Court of Appeal for Ontario

Date: 2019-07-04

Docket: M50375/M50377 (C66432)

Judges: Hourigan, Paciocco and Fairburn JJ.A.

Between

Jason Michael Thistle Plaintiff (Respondent / Responding party)

and

James Schumilas, Jr., WCS Financial Services, Cinaber Financial Inc. and Bridgeforce Financial Group Inc. Defendants (Appellant / Moving party)

Counsel

Marie Sidney, for the moving party

Sean Zeitz, for the responding party

Heard and released orally: June 28, 2019

Reasons for Decision

[1] The underlying claim in this proceeding is for damages arising from the denial of payment under a life insurance policy. Mr. Thistle and his partner applied for a life insurance policy with the assistance of Mr. Schumilas, an insurance agent. Mr. Thistle's partner passed away and the insurer denied coverage. In addition to suing the insurer, Mr. Thistle also sued Mr. Schumilas for negligence.

[2] Mr. Schumilas moved for summary dismissal of the action on the basis that Mr. Thistle lacked capacity to bring the claim, arguing that the cause of action vested in Mr. Thistle's trustee in bankruptcy. Mr. Thistle moved for an order granting him standing to bring the action. Justice Braid dismissed Mr. Schumilas' motion and granted Mr. Thistle an order nunc pro tunc for standing to bring the action notwithstanding his assignment in bankruptcy and subsequent discharge ("the main order"). He also granted Mr. Thistle leave to amend the statement of claim and other procedural orders ("the ancillary orders").

[3] Mr. Schumilas appealed to this court. There is a dispute between the parties whether the main order was made pursuant to the Bankruptcy and Insolvency Act (the "BIA") or the motion judge's inherent jurisdiction. Mr. Thistle also took the position that the ancillary orders ought to have been appealed to the Divisional Court, with leave of that court. Mr. Thistle moved for a stay of the appeal. Mr. Schumilas cross-moved for a declaration that the appeal was properly brought under the Courts of Justice Act, and in the alternative, a motion for an order granting leave to extend time to appeal under the BIA, and an order granting leave under s. 193(e).

[4] Miller J.A. determined that the main order was made pursuant to the motion judge's inherent jurisdiction, as it was a civil action for damages brought years after Mr. Thistle was discharged from bankruptcy. With respect to the ancillary orders, Miller J.A. determined these were properly within the jurisdiction of the Divisional Court. Should leave be granted by that court, he ruled, a motion could be brought to join them together with the main appeal.

[5] Mr. Thistle now brings a motion for an order setting aside the order of Miller J.A. and dismissing the appeal. Mr. Schumilas brings a cross-motion for an order, should Miller J.A.'s order be overturned, extending the time to serve a notice of appeal and an application for leave to appeal pursuant to the BIA, and an order declaring that leave to appeal under s. 193 of the BIA is not required or, in the alternative, an order granting leave to appeal pursuant to s. 193(e).

[6] We are of the view that Miller J.A. did not err in his interpretation of Braid J.'s order. There is nothing in that order that indicates that she was purporting to rely on the BIA. This was a civil proceeding, not a bankruptcy proceeding and not an action authorized by the BIA. In the circumstances of this case, Miller J.A. did not err in finding that the decision was not rendered pursuant to the power granted to a motion judge under the BIA.

[7] The motion to reconsider the order of Miller J.A. is dismissed. It is unnecessary to consider the cross-motion.

[8] Costs are to Mr. Schumilas in the amount of $3,700, inclusive of HST and disbursements.

C.W. Hourigan J.A.

David M. Paciocco J.A.

Fairburn J.A.