Court of Appeal for Ontario

CITATION: Harrison v. Burns, 2011 ONCA 664

DATE: 2011-10-24

DOCKET: C53515

BEFORE: MacPherson, LaForme and Epstein JJ.A.

BETWEEN

Tom Harrison and Michelle Harrison

Plaintiffs (Respondents)

and

Darin Burns

Defendant (Appellant)

COUNSEL:

Robert De Toni, for the appellant

Thomas W. Curran, for the respondents

Heard and released orally: October 21, 2011

On appeal from the judgment of Justice Charles T. Hackland of the Superior Court of Justice dated March 1, 2011.

ENDORSEMENT

[1] The appellant Darin Burns appeals from the judgment of Hackland J. of the Superior Court of Justice dated March 1, 2011 granting the respondents the right to continue their action in order to establish a claim provable in the bankruptcy of the appellant, granting summary judgment to the respondents in the amount of $424,500, and adjourning the issue of whether the judgment debt should be discharged under the Bankruptcy and Insolvency Act to the motions court.

[2] The Harrisons entered into an agreement with Burns to build them a house. During the course of building the house, the Harrisons paid Burns $424,500. The Harrisons alleged that Burns did not pay his subcontractors and suppliers with the money that they had given to him and started a court action in Ottawa. Burns defended the action and brought a counterclaim.

[3] Burns, who had by then moved to New Brunswick, subsequently made an assignment in bankruptcy in that province. The bankruptcy proceedings had the effect of staying the Harrisons’ action against him.

[4] The Harrisons then brought a motion in Ottawa, and not in bankruptcy court in New Brunswick, for leave to continue their action against Burns, for summary judgment against Burns, and for a declaration that the judgment would not be extinguished upon Burns’ discharge from bankruptcy.

[5] The motion judge heard the motion, with counsel representing the Harrisons appearing in the court in Ottawa and Burns representing himself by telephone from New Brunswick. He rendered a judgment in the terms of the first paragraph above. He provided no reasons for his judgment.

[6] The appellant appeals on several grounds, including that the motion judge erred in (1) finding that the court in Ontario had jurisdiction to hear the Harrisons’ motion given the appellant’s assignment in bankruptcy in New Brunswick, (2) granting leave to the Harrisons to continue their action against Burns in order to establish a claim provable in bankruptcy, (3) granting summary judgment for $424,500 without directing the trial of an issue, and (4) not providing any reasons for judgment.

[7] In our view, the appeal can be resolved on the basis of the fourth issue. In R. V. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 at para. 18, Binnie J., quoting Baker v. Canada (Minister of Citizenship and Immigration, 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, said that “in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for the decision.”

[8] This is clearly one of those cases. The serious jurisdictional issue in light of Burns’ bankruptcy in New Brunswick, the relationship between the Ontario action and the New Brunswick proceedings, and the fact that Burns was representing himself by telephone from New Brunswick, taken together, required that the motion judge provide an explanation for his decision. He did not do so.

[9] The appeal is allowed and the judgment below is set aside. We observe that, with both parties now represented by counsel, the Harrisons are at liberty to bring a similar motion if so advised.

[10] The appellant is entitled to his costs of the appeal fixed at $3000 inclusive of disbursements and HST.

“J.C. MacPherson J.A.”

“H.S. LaForme J.A.”

“G.J. Epstein J.A.”