Court of Appeal for Ontario

Date: 2024-05-01 Docket: COA-23-CV-0325

Judges: Brown, Paciocco and Nordheimer JJ.A.

In the Matter of the Bankruptcy of Brian Wayne Flight, of the City of London, in the County of Middlesex, in the Province of Ontario

Counsel: Tara Vasdani, for the appellant K. Daniel Reason, for the respondent

Heard: April 30, 2024

On appeal from the orders of Justice Michael D. McArthur of the Superior Court of Justice, dated February 28, 2023, with reasons at 2023 ONSC 1413.

Reasons for Decision

[1] The appellant, Mr. Flight, appeals two orders of the motion judge dated February 28, 2023. He submits the orders are the product of reversible error by the motion judge. Mr. Flight asks this court to set them aside and in their stead substitute three orders.

[2] First, Mr. Flight seeks an order that the transfer to him of what this court described in Flight (Heritage Painters & Services) v. LeBlanc, 2022 ONCA 831, as the Trustee Action does not require the consent of the respondent Trustee, Adamson & Associates Inc. The respondent submits that since a request for such relief was not before the motion judge, he did not deal with it. Regardless, this court addressed this issue at para. 10 of its 2022 reasons:

On September 11, 2020, the appellant's trustee in bankruptcy filed an identical action against the respondent. On February 22, 2021, a consumer proposal submitted by the appellant was approved, annulling his bankruptcy and revesting in him all choses in action, including the one commenced by the trustee.

Given those reasons, there is no need for further comment by this court on that issue, especially since counsel advised that the issue has been taken under reserve by another motion judge below.

[3] Second, Mr. Flight seeks an order for the Trustee to produce certain documents. In his December 2022 endorsements, the motion judge put in place a process by which Mr. Flight and his counsel could inspect and scan documents in the Trustee’s possession. The motion judge’s reasons indicate he was satisfied that process provided Mr. Flight with copies of all relevant documents. Mr. Flight has not demonstrated any error in that conclusion. Mr. Flight’s characterization of the respondent’s affidavit of service of the Trustee Action as “fraudulent” is improper: Mr. Flight has not demonstrated any factual inaccuracy in the affidavit regarding attempts to serve the statement of claim through counsel. The record shows that counsel for the defendant in the Trustee Action ultimately accepted service.

[4] Finally, Mr. Flight seeks to set aside the motion judge’s award of costs to the Trustee. We are not persuaded that the motion judge made any error in principle in awarding costs or that the award was unreasonable.

[5] For these reasons, the appeal is dismissed.

[6] The appellant shall pay the respondent its costs of the appeal fixed in the amount of $5,000.00, inclusive of disbursements and applicable taxes.

“David Brown J.A.”

“David M. Paciocco J.A.”

“I.V.B. Nordheimer J.A.”