COURT OF APPEAL FOR ONTARIO

DATE: 20050117

DOCKET: C41973

RE: ZWAIG ASSOCIATES INC. (Plaintiff (Respondent)) and SIMON MOK AND GRACE MOK (Defendants (Appellants))

BEFORE: WEILER, MOLDAVER AND SIMMONS JJ.A.

COUNSEL:

Robert Riteman

for the appellants

Christopher Stanek

for the respondent

HEARD & RELEASED ORALLY: January 11, 2005

On appeal from the judgment of Justice C. Campbell of the Superior Court of Justice dated May 20, 2004.

E N D O R S E M E N T

[1] This action arose from bankruptcy proceedings in which the respondent acted as trustee for the appellants’ corporations. On May 20, 2004, the motions judge granted summary judgment in favour of the respondent on a guarantee signed by the appellants with respect to the respondent’s fees and directed a reference to the Registrar in Bankruptcy to determine the reasonable quantum of those fees. The appellants appeal this ruling and raise two grounds of appeal.

[2] First, the appellants submit that there is a genuine issue for trial because his clients did not receive independent legal advice. Lack of independent legal advice is not a free-standing defence. There is no evidence that in the absence of independent legal advice the appellants did not understand, when they gave their guarantee, that the respondent’s fees would not be capped nor was there evidence capable of supporting any of the other defences set out in the appellants’ statement of defence. Accordingly, we would not give effect to this first ground of appeal.

[3] Second, the appellant submits that the motions judge erred in directing a reference to the Registrar in Bankruptcy to determine the quantum of fees. The Rules of Civil Procedure specifically permit a judge hearing a summary judgment motion to direct a reference. Moreover, rule 54.03 permits a reference to be directed to a Registrar or other officer of the court. We see no reason why an officer of the court cannot act in dual capacities while conducting a proceeding and we are not persuaded that the motions judge committed any error by exercising his discretion to direct that the reference be conducted by the Registrar in Bankruptcy. Accordingly, we would not give effect to this second ground of appeal.

[4] The appeal is therefore dismissed.

“K.M. Weiler J.A.”

“M.J. Moldaver J.A.”

“Janet Simmons J.A.”