principles from
Dawson v. Rexcraft

Storage
still have force.  She

stated at para. 11:

The decision itself or the test for
    summary judgment -whether there is a genuine issue of material fact that
    requires a trial for its resolution as first articulated in
Irving Ungerman Ltd. v. Galanis
(citation omitted) - has not changed. However, the cases that have since
    restricted a motions judge in assessing credibility, weighing evidence or
    drawing factual inferences have been superseded by the powers set out in the
    new Rule.
Both the analytical review and the availability of oral
    evidence have considerably broadened the motions judge's tools in a summary
    judgment motion. Nonetheless, although a motions judge may weigh the evidence,
    evaluate the credibility and draw reasonable inferences from the evidence,
it is not the role of the motions judge to make
    findings of fact for the purpose of deciding the action on the basis of the
    evidence presented on a motion for summary judgment. This change in the Rule
    does [not?] substitute a summary trial for a summary judgment motion. Although
    a summary judgment motion may, if the motions judge so directs, resemble a
    summary trial, the test and the decision are different (See
Dawson v.
    Rexcraft Storage and Warehouse Inc.
(citation omitted). The motions judge
    must take "a hard look" at the evidence to determine whether it
    raises a genuine issue requiring a trial. (See
Rozin
    v. Ilitchev
(2003), 66 O.R. (3d) 410 at para. 8 (C.A.)) New Rule
    20.04 provides the judge with more tools to do so. [Emphasis added.]

[23]

An arguably more expansive reading of the new Rule
    20 was adopted by Perell J. in
Healey v.
    Lakeridge Health Corp.
,

2010
    ONSC 725, a decision referred to by the motion judge. Perell J. states at
    paras. 22-23 and 29:

Rule 20.04 (2.1) is a statutory reversal of the case
    law that had held that a judge cannot assess credibility, weigh evidence, or
    find facts on a motion for summary judgment. Further under rule 20.04(2.2), a
    judge for the purpose of weighing the evidence, evaluating credibility, and
    drawing inferences may order that oral evidence be presented by one or more
    parties, with or without time limits on its presentation.

Placed in the context of the other amendments to Rule
    20, the purposes of the change from no genuine issue for trial to no genuine
    issue requiring a trial in the test for summary judgment are: (1) to make
    summary judgment more readily available; and (2) to recognize that with the
    courts expanded forensic powers, although there may be issues appropriate for
    trial, these issues may not require a trial because the court has the power to
    weigh evidence on a motion for summary judgment.

.

It is informative to note that rule 20.04(2.1)
    envisions that the motions judge may use the powers of a trial judge unless it
    is in the interest of justice for such powers to be exercised only at a trial.
    The reference to the interests of justice suggests that the motions judge will
    have to assess whether the search for truth and justice requires the forensic
    machinery of a trial.

[24]

In a more recent decision,
Canadian Premier Life Insurance Co. v. Sears Canada
    Inc
.,
2010 ONSC 3834
,
    Pepall J. refers to
Cuthbert
and
Hino Motors
and indicates her disagreement
    with the view expressed by Karakatsanis J.  that the judge hearing a motion for
    summary judgment should not make findings of fact for purposes of deciding the
    action.  After reviewing the recommendations in the Osborne Report, Pepall J.
    held as follows at para. 68 (footnotes omitted):

[C]onsistent with the language of
    Rule 20, a motions judge is not precluded from making findings of fact for the
    purpose of deciding the action on the basis of the evidence presented on a
    motion for summary judgment.
A judge is now able to weigh the
    evidence, evaluate credibility and draw reasonable inferences from the evidence
    and order oral evidence. Implicit in these powers is the ability to make a
    finding of fact. If a motions judge using these powers can safely make a
    determination without the need for a trial, he or she is authorized to do so.
    This view is consistent with that expressed by D.M. Brown J. in
Lawless v. Anderson
: ... in a
    very real sense Rule 20.40(2.1) vests in a motion judge the powers typically
    exercised by a trial judge and ... the fact-finding restrictions placed on
    judges under old Rule 20 have been removed, or at least significantly loosened.
    [Emphasis added.]

[25]

Having set out the history and wording of the
    amendments to Rule 20, as well as  the two streams of jurisprudence, I turn to
    the appellants primary ground of appeal, namely, that the motion judge
    exceeded the scope of Rule 20 in granting summary judgment, rather than
    ordering a trial.  Of course, the issue for present purposes is not whether I
    would give effect to that ground of appeal, but only whether this ground is
    utterly devoid of merit.

[26]

In the present case, it is at least arguable the
    motion judge approached his task as being more along the lines of conducting a
    summary trial in which he made a host of factual findings for the purpose of
    deciding the action on the basis of the evidence before him. As acknowledged by
    the motions judge at para. 63, Hryniak vigorously denie[d] the suggestion he
    was involved in a sham and he pointed to others as being responsible for the
    respondents losses.  The motions judge observed at para. 74: Stopping here,
    the task facing the Mauldin group and Bruno on a motion for summary judgment
    seems overwhelming.  However, the motion judge went on to closely scrutinize
    the voluminous evidence and reached a determination that Hryniak was
    responsible for defrauding the Mauldin group and Bruno.

[27]

This approach to a motion for summary judgment may
    potentially be consistent with the more expansive scope of the rule as
    interpreted by Perell J. in
Healy
and Pepall J. in
Canadian Premier Life
.
    On the other hand, the above passage from
Cuthbert
could be taken to possibly support the appellants argument that the motion
    judges fact-finding mission was more extensive, and was conducted for a
    different purpose, than how the fact-finding function in the amended Rule 20
    should be performed.

[28]

Our court has not yet commented on the scope and
    meaning of the amended rule, or the extent to which it is open to a judge on a
    summary judgment motion to make findings of fact for the purpose of deciding
    the action based on the evidence presented on a motion for summary judgment. 
    Thus, I do not think it can safely be said that there is so little merit to
    this ground of appeal that the appellants right to appeal should be denied.

[29]

Hryniak also raises three further grounds of
    appeal: (1) that summary judgment ought not to be granted where fraud is
    alleged; (2) that the motion judge misinterpreted the rule in
Browne v. Dunn
(1893), 6 R. 67 (H.L.); and
    (3) that his findings of fact reveal overriding and palpable errors. In light
    of my conclusion that there is sufficient merit in the first ground, it is
    unnecessary to address the other grounds, the merits of which may be considered
    by the panel hearing the appeal.


v. Considerations
    relating to the
justice of
    the case

[30]

The respondents raise serious concerns relating to
    Hryniaks conduct in encumbering his interest in his family home following the
    release of the motion judges reasons for judgment. They submit that Hryniak`s
    motion to extend time to perfect his appeal is designed to delay the proceeding
    and to frustrate their efforts to enforce the court order against him to
    recover their losses. This is a reasonable submission, given Hryniak`s actions
    leading up to this motion as well as the undertaking given in his affidavit in
    support of this motion.

[31]

Hryniaks affidavit states:

My spouse and I have no interest in or intention to
    sell our home.  Our family resides in Toronto and our life and assets are here,
    in Ontario.  Given the nature of the Plaintiffs motions, the fact that my
    spouse and I have no interest in alienating title to our property at this time,
    and so to allay any concerns that the Plaintiffs may have (although these
    concerns are wholly unsubstantiated), I will undertake not to transfer, divest
    or dissipate my title to the matrimonial home pending the hearing of the
    plaintiffs motions.

[32]

When Hryniak swore this affidavit he had already
    dealt with the matrimonial home located at 66 Cotswold Crescent, Toronto. On
    December 3, 2010, he transferred ownership of the matrimonial home from joint
    tenancy to tenancy in common and charged his interest in the matrimonial home
    in the principal amount of $1,000,000 in favour of his wife, Suzanna Mandryk.
    Hryniak says the charge was granted as security for his wife pursuant to an
    agreement dated December 1, 2010, in recognition of his indebtedness to her for
    subsidizing his legal fees.

[33]

Hryniak deposes that he did the transfer [p]rior
    to any knowledge of the Plaintiffs motions, on my or my former counsels
    behalf. While that may be so, before the transfer was effected and the
    indebtedness registered on title, Hryniaks former solicitors forwarded to him
    a letter dated November 5, 2010, from counsel for the respondents requesting
    that he agree in writing and that his counsel undertake that he would not deal
    with his interest in the property.

[34]

Presumably this request was made because, pursuant
    to rule 60.07, in order to enforce the judgment by requisitioning a writ of
    seizure and sale without leave of the court, the respondents had to file a copy
    of the order
as entered
. As the
    order had not yet been settled, it could not be entered.

[35]

Following receipt of this letter, Hryniaks former
    solicitors advised that he did not own the property, his wife did; they then
    filed his notices of appeal, dated November 8, 2010, which had the effect under
    rule 63.01 of automatically staying the orders for payment by him to the
    respondents until the disposition of the appeals. On November 10, however, they
    advised that Hryniak actually held the property in joint tenancy with his wife.
[4]

[36]

As I have indicated, after Hryniak filed his
    notices of appeal staying enforcement of the judgments against him, he gave a
    charge on the matrimonial home to his wife for $1 million on December 3, 2010.
    After this, on December 6, 2010, the order was finally settled. A Basic
    Residential Market Value Report from the Municipal Property Assessment
    Corporation obtained by counsel for the respondents values the property at
    $1,905,000, which suggests that Hryniaks undivided joint interest in the
    property was worth $952,500.

[37]

The undertaking offered by Hryniak only deals
    with his interest in the matrimonial home pending disposition of the
    respondents motions. It is not an undertaking that he will refrain from
    dealing or disposing of all assets he may have pending the outcome of his
    appeals.

[38]

On December 17, 2010, Rosenberg J.A. adjourned the
    appellants motion and the respondents cross-motions that are now before me. 
    At that time, he lifted the automatic stay on enforcing judgment pending appeal
    for two purposes: (1) to permit the respondents to lodge the judgment against
    the matrimonial home; and (2) to allow them to examine Hryniak in aid of
    execution.

[39]

The examination ordered by Rosenberg J.A. was held,
    albeit not to the satisfaction of either the Mauldin group or Bruno. Hryniak
    refused to answer a number of questions and the propriety of those refusals has
    yet to be determined. At this point, Hryniaks only known asset is the
    matrimonial home in which he continues to enjoy living.

[40]

Bruno and the Mauldin group assert that they have
    been prejudiced by Hryniaks actions. In the event that Hryniak has other
    assets, it is apparent that the limited undertaking offered does not cover
    them. Bearing in mind the summary judgment against Hryniak, his dealing with
    the matrimonial home in the face of his creditors request that he not do so
    pending settlement of the order, the self-interested preference he gave to his
    wife as a creditor, the lack of transparency concerning his financial position,
    and the careful wording of his undertaking, the risk of prejudice to the
    respondents in allowing the appeal to proceed is very real. Subject to any
    conditions the court may impose as a reasonable term for granting the
    extension, extending the time within which to perfect the appeal would give
    more time to Hryniak to encumber or dispose of his assets.

[41]

However, such risk to the respondents may be
    minimized if certain conditions are imposed on Hryniak. Rule 3.02(1) provides
    that the court may extend the time prescribed by the rules
on such terms as are just
(emphasis
    added). Having regard to the respondents cross-motions, I believe that any
    prejudice arising from allowing Hryniak to proceed with his appeal may be
    remedied by requiring him to pay an amount reflecting his undivided joint
    interest in his matrimonial home. This would be a just balance between
    Hryniaks right to an appeal and the respondents interest in ensuring that
    they may enforce the motion judges court order if Hryniak loses his appeal.

Conclusion

[42]

Having regard to all of the factors governing the
    test for extending the time to perfect an appeal, I would grant the appellants
    motion to extend time for perfection while also imposing terms. Those terms
    are: (1) that Hryniak post an irrevocable letter of credit with the court in the
    amount of $950,000; and (2) that he provide the court with his written
    undertaking not to encumber or dispose of any assets he may have pending the
    outcome of his appeals.  The letter of credit should be made payable to the Accountant
    of the Superior Court of Justice, and the undertaking should be addressed to
    the Registrar of the Court of Appeal for Ontario.

[43]

Provided that the terms above are complied with on
    or before February 3, 2011, I order that the time to perfect the appeals be
    extended until February 28, 2011. If the terms are not complied with, the
    motion to extend the time to perfect the appeals  will be dismissed on February 3,
    2011, without further notice to Hryniak.

[44]

Given that these terms in substance reflect the
    relief sought by the respondents in the cross-motions, I would dismiss those
    motions.

Costs

[45]

In the circumstances, I make no order as to costs.

RELEASED:  January 24, 2011





[1]
British Columbias
Supreme Court Civil Rules
,
    B.C. Reg. 221/90, were recently amended. The new rules, B.C. Reg. 168/2009,
    came into force on July 1, 2010.



[2]
British Columbias Rule 18A did not itself provide that the court may order
    viva voce evidence at a summary trial. Rather, rules 52(8)(a) and (b) (now
    rules 22-1(4)(a) and (b)) of the
Supreme
    Court Civil Rules
permitted the court to order the examination of a
    witness or party, or the cross-examination of a deponent, before the court in
    chambers proceedings. Pursuant to rule 52(2)(c), chambers proceedings included
    summary trials under Rule 18A.



[3]
It should be noted that only a judge, and not a master, may exercise these new
    powers.



[4]
Hryniak did not attend an examination in aid of execution in the Mauldin Action
    scheduled on November 17, 2010, although duly served through his lawyer with
    the notice of the examination. However, because the execution of the judgment
    was stayed when Hryniak filed the notice of appeal on November 8, 2010, and an
    examination in aid of execution is considered to be enforcement of the
    judgment, it appears he did not have to attend the examination.


