DATE: 20001109

DOCKET: C33671

COURT OF APPEAL FOR ONTARIO

RE: NATIONAL BANK OF CANADA (Plaintiff/Respondent)

v. ROYAL BANK OF CANADA, ROLAND KARL FILZMAIER,

NANCY H. FILZMAIER, ROLAND HOME IMPROVEMENTS

LIMITED, SHAHNAZ DADVAND, and CANADIAN IMPERIAL

BANK OF COMMERCE (Defendants/Respondents) and

LAURENTIAN BANK OF CANADA, TRUSTEE FOR RRSP

28A 11571 (Paul Ezrin) (Intervener/Respondent)

AND RE: ROLAND KARL FILZMAIER, NANCY H. FILZMAIER,

SHAHNAZ DADVAND, ROLAND HOME IMPROVEMENTS

LIMITED and 866634 ONTARIO LIMITED (Plaintiffs by

Counterclaim) v. NATIONAL BANK OF CANADA, CANADIAN

IMPERIAL BANK OF COMMERCE, LAURENTIAN BANK OF

CANADA as TRUSTEE FOR RRSP 28A 11571(Paul Ezrin),

MARTIN EZRIN, JUDITH EZRIN and PETER KLINE as personal

representatives of the Estate of the late PAUL EZRIN, 831857

ONTARIO INC., HOME SAVINGS & LOAN CORPORATION,

O.K.W. LIMITED, LEE, ROCHE & KELLY and NICHOLAS B.

ROCHE (Defendants by Counterclaim)

BEFORE: FINLAYSON, LABROSSE and WEILER JJ.A.

COUNSEL: Marjan Aghaipour and Neville Johnston,

for Marjan Aghaipour, the non-party appellant

David Debenham

for the respondent National Bank of Canada

Paul J. Pape,

for the respondent Laurentian Bank of Canada

HEARD: November 3, 2000

On appeal from the order of Justice Susan E. Greer dated January 7, 2000

E N D O R S E M E N T

[1] The non-party appellant, a solicitor (“the solicitor”), appeals the January 7, 2000 order of Greer J. which found the solicitor in contempt and required her, Roland Filzmaier and Roland Home Improvements Limited (“RHIL”) to jointly and severally pay into court the sum of $84,365 (“the funds”) plus interest. This appeal has a long history of related proceedings. The facts relevant to this appeal can be briefly stated as follows.

[2] Monies with the Royal Bank of Canada (“RBC”) payable to RHIL, Roland Filzmaier and Nancy Filzmaier with respect to trial costs were seized by the Sheriff on March 11, 1997 pursuant to a Writ of Seizure and Sale dated March 7, 1997 and issued by the solicitor on behalf of RHIL.

[3] On March 14, 1997, the order of Lane J., made in the presence of the solicitor, ordered the Sheriff to hold the funds until “issues raised herein are resolved”. These issues involved claims of priority and entitlement to the funds made by the creditors of the Filzmaiers.

[4] On April 11, 1997, the Sheriff mistakenly released the funds to the solicitor on the direction of her client RHIL only. The solicitor claimed that the funds were owed to her for assessed costs for legal services rendered to RHIL.

[5] Requests to return the funds to the Sheriff were ignored by the solicitor, even long after there could be no doubt that she was aware of the dispute relating to the funds.

[6] On the motions before Greer J. the solicitor was held to be in contempt and was ordered to have the funds paid back into court.

[7] When appearing before Greer J. the solicitor did not offer any evidence and although represented by counsel, filed only a factum on her behalf. On the basis of uncontradicted evidence that the solicitor misled the Sheriff into releasing the funds and defeated the order of Lane J., Greer J. ordered the solicitor, Roland Filzmaier and RHIL to repay the funds into court. She also held the solicitor in civil contempt of the order of Lane J. and directed the trial of an issue with respect to the contempt of Roland Filzmaier and RHIL.

[8] The issues raised by the solicitor on this appeal, including the refusal to grant an adjournment, the lack of jurisdiction, the refusal to dismiss for delay, the lack of standing, the validity of the Lane J. order, case splitting, a Charter argument, the findings of fact and the award of costs, are all without merit.

[9] More specifically, the refusal to grant an adjournment was more than justified. The case had originally been set for October 20, 1997 and was adjourned to November 15, 1997 for hearing. It was not suggested that an adjournment was requested to file additional material, nor has that suggestion been made in this court. There was a factum filed on behalf of the solicitor. However, it is advanced in this court that counsel was not prepared to present oral argument. He apparently thought that his three hours of preliminary objections would carry the day. On this appeal no material has been filed indicating that any arguments that could have been made were not made. This ground of appeal has no merit.

[10] In addition, the solicitor submits that Greer J. was not entitled to draw the inference that she misled the Sheriff. On the material before Greer J. and in the absence of any sworn material from the solicitor this inference was entirely appropriate.

[11] Finally, it was submitted that the appellant was merely mistaken as to her entitlement to the funds and that there was no mens rea which would support a finding of contempt. The appellant knew at the time of the hearing before Greer J. that there was a dispute, yet she continued to hold the money and did not pay it back into court.

[12] Greer J. gave detailed reasons for her decision. There was overwhelming evidence that the funds had been ordered held in court pending a determination of the rights of the creditors. There is also evidence that the solicitor misled the Sheriff in having the funds paid out without notice to the creditors and that she defeated the order of Lane J. Her conduct, as a solicitor, was clearly contemptuous. In these circumstances, there was no alternative but to order that the monies be paid back into court.

[13] Accordingly, the appeal is dismissed with costs and the finding of contempt is upheld. The issue of what sanction the contempt finding should attract is to be dealt with at the trial of the issue with respect to the other contempt allegations concerning Filzmaier and RHIL.

(signed) “G. D. Finlayson J.A.”

(signed) “J. M. Labrosse J.A.”

(signed) “K. M. Weiler J.A.”