Court of Appeal for Ontario

CITATION: Appleyard v. Wainberg, 2008 ONCA 88

DATE: 20080212

DOCKET: C45838

MOLDAVER, MACPHERSON and EPSTEIN JJ.A.

BETWEEN:

IN THE MATTER OF THE BANKRUPTCY OF JO ANNE APPLEYARD, OF THE CITY OF TORONTO, IN THE PROVINCE OF ONTARIO

JO ANNE APPLEYARD Appellant (Debtor)

And

MARK WAINBERG Respondent (Creditor)

Counsel: Robert A. Klotz and Kristine Holder for the appellant (debtor) Arnold Zweig for Peter Appleyard Mark Wainberg, In person Paul D. Koven and Philip Gertler for Brief & Associates Limited, Trustees

Heard and endorsed: January 11, 2008

On appeal from the order of Justice Susan Greer of the Superior Court of Justice dated May 1, 2006.

APPEAL BOOK ENDORSEMENT

[1] We see no merit to this appeal. Justice Greer’s decision to refuse the adjournment request was reasonable in the circumstances and in our view, a proper exercise of her discretion.

[2] On the substantive issues, we are of the view that the appeal is largely fact-driven. Based on the evidence before her, Justice Greer was satisfied that the appellant could not meet her debts generally as they became due. In our view, that finding was open to her and amply supported by the record. With respect to the appellant’s assets at the time of the petition, we are not persuaded that Justice Greer erred in her assessment of their value in relation to her unsecured debts.

[3] Finally, we do not agree that Greer J. erred in failing to stay the receivership order until the appellant’s litigation against the respondent was complete. The appellant did not seek such relief before Greer J. and in any event, the litigation, which was at best speculative, had not progressed to any real degree for many years.

[4] Accordingly, the appeal is dismissed. Costs to Mr. Wainberg in the amount of $5,000 inclusive of disbursements and G.S.T. to be paid out of the estate.