



COURT OF APPEAL FOR ONTARIO

CITATION: Thistle v. Schumilas, 2019 ONCA 566

DATE: 20190704

DOCKET: M50375/M50377 (C66432)

Hourigan, Paciocco and
    Fairburn JJ.A.

BETWEEN

Jason
    Michael Thistle

Plaintiff

(Respondent / Responding
    party)

and

James
    Schumilas, Jr.
, WCS Financial Services, Cinaber Financial Inc. and
    Bridgeforce Financial Group Inc.

Defendants

(
Appellant / Moving
    party
)

Marie Sidney, for the moving party

Sean Zeitz, for the responding party

Heard and released orally: June 28, 2019

REASONS FOR DECISION

[1]

The underlying claim in this proceeding is for damages arising from the
    denial of payment under a life insurance policy. Mr. Thistle and his partner
    applied for a life insurance policy with the assistance of Mr. Schumilas, an
    insurance agent. Mr. Thistles partner passed away and the insurer denied
    coverage. In addition to suing the insurer, Mr. Thistle also sued Mr. Schumilas
    for negligence.

[2]

Mr. Schumilas moved for summary dismissal of the action on the basis
    that Mr. Thistle lacked capacity to bring the claim, arguing that the cause of
    action vested in Mr. Thistles trustee in bankruptcy. Mr. Thistle moved for an
    order granting him standing to bring the action. Justice Braid dismissed Mr.
    Schumilas motion and granted Mr. Thistle an order
nunc pro tunc

for
    standing to bring the action notwithstanding his assignment in bankruptcy and
    subsequent discharge (the main order). He also granted Mr. Thistle leave to
    amend the statement of claim and other procedural orders (the ancillary
    orders).

[3]

Mr. Schumilas appealed to this court. There is a dispute between the
    parties whether the main order was made pursuant to the
Bankruptcy and
    Insolvency Act
(the 
BIA
) or the motion judges inherent
    jurisdiction. Mr. Thistle also took the position that the ancillary orders
    ought to have been appealed to the Divisional Court, with leave of that court.
    Mr. Thistle moved for a stay of the appeal. Mr. Schumilas cross-moved for a
    declaration that the appeal was properly brought under the
Courts of
    Justice Act
, and in the alternative, a motion for an order granting leave
    to extend time to appeal under the
BIA
, and an order granting leave
    under s. 193(e).

[4]

Miller J.A. determined that the main order was made pursuant to the
    motion judges inherent jurisdiction, as it was a civil action for damages
    brought years after Mr. Thistle was discharged from bankruptcy. With respect to
    the ancillary orders, Miller J.A. determined these were properly within the
    jurisdiction of the Divisional Court. Should leave be granted by that court, he
    ruled, a motion could be brought to join them together with the main appeal.

[5]

Mr. Thistle now brings a motion for an order setting aside the order of
    Miller J.A. and dismissing the appeal. Mr. Schumilas brings a cross-motion for
    an order, should Miller J.A.s order be overturned, extending the time to serve
    a notice of appeal and an application for leave to appeal pursuant to the
BIA
,
    and an order declaring that leave to appeal under s. 193 of the
BIA
is
    not required or, in the alternative, an order granting leave to appeal pursuant
    to s. 193(e).

[6]

We are of the view that Miller J.A. did
    not err in his interpretation of Braid J.s order. There is nothing in that
    order that indicates that she was purporting to rely on the
BIA
. This was a civil proceeding, not a bankruptcy proceeding
    and not an action authorized by the
BIA
. In the circumstances of this case, Miller J.A. did not
    err in finding that the decision was not rendered pursuant to the power granted
    to a motion judge under the
BIA
.

[7]

The motion to reconsider the order of
    Miller J.A. is dismissed. It is unnecessary to consider the cross-motion.

[8]

Costs are to Mr.
Schumilas
in the amount of $3,700, inclusive of HST and
    disbursements.

C.W. Hourigan J.A.

David M. Paciocco J.A.

Fairburn J.A.


