Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20210430 DOCKET: C68596

Benotto, Miller and Trotter JJ.A.

BETWEEN

Glenn Bogue Applicant (Respondent)

and

Andrew Clifford Miracle a.k.a. Sir Andrew Miracle, Andrew Clifford Maracle III a.k.a. Andy Maracle, Smokin’ Joes Respondents (Appellant)

Counsel: Ian J. Collins, for the appellant Andrew Miracle Kenneth H. Page, for the respondent Glenn Bogue Robert J. Reynolds and Mike Pretsell, for Lisa Maracle Sexsmith and Virginia Maracle

Heard: April 21, 2021 by video conference

On appeal from the order of Justice Stanley J. Kershman of the Superior Court of Justice, dated October 11, 2019.

Reasons for Decision

[1] The appellant, Andrew Clifford Miracle (“Andrew”), had been involved in a dispute with his son, the respondent, Andrew Maracle III (“Andy”). The dispute involved the joint ownership of Smokin’ Joes, a store in the Tyendinaga Mohawk Territory near Belleville. Andrew and Andy agreed to arbitration. Andrew entered into a retainer agreement with the respondent Glenn Bogue to act for him on the arbitration. The contingency agreement provided that Bogue would receive 25% of the amount awarded.

[2] On November 24, 2016, the arbitrator decided that Andy owed Andrew $11,486,283.00. The arbitration award was subsequently made into an order at Andrew’s request. Andy was required to transfer his interest in Smokin’ Joes to Andrew. Andrew now has possession of Smokin’ Joes.

[3] Lisa Maracle Sexsmith and Virgina Miracle own and operate Smokin’ Speedway, a gas station. Andy was a one-third owner of Smokin’ Speedway before he transferred his ownership share to Lisa and Virginia. Lisa and Virginia are not directly affected by the order but obtained status as respondents out of concern that Bogue will seek a receivership order or garnishment order against them.

[4] Andrew has paid Bogue only $12,500.00. Bogue sought the appointment of a receiver to realize upon the debt for his benefit and Andrew’s other creditors.

[5] Kershman J. granted the order pursuant to s. 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[6] Andrew alleges that the application judge erred because: (i) he had no authority to make a final order for a receiver; (ii) there was no money owed to Bogue for fees on the contingency; and (iii) the final order for a receiver contravenes the Indian Act, R.S.C. 1985, c. I-5, ss. 29, 89, which prohibits the enforcement by a non-status Indian against the assets of an Indian situated on a reserve. He relies on Borden & Elliot v. Temagami First Nation, 2009 ONSC 18672, [2009] 3 C.N.L.R. 30 (Ont. S.C.); Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85; and Tyendinaga Mohawk Council v. Brant, 2014 ONCA 565, 121 O.R. (3d) 561.

[7] In our view, the third ground of appeal is a threshold issue which must be determined before the appeal can be heard.

[8] It is not clear that this issue was raised in the court below. Andrew acknowledges that he did not raise this issue before the application judge. But he says it was argued by Virginia Maracle and Lisa Maracle Sexsmith. Although the application judge touched on the issue as it related to Virginia Maracle and Lisa Maracle Sexsmith, he failed to make the findings necessary to conduct appellate review of this aspect of his decision, especially as it relates to Andrew. For example, Andrew says Bogue is not an Indian under the Act. Bogue says that there is no evidence on the record about his status under the Act, as this argument was not raised in the court below. In addition, he submits that, if the provisions of the Indian Act apply, that Andrew has waived his rights to protection under it.

[9] We cannot consider this appeal without a determination from the court below on the issue raised with respect to the Indian Act. As a general rule, this court will decline to decide new issues on appeal: R. v. Roach, 2009 ONCA 156, 246 O.A.C. 96, at para. 6.

[10] For this reason, we return the matter to the application judge to determine the effect of the appellant’s submission with respect to the Indian Act.

[11] We award no costs.

“M.L. Benotto J.A.”

“B.W. Miller J.A.”

“Gary Trotter J.A.”