



COURT OF APPEAL FOR ONTARIO

CITATION: Aloe v. Aloe, 2018 ONCA 358

DATE: 20180411

DOCKET: C63008, C63490 & C63758

Doherty, van Rensburg and Nordheimer JJ.A.

BETWEEN

Tiuu Mari-Ann Aloe
and Valve Elisabeth
    Aloe-Gunnell

Plaintiffs (Appellant/
Respondent
)

and

Estate
    of Valdeko Aloe,
Lembit Peter Aloe,

Toomas
    Erki Aloe, Alo Lumber and Building Supplies Limited,

John
    Alo Developments Limited and

Alo Construction Company Limited

Defendants (
Respondents
)

Valve Elisabeth Aloe-Gunnell, acting in person

William R. Scott, for the respondents
    Lembit Peter Aloe, Toomas Erki Aloe, Alo Lumber and Building Supplies Limited,
    John Alo Developments Limited and Alo Construction Company Limited

Heard: April 6, 2018

On appeal from the orders of
    Justice Michael N. Varpio of the Superior Court of Justice dated October 27,
    2016 and March 9, 2017, and the order of Justice Edward E. Gareau of the
    Superior Court of Justice dated December 13, 2016.

REASONS FOR
    DECISION

[1]

These appeals arise in the context of
    long-standing litigation commenced by the appellant in respect of the business
    interests, bank accounts and real property of the estate of her father, Valdeko
    Aloe.

[2]

In 2011, the parties signed Minutes of Settlement that
    were incorporated into a final order of Koke J. on March 11, 2011 (the Final
    Order).
Among other things, the Final Order provided for a portion of
    certain real property in New York to be deeded to the appellant, after
    severance. Paragraph 17 of the Final Order provided that Formal Orders in
    relation to the Minutes of Settlement will be prepared by the parties and
    remitted for signature to Justice E. Koke. Justice Koke was effectively
    case-managing the proceedings at that time.

[3]

Shortly after the Final Order, Ms. Aloe-Gunnell repudiated the
    settlement after asserting that the defendants had misrepresented the value of
    her share of the New York property. The parties have been unable to
    successfully implement the Final Order since that time, and there have been
    multiple court attendances.

[4]

In January 2015, Varpio J. found the appellant in contempt of court after
    she brought proceedings in New York with respect to the New York property. The motion
    judge found the appellant had breached the Final Order by commencing such
    proceedings because Koke J. had seized himself of the matter and para. 17 of
    the Final Order required only Koke J. to sign further final orders flowing from
    the minutes of settlement. By order dated February 13, 2015, Varpio J. imposed
    a penalty for contempt, and prohibited the appellant from taking any further
    steps in the proceeding or in any related proceeding in Ontario or any other
    jurisdiction, without leave of the court. The appellant did not appeal the
    contempt order. Her appeal of the contempt sentence was dismissed for delay by
    Sharpe J.A. on January 26, 2016, and a motion for a review of that order was
    dismissed by a panel of this court on August 24, 2016.

[5]

Three subsequent orders are the subject of the
    present appeals.

[6]

The first is an appeal from the order of Varpio
    J. dated October 27, 2016. The appellant moved under rule 59 of the
Rules
    of Civil Procedure
to vary para. 17 of the Final Order,
    arguing that there had been a mistake or slip in including this term in the
    order. Varpio J. dismissed the motion to vary the order
ab initio
,

finding it
    was an attempt by the appellant to avoid the earlier finding that she was in
    contempt of the Final Order. He removed para. 17 going forward, as Koke J. had
    transferred to a different county.

[7]

The appellant says that the motion judge made a
    palpable and overriding error of fact in finding that the para. 17 issue was an
    attempt to relitigate matters already decided. She also asserts that the motion
    judge was biased.

[8]

There is no merit to this appeal. There was no
    apparent purpose to the appellants attempt to vary para. 17 of the Final
    Order, other than to challenge the basis for the prior contempt finding (which
    the appellant confirmed in her oral argument to this court remains her
    objective). The motion judge properly concluded that this was an attempt to
    undermine the contempt finding, which was not appealed, and to re-litigate a
    settled matter. There is no error here.

[9]

We are not persuaded that there was any actual
    or apprehended bias in this case. There is nothing in the transcript provided
    to us to suggest any prejudgment of the matter as a result of the comments made
    by the presiding judge to which the appellant takes objection. Nor, in the
    circumstances of this case, did the sole fact that the motion judge had found
    the appellant in contempt of the order she later sought to vary, disqualify him
    from hearing the motion.

[10]

The second appeal is from the order of Gareau J.
    dated December 13, 2016, dismissing the appellants motion for leave to
    commence a new action against the respondents. The proposed action related to one
    or more Swiss bank accounts of the appellants deceased father. The motion
    judge concluded that, because of the passage of time, the action would be
    tantamount to an abuse of process and that, in any event, the claims were
    statute-barred.

[11]

The appellant now argues that the original
    action and the Final Order pertained only to the estate of her grandmother, and
    that for this reason leave to proceed with the action was not required. She
    also asserts that the motion judge erred in refusing leave on the basis of her
    delay.

[12]

There is no merit to this appeal. The appellant
    was required to obtain leave to commence
any
proceeding
    against the respondents, pursuant to the February 13, 2015 order of Varpio J. Justice
    Gareau properly denied leave when the claims could not possibly succeed because
    of the expiry of limitation periods. The claims the appellant seeks to
    litigate, which she acknowledges having discovered in November 2002, are barred
    by the operation of one or more of s. 38(3) of the
Trustee Act
, R.S.O. 1990, c. T.23, the
Limitations Act, 2002
,

S.O. 2002, c.
    24, Sched. B,

and the
Limitations
    Act
, R.S.O. 1990, c. L.15. Contrary to the appellants
    submission on appeal, the evidence does not satisfy the requirements of a
    tolling agreement or establish fraudulent concealment of the facts giving rise
    to the claim.

[13]

Although the appellants written materials
    asserted bias on the part of the motion judge as another ground of appeal, it
    is unnecessary to address this ground, which was abandoned by the appellant
    during oral argument.

[14]

The
    third appeal is from the order of Varpio J. dated March 9, 2017 that dismissed
    a motion by the appellant for his recusal and for transfer of the proceedings
    to Toronto.

[15]

The
    appellant asserts that the motion judge erred in law in refusing to recuse
    himself, where it was apparent from comments he had made at earlier stages of
    the proceedings, that there was a reasonable apprehension of bias.

[16]

Assuming
    that we have jurisdiction to hear this appeal (an issue that was not argued
    before us), we see no merit in the appeal. The motion judge carefully
    considered the various statements referred to by the appellant, and explained
    why, when such statements were considered in context, there was no air of
    reality to the bias claim. The refusal to transfer the proceedings was based on
    a proper exercise of the motion judges discretion after he considered the
    balance of convenience to the parties. Accordingly there is no basis to
    interfere.

[17]

For
    these reasons the three appeals are dismissed. The respondents shall have their
    costs of the appeals fixed at the total amount of $12,000, inclusive of
    disbursements and HST.

Doherty J.A.

K. van Rensburg J.A.

I.V.B. Nordheimer J.A.


