





CITATION:
Giardino
(Re), 2011 ONCA 312



DATE: 20110420



DOCKET: M39688  M39269  C52277



COURT OF APPEAL FOR ONTARIO



Cronk, Gillese and MacFarland JJ.A.



BETWEEN



In the Matter
          of the Bankruptcy of
Nicolino
Giardino of the City of
          Guelph in the County of  Wellington in the
          Province of Ontario












Jeff  Van
Bakel
, for the appellant/responding party Anthony M.
          Speciale



Melvyn L. Solmon and Raffaele Sparano, for the former bankrupt
          (respondent) Nicolino Giardino



Harry Van Bavel, for the trustee



Heard and released orally:
April 14, 2011



Motion to dismiss the within appeal and cross-motion for leave
          to appeal and other relief.



ENDORSEMENT



[1]

There are two motions before us: a motion by the
    respondent to dismiss the within appeal and for related relief, and a
    cross-motion by the appellant for leave to appeal, if necessary.

[2]

In his Notice of Appeal, the appellant purports to
    appeal three costs endorsements of the Honourable Mr. Justice Little dated May
    27, 2010, July 17, 2008 and September 9, 2009.  The next 11 paragraphs of the Notice of Appeal set out the incidental
    relief requested resulting from the setting aside of those three orders.

[3]

This appeal arises from a bankruptcy that began in
    November 1998.  Prior to the respondents
    assignment in bankruptcy, the appellant was the lawyer for the bankrupt
    Giardino, members of Giardinos family and an associated company.

[4]

The appellant represented Giardino in proceedings
    against his former business partner, Pina
Marfisi
,
    and it was the loss of those proceedings that led Giardino to make an
    assignment in bankruptcy on November 12, 1998.  The appellant and
Marfisi
were appointed Inspectors
    of
Giardinos
estate in bankruptcy.

[5]

Giardinos discharge hearing was set to proceed on September
    28, 1999.  The appellant filed a Notice
    of Opposition to the discharge on the basis that Giardino had failed to
    disclose all his actual or potential income.  Just prior to that date, the appellant also delivered a Motion to Annul
    purportedly on behalf of the bankrupt estate. He conducted lengthy and
    protracted examinations of Giardino, members of his family and others in 1999
    and 2000.  The Motion to Annul was
    scheduled and adjourned on numerous occasions until 2008.  Each side blames the other for delay.

[6]

In 2007, an order required the appellant to bring on
    his motion forthwith, but he failed to do so. The Trustee attempted to schedule
    the discharge hearing in 2008, but the appellant served his Motion to
Annul
with claims for other relief, including an order to
    remove the Trustee and an order for contempt against Giardino. Again, the
    appellant argued his motion was based on his knowledge that Giardino had not
    made full disclosure. The motion was scheduled for July 16, 2008.

[7]

Prior to the hearing, Giardino retained counsel and
    served a cross-motion to have the appellant removed as an Inspector and to have
    the discharge hearing immediately following the Motion to Annul.

[8]

On return of the motions, the appellant attempted to
    introduce a new affidavit of Marfisi and sought an adjournment in order to
    cross-examine Giardino on his affidavit.

[9]

On July 17, 2008, Little J. refused the adjournment
    request, dismissed the Motion to Annul, ordered the motion for other relief to
    be set before the Deputy Registrar on August 19, 2008, to be disposed of, if
    necessary, depending on the outcome of the discharge hearing set for that same
    date and ordered costs payable to Giardino by the appellant of the denied
    request for adjournment and the dismissed Motion to Annul on a substantial
    indemnity basis unless otherwise ordered by the Deputy Registrar. On Giardinos
    cross-motion, he ordered that the discharge hearing be adjourned to the Deputy
    Registrar to proceed on August 19, 2008, without further adjournment, that the
    appellant, on consent, resign as an Inspector and that the appellant pay costs
    to Giardino of the motion to remove the appellant fixed in the sum of $750.00
    (the first
Little
order).

[10]

The appellant purported to appeal the first
Little
order and took the position that filing the appeal
    stayed the discharge hearing ordered to proceed August 19, 2008.

[11]

Giardino moved before this court to deal with the stay
    issue and took the position that leave to appeal was required under s. 193 of
    the
Bankruptcy and Insolvency Act
.
    The appellant then brought a motion for leave to appeal if necessary.

[12]

The motion came on before Watt J.A. on August 14,
    2008.  He held there was no stay because
    the relief sought did not fall under s. 193(a) through (d) of the
Bankruptcy and Insolvency Act
and,
    accordingly, the mandatory stay provisions of s. 195 did not apply. He denied
    leave to appeal and ordered costs to Giardino payable by the appellant in the
    sum of $7,500.00.  There was no motion to
    set aside or vary the order of Watt J.A.  an order now approaching its third
    anniversary. The time for bringing such a motion is long past. The order of
    Watt J.A. finally disposes of any appeal in relation to the first
Little
order.

[13]

The second order of Little J. made September 9, 2009,
    fixed costs against the appellant in favour of Giardino in relation to the Motion
    to Annul in the sum of $59,771.09 and in relation to the additional relief in
    the sum of $7,718.97, both on a substantial indemnity basis (the second
Little
order).

[14]

The appellant attempted to appeal the second
Little
order, but his appeal was properly rejected by the
    Deputy Registrar of the Court of Appeal because he had attempted to include an
    appeal of the July 17, 2008 order, which appeal had been finally disposed of by
    the order of Watt J.A. on August 14, 2008. The appellant did not submit any
    amended materials. The time for appealing the second
Little
order is also long past. While there is some evidence of the appellants
    intention to appeal this order, within time, there is no satisfactory
    explanation for the extraordinary delay. In our view, even if an application to
    extend the time to appeal was made, the test for such relief is not met.

[15]

Accordingly, for these reasons, we would allow the
    motion to dismiss in respect of the first two
Little
orders and dismiss the appeal in relation thereto.

[16]

Finally, we turn to the order of May 27, 2010, which
    required the appellant to pay costs fixed in the sum of $13,000.00 to Giardino
    in respect of the costs assessment hearing held on September 9, 2009 (the third
Little
order). This appeal was filed on time and
    arguably falls within s. 193 of the
Bankruptcy
    and Insolvency Act
. While it is arguable that leave to appeal is not
    required (see
Rockwell Developments
    Limited v. Newtonbrook Plaza Ltd.
, [1972] 3 O.R. 199-214 (C.A.) and
Elliot v. Toronto (City)
(1999), 43 O.R.
    (3d) 392 (C.A.)), in the event that it is, we would grant leave.  We would
therefore
dismiss that part of the motion to dismiss that relates to the third Little
    order dated May 27, 2010 and permit that aspect of the appeal to continue. Put
    another way, the appeal may continue only in respect of the third
Little
order.

[17]

As to the motion for security for costs, the appellant
    has paid none of the many costs orders made against him throughout these
    lengthy and protracted proceedings.  Having dismissed the appeal in relation to the
    orders of July 17, 2008 and September 9, 2009, those orders are now finally
    resolved and the costs awarded are now payable.  Those orders awarded costs of $750 and $67,490.06 respectively and
    together total $68,240.06. The order of Watt J.A. required costs to be paid in
    the sum of $7,500.00, making the total owing $75,740.06.

[18]

The motion for security for costs seeks the sum of
    $75,000, being $50,000 for the costs below and $25,000 for the costs of the
    appeal, which is a reasonable sum in our view. Unless the sum of $75,000 is
    paid into court within 30 days, that part of the appeal which remains shall be
    dismissed.

[19]

An order shall therefore issue in accordance with these
    reasons, granting the motion to dismiss in part and the cross-motion in part.

[20]

The respondent Giardino is entitled to his costs of the
    motion to dismiss, net of costs in Motion No. M39688, the motion brought on
    behalf of the
appellant,
and inclusive of costs on the
    motion before Juriansz J.A. of this court, in the aggregate amount of $20,000,
    inclusive of disbursements and all applicable taxes.

E.A. Cronk J.A.

E.E. Gillese J.A.

J. MacFarland J.A.


