Court File and Parties

Court of Appeal for Ontario Date: 2023-11-09 Docket: COA-23-CV-0301

Judges: Doherty, Pepall and Zarnett JJ.A.

In the Matter of the Bankruptcy of Jonathan Gary Beach, a.k.a. Johnathan Gary Beach of the Village of Inverary in the County of South Frontenac in the Province of Ontario

BETWEEN

Heliotrope Investment Corporation Applicant (Respondent)

and

Jonathan Gary Beach, a.k.a. Johnathan Gary Beach Debtor (Appellant)

And In the Matter of the Bankruptcy of Martha Lorraine Beach, a.k.a. Martha Beach of the Village of Inverary in the County of South Frontenac in the Province of Ontario

BETWEEN

Heliotrope Investment Corporation Applicant (Respondent)

and

Martha Lorraine Beach, a.k.a. Martha Beach Debtor (Appellant)

Counsel: Jonathan Gary Beach and Martha Lorraine Beach, acting in person Percy Ostroff, Denise Sayer and Adam Stikuts, for the applicant (respondent)

Heard and released orally: November 3, 2023

On appeal from the judgment of Justice Ryan Bell of the Superior Court of Justice, dated November 18, 2022.

Reasons for Decision

[1] The appellants bring a motion to introduce fresh evidence on the appeal. Much of the proposed evidence or its equivalent could have been put before the application judge on the hearing by the exercise of due diligence (e.g. the correspondence predating the hearing, the pleadings in other litigation, complaints to regulatory authorities, and the substance of the “Lynch Report”). Other parts of the fresh evidence have no possible evidentiary value on any of the issues before the application judge (e.g. the pleadings in another action, a complaint apparently made to the OPP, and information contained in large parts of the “Lynch Report”).

[2] The proffered evidence is an attempt to continue the ongoing, multi-faceted, factual disputes between the parties. It cannot assist in resolving the appeal before this court at this time. The evidence will not be admitted.

[3] Turning to the appeal itself, we see no error in the reasons of the application judge. As the application judge observed, the appellants did not seriously contest the claim that each of them owed a debt of $1,000 or more to Heliotrope, the petitioning creditor, at the date of the petition. The evidence fully supported this finding. Similarly there was ample evidence, including the cross-examination of the appellants, to support the finding that the appellants had ceased to meet their liabilities generally as they became due. This failure applied to debts owed to a number of different creditors, some of whom were unrelated to the petitioning creditor.

[4] Finally, the application judge made no error when she concluded there were no grounds upon which to exercise her discretion to either refuse the order sought, or grant a stay of the bankruptcy.

[5] The appeal is dismissed.

[6] The respondent, as the successful party, seeks costs. Unfortunately, counsel had not shared their Bill of Costs with the appellants, who are self-represented. The appellants are entitled to an opportunity to review the Bill of Costs. The respondents were directed at the end of oral argument to provide a copy to the appellants and the parties were directed to make written submissions on costs by November 10, 2023.

“Doherty J.A.”

“S.E. Pepall J.A.”

“B. Zarnett J.A.”