Court of Appeal for Ontario

Date: April 11, 2018

Docket: C63008, C63490 & C63758

Justices: Doherty, van Rensburg and Nordheimer JJ.A.

Between

Tiuu Mari-Ann Aloe and Valve Elisabeth Aloe-Gunnell

Plaintiffs (Appellant/Respondent)

and

Estate of Valdeko Aloe, Lembit Peter Aloe, Toomas Erki Aloe, Alo Lumber and Building Supplies Limited, John Alo Developments Limited and Alo Construction Company Limited

Defendants (Respondents)

Counsel

Valve Elisabeth Aloe-Gunnell, acting in person

William R. Scott, for the respondents Lembit Peter Aloe, Toomas Erki Aloe, Alo Lumber and Building Supplies Limited, John Alo Developments Limited and Alo Construction Company Limited

Heard: April 6, 2018

On appeal from the orders of Justice Michael N. Varpio of the Superior Court of Justice dated October 27, 2016 and March 9, 2017, and the order of Justice Edward E. Gareau of the Superior Court of Justice dated December 13, 2016.

Reasons for Decision

Background

[1] These appeals arise in the context of long-standing litigation commenced by the appellant in respect of the business interests, bank accounts and real property of the estate of her father, Valdeko Aloe.

[2] In 2011, the parties signed Minutes of Settlement that were incorporated into a final order of Koke J. on March 11, 2011 (the "Final Order"). Among other things, the Final Order provided for a portion of certain real property in New York to be deeded to the appellant, after severance. Paragraph 17 of the Final Order provided that "Formal Orders in relation to the Minutes of Settlement will be prepared by the parties and remitted for signature to Justice E. Koke". Justice Koke was effectively case-managing the proceedings at that time.

[3] Shortly after the Final Order, Ms. Aloe-Gunnell repudiated the settlement after asserting that the defendants had misrepresented the value of her share of the New York property. The parties have been unable to successfully implement the Final Order since that time, and there have been multiple court attendances.

[4] In January 2015, Varpio J. found the appellant in contempt of court after she brought proceedings in New York with respect to the New York property. The motion judge found the appellant had breached the Final Order by commencing such proceedings because Koke J. had seized himself of the matter and para. 17 of the Final Order required only Koke J. to sign further final orders flowing from the minutes of settlement. By order dated February 13, 2015, Varpio J. imposed a penalty for contempt, and prohibited the appellant from taking any further steps in the proceeding or in any related proceeding in Ontario or any other jurisdiction, without leave of the court. The appellant did not appeal the contempt order. Her appeal of the contempt sentence was dismissed for delay by Sharpe J.A. on January 26, 2016, and a motion for a review of that order was dismissed by a panel of this court on August 24, 2016.

[5] Three subsequent orders are the subject of the present appeals.

First Appeal: Motion to Vary Paragraph 17 of the Final Order

[6] The first is an appeal from the order of Varpio J. dated October 27, 2016. The appellant moved under rule 59 of the Rules of Civil Procedure to vary para. 17 of the Final Order, arguing that there had been a mistake or slip in including this term in the order. Varpio J. dismissed the motion to vary the order ab initio, finding it was an attempt by the appellant to avoid the earlier finding that she was in contempt of the Final Order. He removed para. 17 going forward, as Koke J. had transferred to a different county.

[7] The appellant says that the motion judge made a palpable and overriding error of fact in finding that the para. 17 issue was an attempt to relitigate matters already decided. She also asserts that the motion judge was biased.

[8] There is no merit to this appeal. There was no apparent purpose to the appellant's attempt to vary para. 17 of the Final Order, other than to challenge the basis for the prior contempt finding (which the appellant confirmed in her oral argument to this court remains her objective). The motion judge properly concluded that this was an attempt to undermine the contempt finding, which was not appealed, and to re-litigate a settled matter. There is no error here.

[9] We are not persuaded that there was any actual or apprehended bias in this case. There is nothing in the transcript provided to us to suggest any prejudgment of the matter as a result of the comments made by the presiding judge to which the appellant takes objection. Nor, in the circumstances of this case, did the sole fact that the motion judge had found the appellant in contempt of the order she later sought to vary, disqualify him from hearing the motion.

Second Appeal: Motion for Leave to Commence New Action

[10] The second appeal is from the order of Gareau J. dated December 13, 2016, dismissing the appellant's motion for leave to commence a new action against the respondents. The proposed action related to one or more Swiss bank accounts of the appellant's deceased father. The motion judge concluded that, because of the passage of time, the action would be tantamount to an abuse of process and that, in any event, the claims were statute-barred.

[11] The appellant now argues that the original action and the Final Order pertained only to the estate of her grandmother, and that for this reason leave to proceed with the action was not required. She also asserts that the motion judge erred in refusing leave on the basis of her delay.

[12] There is no merit to this appeal. The appellant was required to obtain leave to commence any proceeding against the respondents, pursuant to the February 13, 2015 order of Varpio J. Justice Gareau properly denied leave when the claims could not possibly succeed because of the expiry of limitation periods. The claims the appellant seeks to litigate, which she acknowledges having discovered in November 2002, are barred by the operation of one or more of s. 38(3) of the Trustee Act, R.S.O. 1990, c. T.23, the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, and the Limitations Act, R.S.O. 1990, c. L.15. Contrary to the appellant's submission on appeal, the evidence does not satisfy the requirements of a tolling agreement or establish fraudulent concealment of the facts giving rise to the claim.

[13] Although the appellant's written materials asserted bias on the part of the motion judge as another ground of appeal, it is unnecessary to address this ground, which was abandoned by the appellant during oral argument.

Third Appeal: Motion for Recusal and Transfer

[14] The third appeal is from the order of Varpio J. dated March 9, 2017 that dismissed a motion by the appellant for his recusal and for transfer of the proceedings to Toronto.

[15] The appellant asserts that the motion judge erred in law in refusing to recuse himself, where it was apparent from comments he had made at earlier stages of the proceedings, that there was a reasonable apprehension of bias.

[16] Assuming that we have jurisdiction to hear this appeal (an issue that was not argued before us), we see no merit in the appeal. The motion judge carefully considered the various statements referred to by the appellant, and explained why, when such statements were considered in context, there was no air of reality to the bias claim. The refusal to transfer the proceedings was based on a proper exercise of the motion judge's discretion after he considered the balance of convenience to the parties. Accordingly there is no basis to interfere.

Disposition

[17] For these reasons the three appeals are dismissed. The respondents shall have their costs of the appeals fixed at the total amount of $12,000, inclusive of disbursements and HST.

"Doherty J.A."

"K. van Rensburg J.A."

"I.V.B. Nordheimer J.A."