Court File and Parties

CITATION: International Tour Entertainment Corporation v. Cutting Edge Films Inc., 2009 ONCA 507

DATE: 20090623

DOCKET: C49753

COURT OF APPEAL FOR ONTARIO

BEFORE: Feldman, Juriansz and MacFarland JJ.A.

BETWEEN:

International Tour Entertainment Corporation

Applicant (Appellant)

and

Cutting Edge Films Inc.

Respondent (Respondent in Appeal

COUNSEL: Terry Graham, In person and on behalf of International Tour Entertainment Corporation Heather Mitchell for the respondent Cutting Edge Films Inc.

On appeal from the order of Justice D. R. Aston of the Superior Court of Justice dated November 4, 2008.

Heard and released orally: May 29, 2009

ENDORSEMENT

[1] The appeal is from an order for contempt made against Mr. Graham, who is CEO of the debtor corporation, personally, for failing to answer questions on an examination in aid of execution against the debtor corporation and for failing to produce any documents on that examination. The respondent submits that the order was made under rule 60.18(5) of the Rules of Civil Procedure which provides:

Where it appears from an examination under subrules (2) and (4) that a debtor has concealed or made away with property to defeat or defraud his or her creditors, a judge may make a contempt order against the debtor.

[2] Counsel also submits that the order against the appellant personally is authorized by rule 60.11(6) which provides:

Where a corporation is in contempt, the judge may also make an order under subrule (5) against any officer or director of the corporation and may grant leave to issue a writ of sequestration under rule 60.09 against his or her property.

[3] Although it is clear on the record that the appellant refused to answer questions or to produce documents, the order for contempt against the personal appellant cannot be sustained. The motion judge gave no reasons to explain whether his order was made under rule 60.18(5), concealment in order to defeat or defraud creditors. Nor are there any reasons to explain the jurisdiction of the court to make an order against the personal appellant for contempt, and if the order was made using rule 60.11(6), on what basis that rule can be used in conjunction with rule 60.18(5). Without any reasons to assess, this court is not able to determine on appeal whether, and if so, on what basis there was jurisdiction to make the contempt order.

[4] The appeal is therefore allowed and the contempt order is set aside. There will be no costs of the appeal.

Signed: “K. Feldman J.A.”

“Russell Juriansz J.A.”

“J. MacFarland J.A.”