



COURT OF APPEAL FOR ONTARIO

CITATION: Caja Paraguyaya De Jubilaciones Y
    Pensiones Del
Personal De Itaipu Binacional v. Obregon, 2022 ONCA 225

DATE:20220317

DOCKET: C69164

van Rensburg, Nordheimer and
    Harvison Young JJ.A.

BETWEEN

Caja Paraguyaya De Jubilaciones Y Pensiones Del
Personal De Itaipu Binacional

Plaintiff/Moving
    Party (Respondent)

and

Eduardo Garcia Obregon
a.k.a.
Eduardo
    Garcia a.k.a. Eddie Obregon, Claudia Patricia Garcia a.k.a. Patricia Garcia a.k.a.
    Claudia Patricia De Garcia a.k.a. Claudia Santisteban, Ligia Ponciano, Managed
    (Portfolio), Corp, Genesis (LA), Corp.
(Ontario
    Corporation Number 1653094, Genesis (LA), Corp. (Alberta Corporate Access
    Number 2013145921), FC Int, Corp., First Canadian INT, Corp., Union Securities
    Limited, Scott Colwell, Marty Hibbs, Hibbs Enterprises Ltd., Columbus Capital
    Corporation, Antonio Duscio, Leanne Duscio, Leanne Duscio carrying on business as
    The Queen St. Conservatory, Catan Canada Inc., Vijay Paul, Greg Baker, Bradley
    F. Breen, Lou Maraj, 2138003 Ontario Inc., Mackie Research Capital Corporation,
    First Canadian Capital Markets Ltd., First Canadian Capital Corp, FC Financial
    Private Wealth Group Inc., Jason C. Monaco, Daniel Boase, Paolo Abate, Nikolaos
    Stylianos Tsimidis, Genesis Land Development Corporation, Limited Partnership
    Land Pool (2007),
and GP LPLP 2007 Inc.

Defendants/Responding Party (Appellants)

Justin W. Anisman, for appellant, Antonio
    Duscio

John De Vellis and Jacqueline King, for
    the respondents

Heard: March 10, 2022 by video conference

On
    appeal from the order of Justice Markus Koehnen of the Superior Court of
    Justice, dated February 5, 2021, with reasons at 2021 ONSC 632.

REASONS FOR DECISION

[1]

Mr. Duscio appeals from the order of the motion judge finding him in
    contempt. At the conclusion of the hearing, we dismissed the appeal with
    reasons to follow. We now provide our reasons.

[2]

In February 2021, the appellant was found guilty of several acts of
    contempt for disposing of assets contrary to the non-dissipation order of
    Dunphy J., dated May 2018. He appeals on the basis that the motion judge erred
    in fact and in law.

[3]

A brief summary of the factual background will suffice.

[4]

In April 2018, the appellant was found liable
    for defrauding the respondent, a Paraguayan pension fund:
Caja Paraguaya de
    Jubilaciones Y Pensiones Del Personal De Itaipu Binacional v. Garcia
,

2018
    ONSC 5379. In May 2018, Dunphy J. issued a non-dissipation and disclosure order
    which froze the appellants assets worldwide (but for his employment income) and
    directed him to swear an affidavit respecting all of his 
current and
    historical
worldwide assets, whether in [his] own name or not, and whether
    solely or jointly owned (emphasis in original). In December 2018, Dunphy J.
    convicted the appellant of contempt of court for specific violations of the
    non-dissipation order and sentenced him to 12 months in jail:
Garcia
, 2018
    ONSC 7771. This was the appellants first conviction for contempt of the
    non-dissipation order. He was released on parole in November 2019 after serving
    seven months of his sentence.

[5]

This appeal arises from the respondents second
    motion to have the appellant found in contempt of court for violating the
    non-dissipation and disclosure order. The respondents allege that the appellant
    engaged in additional acts of contempt by misleading Dunphy J. and by dissipating
    assets while in jail or while on parole for his first conviction of contempt.

[6]

The appellant argues that the motion judge
    committed errors of law as well as palpable and overriding errors of fact. We
    do not agree.

[7]

The first argument is that the motion judge
    erred in finding the appellant in contempt for failing to disclose his
    beneficial interest in two life insurance policies: the Vealey and Lovell
    policies. The appellant argues that the motion judge erred in law by finding
    him in contempt even though the policies were not specifically pleaded. He also
    contends that the Vealey policy did not exist at the time the appellant was
    compelled to swear the April 2, 2019 affidavit because it had matured in 2014.

[8]

There is no merit to this argument. The
    non-dissipation order refers to any assets, whether solely or jointly owned,
    wherever situated in the world. Clearly, these terms include the policies. The
    order further required the appellant to disclose 
current and
    historical
worldwide assets, whether in [his] own name or not, and
    whether solely or jointly owned (emphasis in original). Evidence that he no
    longer had an interest in a policy that had matured as of April 2, 2019 does
    not respond to the fact that the appellant had not disclosed a historical asset
    that, on the evidence, had a total value of $1.7 million, of which the
    appellant had already received $500,000 from the Vealey policy. There is no
    question that the Lovell policy existed and was not disclosed at the time the
    affidavit was sworn. The fact that this was not pleaded as a specific act of
    contempt is, in the circumstances of this case, immaterial. The insurance
    policies were addressed in argument and, in any event, the motion judge found
    that there were two other serious acts of contempt. We turn now to the
    appellants arguments respecting those findings.

[9]

The appellant also argues that the motion judge
    erred in finding that he knew the whereabouts of a missing Ferrari in
    contravention of the disclosure order. The record indicates that the Ferrari
    was one of the appellants prized possessions. When the Sheriff visited the
    appellants residence pursuant to a writ of seizure and sale to seize the
    Ferrari shortly after he had listed the Ferrari and its whereabouts in his
    April 2 affidavit, the Ferrari was not there. The appellant claimed that it had
    been stolen. The motion judge rejected the appellants evidence on that issue,
    concluding that the appellants Ferrari was not stolen and that [he] knows
    where it is.

[10]

The appellant argues that the motion judge had
    no direct evidence on whether the Ferrari was missing or stolen because the
    appellant exercised his right to silence and his wife invoked spousal privilege
    with respect to their communications. He maintains that, on this evidence, the
    theory that his wife stole the Ferrari was just as reasonable. Therefore, the
    motion judge erred by drawing an impermissible inference of guilt against the
    appellant for exercising his right to silence.

[11]

We reject this argument. Not only was the motion
    judges drawing of the inference well-grounded in the evidence, he specifically
    acknowledged that the evidence relating to the appellants knowledge of the
    whereabouts of the Ferrari was circumstantial, and that the test from
R. v. Villaroman
,
    2016 SCC 33, [2016] 1 S.C.R. 1000 applied. He found the defence theory that the
    car had been out for a drive when the sheriff attended (which was raised by the
    appellants counsel at first instance and again on appeal) to be irrational and
    fanciful.

[12]

The conclusion that the Ferrari was not stolen
    and that the appellant knows where it is was well supported by the evidentiary
    record. As the motion judge explained, [i]t is entirely implausible that a
    prized car would be stolen without [the appellant and his wife] discussing the
    issue. At the very least, one would expect [the appellant] to tell his wife to
    report the missing Ferrari to the police or to his insurer. Therefore, the
    motion judge found that the idea that the Ferrari was supposed to be in the
    garage but was missing and that no one would report it stolen is consistent
    only with the fact that [the appellant] made arrangements to hide the Ferrari.
    We see no error of law or principle here.

[13]

In addition, the appellant submits that the motion
    judge relied on inadmissible evidence: a screenshot and the appellants
    affidavit. The motion judge relied on the screenshot of one Ms. Segarras bank
    statement to show that the appellant gave instructions to disburse $114,822 USD
    of his funds while he was in prison in an express breach of his non-dissipation
    order. The appellant claims that the statement is hearsay evidence that does
    not meet the tests for necessity or reliability.

[14]

We disagree. These issues were fully argued
    before the motion judge and we see no reviewable error on his part. He applied
    the correct test of necessity and reliability and, in any event, the conclusion
    that the appellant had breached the non-dissipation order by making the payment
    was well supported by other evidence including the testimony of the appellants
    business associate that he would soon receive a large cash deposit from the
    appellant. The bank statement shows a transfer to this very same business
    associate.

[15]

Finally, there is no merit to the complaint that
    the use of the appellants affidavits violated his right against self-incrimination.
    The motion judge clearly and correctly explained why the appellants affidavit
    did not fall within the scope of that protection, and we see no basis to
    interfere.

[16]

The appeal is dismissed. Costs of the appeal to
    the respondent in the amount of $20,000.

K.
    van Rensburg J.A.

I.V.B.
    Nordheimer J.A.

A.
    Harvison Young J.A.


