Court of Appeal for Ontario
Date: 2025-06-20
Docket: COA-24-CV-0432
Before: Janet Simmons, Paul Rouleau, S.E. Pepall
Between
Michele Baumgarten, Driftwood Beach Park Limited, 1581785 Ontario Inc., A. Baumgarten & Sons Limited, and Pigamint Investment Corporation
Plaintiffs (Respondents)
and
Audrey Lynn Kemp, James Kemp, Driftwood Beach Park Limited, 1581787 Ontario Inc., A. Baumgarten & Sons Limited, and Pigamint Investment Corporation
Defendants (Appellants)
Counsel:
Gregory F. Stewart, for the appellants
Robert W. Scriven, for the respondent
Heard and released orally: 2025-06-18
On appeal from the order of Justice Michael J. Valente of the Superior Court of Justice, dated March 18, 2024.
Reasons for Decision
[1] The appellants appeal from an order giving directions concerning the distribution of funds remaining in trust following the sale of the assets of Driftwood Beach Park Limited and reimbursement of funds by certain of the appellants to that company.
[2] We see no basis on which to interfere with the motion judge’s determinations.
[3] Particularly in light of the motion judge’s finding that the purchase of the 2022 Honda was unnecessary, his conclusion that the customizations to that vehicle added little, if any, value to the company was available on the record, and not unreasonable.
[4] Further, given the limited evidence concerning an appropriate salary for James Kemp, we would not interfere with the motion judge’s finding on that issue on the same basis.
[5] As for Ms. Kemp’s argument that the trial judge erred concerning her compensation, the notice of motion sought directions from the court. In the circumstances, it was open to the motion judge not to accept Ms. Baumgarten’s concession. This was particularly so in light of the motion judge’s decision not to award Ms. Baumgarten compensation for the work she did, and overall principles of fairness.
[6] The appeal is dismissed.
[7] Costs of the appeal are to the respondents on a partial indemnity scale in the agreed-upon amount of $7,500 inclusive of disbursements and HST.
Janet Simmons
Paul Rouleau
S.E. Pepall