



COURT OF APPEAL FOR ONTARIO

CITATION:
    James Henry Ting (Re), 2021 ONCA 622

DATE: 20210914

DOCKET:
    M51957 (C68764)

Lauwers
    J.A. (Motion Judge)

In
    the Matter of the
Bankruptcy and Insolvency Act
,

R.S.C.
    1985, c. B-3, as amended

And
    in the Matter of a Proceeding in the Hong Kong Special

Administrative
    Region Re: James Henry Ting (in Bankruptcy)

Application
    of Cosimo Borrelli and Jacqueline Walsh of

Borrelli
    Walsh Limited under Section 272 of the
Bankruptcy

and
    Insolvency Act
, R.S.C., 1985, c. B-3, as amended

Andrew Rogerson and Arash Jazayeri, for
    the moving party, Andrew Henry Ting

Ilan Ishai and Adam Zur, for the
    responding parties, Cosimo Borrelli and Jacqueline Walsh

Heard: September 7, 2021 by video conference

REASONS
    FOR DECISION

[1]

This is an
application for leave to appeal under
    s. 193(e) of the
Bankruptcy and Insolvency Act
, R.S.C. 1985
, c. B-3, r. 31(2) of the
Bankruptcy
    and Insolvency General Rules
,

C.R.C., c. 386,
and r.

61.03.1 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194
. The order sought
    to be appealed found the applicant, Andrew Henry Ting, in contempt of court for
    failing to attend at an examination as required by the order of Penny J. dated
    January 15, 2019, in aid of the foreign bankruptcy of his father, James Henry
    Ting. For the reasons that follow, the motion is dismissed.

The Factual Background

[2]

The background facts were set out by the motion judge who
    dismissed Andrew Henry Tings request for a stay of the bankruptcy proceeding
    dated October 5, 2020 (2020 ONSC 5955). The Superior Court recognized
the bankruptcy proceeding in Hong Kong against Andrew Henry Tings
    father, James Henry Ting, as the foreign main proceeding" under s. 268 of
    the
BIA
.

The recognition order was granted on October 6, 2017
    and it recognized the Trustees as a foreign representative" under s. 268
    of the
BIA.

[3]

On August 18, 2018, the Trustees moved to
    enforce a letter of request from the Hong Kong Court requesting assistance to
    require Andrew Henry Ting to be examined and to produce documents. Penny J.
    made the requested order on January 15, 2019. The order required Andrew Henry
    Ting to produce certain documents within 14 days and to attend at any
    examination. He unsuccessfully attempted to appeal Penny J.s order to this
    court.

[4]

The contempt proceeding that is the subject of
    this proposed appeal (2020 ONSC 5976) was heard immediately after the
    stay motion, and the reasons for both matters were issued on the same day.

The Motion for Leave to Appeal

[5]

The parties agree that the test for leave to
    appeal under s. 193 (e) of the
BIA
was set out by Blair J.A. in
Business
    Development Bank of Canada v. Pine Tree Resorts Inc.
, 2013 ONCA 282, 115
    O.R. (3d) 617. The three-part test is whether: the proposed appeal raises an
    issue that is of general importance to the practice in bankruptcy/insolvency
    matters or to the administration of justice as a whole, and is one that the
    court should therefore consider and address; it is
prima facie
meritorious;
    and it would not unduly hinder the progress of the bankruptcy/insolvency
    proceedings.

[6]

Andrew Henry Ting raises two substantive issues
    to be pursued in the proposed appeal: the refused recusal motion; and personal
    service of the contempt proceedings on him.

The Refused Recusal Motion

[7]

Andrew Henry Ting argues that the motion judge
    erred in failing to recuse herself after hearing damning descriptions of the
    conduct and character of the bankrupt, James Henry Ting, during argument.
    Counsel for the Trustees referred to the bankrupt as a thief, and someone who
    engaged in fraudulent and criminal activity and who demonstrated a
    consistent pattern of disobedience. Counsel for Andrew Henry Ting expressed the
    concern, as he did to the motion judge, that she would be unable to avoid
    imputing his fathers alleged conduct and character to him.

[8]

To this suggestion, the motion judge responded:

[16] The basis for the responding partys
    request for my recusal is his subjective view on how I could be influenced. He
    perceives that what he sees as emotive language and exaggerations regarding the
    Bankrupts character, which could deny him safeguards that would protect him
    from wrongful conviction, could lead to an unfair result for him.

[17] In my view, no informed person, viewing
    the matter realistically and practically, would conclude that a judge would
    impute to the son a negative description of his fathers character, which is
    irrelevant to the determination of the issue at hand. The issue to be
    determined on the Contempt Motion is straightforward: is the responding party
    in breach of the January 15, 2019 Order and if so, should he be found to be in
    contempt? This question can be determined, objectively, on the record.

[9]

There is no merit to the suggestion that the
    motion judge would be unable to disabuse herself of the prosecutors rhetorical
    flourishes. We routinely expect this disposition from judges. The motion judge
    properly instructed herself, and counsel raised nothing in her reasons to
    suggest that she did not meet this expectation.

The Contempt Proceeding

[10]

The second substantive issue is whether the motion judge
erred in law at paras. 38-39 of her decision by dispensing with the
    requirement of r. 60.11(2) that requires personal service on the alleged
    contemnor and not by an alternative thereto, unless the court orders otherwise.

[11]

The parties agree that the test for civil
    contempt was set by the Supreme Court in
Carey v. Laiken
, 2015 SCC 17,

[2015] 2 S.C.R. 79 at paras. 32-35. The
    moving party must prove beyond a reasonable doubt that: a) the order alleged to
    have been breached must state clearly and unequivocally what should and should
    not be done; b) the party alleged to have breached the order must have had actual
    knowledge of it; and c) the party allegedly in breach must have intentionally
    done the act the order prohibits or intentionally failed to do the act the
    order compels.

The governing precedent from this court on the issue of
    personal service, which dovetails with the
Carey
test, is
Susin v.
    Susin
, 2014 ONCA 733, 379 D.L.R. (4th) 308
per
Blair J.A. at
    paras. 2832 and 3336. At para. 28, Blair J.A. noted:

Procedural protections on motions for civil
    contempt are generally strictly enforced. This includes the requirement that
    the materials be served personally on the party sought to be found in contempt:
    see
Rules of Civil Procedure
, r. 60.11(2). However, procedural
    protections that are meaningless in a particular case ought not to trump
    substantive compliance where the purpose of personal service has been met in
    the circumstances and there has been no substantial wrong or miscarriage of
    justice.

[12]

In considering the
Carey
test, the
    motion judge noted, at para. 32:

I am also satisfied that the second prong of
    the test is met. The responding party had actual knowledge of the January 15, 2019
    Order. Though the responding party may not have been served with the January
    15, 2019 Order, actual knowledge may be inferred from the circumstances. The
    responding partys counsel assisted in the drafting of the Order and consented
    to its form and content.

[13]

She added, at para. 37: Further, based on the
    email exchanges between counsel to the responding party and counsel to the
    Trustees, I am satisfied that the responding party had no intention of
    attending the examination, regardless of the pandemic.

[14]

Finally, the motion judge noted, at para. 39:

The Contempt Motion came to the attention of
    the responding party
and he responded to it.
Rule
    60.11 is aimed at ensuring that the alleged contemnor has notice of the
    contempt proceeding. The rule does allow for an alternative to personal service
    by court order. Such court order was not obtained, but I am satisfied that the
    responding party had adequate notice of the Contempt Motion. [Emphasis added.]

[15]

The motion judge knew, as she noted in para. 40,
    that the burden on the Trustees was to prove contempt beyond a reasonable
    doubt. To paraphrase Blair J.A. in
Susin
, there was substantive
    compliance here because the purpose of personal service has been met in the
    circumstances and there has been no substantial wrong or miscarriage of
    justice.

[16]

There is nothing in this matter that rises to
    the level required for leave to be granted as specified in
Pine Tree
    Resorts.
The proposed appeal does not raise an issue that is of general
    importance to the practice in bankruptcy/insolvency matters nor to the administration
    of justice as a whole, and is not one that the court should therefore consider
    and address; there is no
prima facie
merit to the proposed appeal; and
    giving leave to appeal in these circumstances would unduly hinder the progress
    of the bankruptcy/insolvency proceedings.

[17]

It is time for this tiresome cat and mouse game
    to end.

[18]

Costs to the responding parties in the agreed
    amount of $7,500, inclusive of HST and disbursements.

P.
    Lauwers J.A.


