



COURT OF APPEAL FOR ONTARIO

CITATION: Cole v. RBC Dominion Securities Inc., 2017 ONCA
    1009

DATE: 20171220

DOCKET: C63228

Pepall, Benotto and
    Paciocco JJ.A.

In the Matter of the Bankruptcy
    of Henry George Cole, of the City of Toronto, in the Province of Ontario

BETWEEN

Henry George Cole

Applicant (Appellant)

and

RBC Dominion Securities Inc.

Respondent
    (Respondent)

Hari Nesathurai and Glen Perinot for the appellant,
    Henry Cole

Jeremy Devereaux and Danny Urquhart for the respondent,
    RBC Dominion Securities Inc.

Heard and released orally: December 14, 2017

On appeal from the order of Justice Herman J.
    Wilton-Siegel of the Superior Court of Justice, dated December 13, 2016.

REASONS FOR DECISION

[1]

The appellant, age 52, was petitioned into bankruptcy in 2011 by RBC,
    after he misappropriated $5 million from clients while working as their
    investment advisor.  While in bankruptcy, he had a net monthly income of
    $14,600, resulting in surplus monthly income of $12,500.  He nevertheless
    failed to make any surplus income payments.

[2]

The appellant applied for a discharge from bankruptcy.  The registrar in
    bankruptcy ordered that: (1) as a condition of his discharge, the appellant pay
    $284,346 to the Trustee as surplus income to October 2015, payable at a rate of
    $5,000 per month; (2) as a condition of his discharge, the appellant pay an
    additional $5,000 per month to the Trustee for a further six years for a total
    additional payment of $360,000; and (3) the appellants discharge from
    bankruptcy be suspended for two years.

[3]

The appellants appeal of the order was dismissed by Wilton-Siegel J. 
    The appellant now appeals from that order.

[4]

Before this court, he renews his numerous objections to the registrars order
    and principally argues that the treatment of surplus and other income was in
    error.  Moreover, he submits that it was not for Wilton-Siegel J. to rewrite
    the decision of the registrar and, in any event, his decision was unreasonable.

[5]

We disagree.

[6]

The registrar ordered that as a condition of his discharge from bankruptcy,
    the appellant was to pay surplus income for the period to October 2015 in the
    amount of $284,346, at the minimum rate of $5,000 per month until paid in
    full.  This was the recommendation of the Trustee and there is no dispute with
    respect to this part of the order.  This provision in the order was based on s.
    68 of the
Bankruptcy and Insolvency Act
, R.S.C., 1985, c. B-3
.

[7]

In addition, as a condition of his discharge, the appellant was to pay
    an additional amount for six years.

[8]

Justice Wilton-Siegel acknowledged that some of the registrars language
    was loose.  However, he considered her reasons in their entirety and read her
    decision on prospective payments as referring to income that was to be paid as
    a condition of the appellants discharge pursuant to s. 172.  He effectively
    recognized her error in wording but properly identified the substance and
    purport of her decision.

[9]

We agree with his conclusion.

[10]

Sections 68 and 172 represent different types of orders.  Section 68
    addresses surplus income and s. 172 addresses the grant or refusal of a
    discharge from bankruptcy.  Specifically, s. 172(2)(c) provides that the court
    shall, on proof of any of the facts referred to in s. 173, require the bankrupt,
    as a condition of his discharge to, among other things, pay such monies or
    comply with such other terms as the court may direct.  The registrar found that
    the facts referred to in s. 173(1)(o) had been established in that the
    appellant had failed to provide information to enable the Trustee to calculate
    surplus income.  Additionally, the appellant had conceded that s. 173(a), (d),
    and (e) applied.  Justice Wilton-Siegel did not rewrite the registrars reasons
    as alleged, rather he read the registrars reasons in their totality and was
    readily able to discern her intention and meaning.

[11]

Lastly, we do not accept that his decision was unreasonable.  The registrars
    order was discretionary in nature and there was ample evidence to support her
    decision.  Among other factors, the appellant has a substantial income and the
    ability to pay.  Moreover, the appellant chose not to testify to provide any
    evidence to the contrary.  As noted by Wilton-Siegel J., the circumstances of
    the case were exceptional.  Justice Wilton-Siegel was correct in concluding
    that the s. 172 order imposed by the registrar was reasonable.  He also noted
    the appellants right to seek relief if necessary under s. 172(3).  We see no
    basis on which to interfere.

[12]

For these reasons, the appeal is dismissed.  As agreed by the parties,
    the appellant is to pay to the respondent $4,100 in costs on a partial
    indemnity scale inclusive of disbursements and applicable tax.

S.E. Pepall J.A.

M.L. Benotto J.A.

David M. Paciocco J.A.


