DATE: 20051221
DOCKET: C43405
COURT OF APPEAL FOR ONTARIO
RE: Paul‑Emile Chiasson (Applicant/Appellant) – and – Monique Richard (Respondent)
BEFORE: BORINS, FELDMAN and ARMSTRONG JJ.A.
COUNSEL: Alec McLennan for the appellant John J. Cardill for the respondent
HEARD & ENDORSED: December 19, 2005
On appeal from the judgment of Justice Charles T. Hackland of the Superior Court of Justice dated March 22, 2005.
A P P E A L B O O K E N D O R S E M E N T
[1] Notwithstanding the appellant’s reprehensible conduct in walking out of the hearing before the assessment officer, we would allow the appeal on terms. Given the complexities of this case in respect to the alleged fraud, incompetence, negligence and breach of trust on the part of the appellant we are of the view that the motion judge erred in concluding that the assessment officer properly exercised his discretion in refusing an adjournment to permit the appellant to argue a motion to have the costs assessed by a Superior Court Judge which had been brought prior to the assessment.
[2] Upon the appellant paying costs of $25,000 (which includes the costs before the assessment officer, Hackland J., Labrosse J.A. and this panel) and the posting of a letter of credit in the amount of $75,000 in favour of the respondent by February 1, 2006, paragraph 2 of the order of Hackland J. will be set aside and there will an order that the appellant’s accounts are to be assessed by a Superior Court Judge. Failing the appellant’s compliance with these terms, the appeal will be dismissed with costs of the motion before Labrosse J.A. and this panel fixed at $8,000. The writ of execution presently filed against the appellant’s property is to remain in force, but may not be executed without the leave of this court.
[3] The letter of credit is to be provided by a recognized financial institution and delivered to the respondent’s lawyer and shall stand as security for the repayment of any amount found owing by the appellant to the respondent following the final disposition of the assessment.
[4] In the circumstances, we would dismiss the appellant’s motion for leave to amend his notice of appeal and to file an amended factum.