ONTARIO

SUPERIOR COURT OF JUSTICE

BARRIE COURT FILE NO.: 11-1021
DATE: 20120113

BETWEEN:

KENNETH MICHAUD Applicant – and – CORESLAB STRUCTURES (ONT) INC. Respondent

J.H. Fine and B. Chaplick, for the Applicant
R. Phalavong, for the Respondent

HEARD: January 6, 2012

REASONS FOR DECISION

DiTOMASO J.

THE APPLICATION

[ 1 ] The Applicant Kenneth Michaud (“Michaud”) held certain lands in trust and had been prevented from conveying those lands to an arm’s length bona fide purchaser because of a Writ of Execution registered against Mr. Michaud’s name by the Respondent Coreslab Structures (Ont) Inc. (“Coreslab”).

[ 2 ] At the original return date of this Application, namely on October 25, 2011 before Healey J., the court ordered, with the consent of the parties, that the Writ be temporarily lifted and that the transaction be permitted to close on the basis of a hold-back in the amount of the Writ ($259,683.06) until the issues could be decided on their merits. These funds remain held in the trust account of Donald McKay, solicitor for the vendors.

[ 3 ] Mr. Michaud seeks a Declaration and an order that the Writ of Execution against his name does not attach to the lands that were held by him in trust and that the funds that are currently being held in Mr. McKay’s trust account be disbursed as directed by the vendors. Further, Mr. Michaud seeks an order striking the affidavit of Doug Harman, Vice-President of Coreslab, on the grounds that Coreslab failed to abide by the court order of McDermot J. dated November 8, 2011.

[ 4 ] On that occasion, McDermot J. granted an adjournment on the basis of a consent time-table for cross-examinations and for the Respondent to file a counter-application in this matter. The matter was adjourned to December 7, 2011 subject to previously scheduled trial commitments of Coreslab’s counsel. The matter was further adjourned to January 6, 2012 before me. Coreslab sought another adjournment on January 6, 2012 which request was denied for oral reasons given. Mr. Michaud’s Application was heard on its merits on January 6, 2012.

BACKGROUND

The Parties

[ 5 ] Mr. Michaud contends that he possessed in trust certain lands located in the Town of Collingwood.

[ 6 ] Coreslab is an execution creditor of Mr. Michaud in his personal capacity but not, as Mr. Michaud asserts, in his capacity as trustee.

The Trust Lands

[ 7 ] On January 24, 2006, two parcels of abutting land in the Town of Collingwood were purchased from William Anthony Nederland, John Nederland and Geraldina Nederland.

[ 8 ] The original Agreement of Purchase and Sale was between 1595623 Ontario Limited as purchaser and the said Nederlands as vendors.

[ 9 ] For severance and Planning Act purposes, and at the recommendation of Marvin Menzies, lawyer for the then purchasers, title to one parcel of land was taken in the name of Kenneth Michaud (as a trustee) and title to the other parcel was taken in the name of 1674473 Ontario Inc.

[ 10 ] The parcel registers for the two parcels reflect one such parcel being transferred to 1674473 Ontario Inc. and the other parcel to Kenneth Michaud, which he held in trust for 1674473 Ontario Inc.

[ 11 ] Mr. Michaud executed a Declaration of Trust dated January 24, 2006, in respect of certain lands, described legally as:

Part Lot 46, Concession 12, Nottawasaga, as being Parts 1 and 2 on Plan 51R-12603, Town of Collingwood, County of Simcoe – 232 11 th Line, Collingwood (the “Trust Lands”).

[ 12 ] This Declaration of Trust has been placed in Mr. Menzies’ file since it was executed. Mr. Michaud alleges that he was possessed in trust of the Trust Lands for the benefit of 1674473 Ontario Inc. and was not, nor has ever been, a shareholder of 1674473 Ontario Inc.

[ 13 ] On April 18, 2008, both Mr. Michaud and 1674473 Ontario Inc. transferred an interest in each of the parcels in question to 1757501 Ontario Ltd.

[ 14 ] On January 14, 2010, Coreslab filed a Writ of Execution against Mr. Michaud in his personal capacity.

[ 15 ] On October 14, 2011, 1674473 Ontario Inc., 1757501 Ontario Ltd. and Kenneth Michaud agreed to sell both parcels of land to 1856257 Ontario Inc. to a corporation not related to Mr. Michaud in an alleged arm’s length bona fide transaction. The purchase price for the two parcels was $4,100,000.

The Execution

[ 16 ] Regarding this transaction, the vendor’s solicitor, Donald F. McKay, received a letter from the purchaser’s solicitors that a Writ of Execution in Mr. Michaud’s name was noted on the purchaser’s execution search.

[ 17 ] In particular, the Writ of Execution #10-0000565 (the “Execution”) showed Coreslab as Execution Creditor and Kenneth Michaud as Execution Debtor.

[ 18 ] The purchaser’s solicitors requested removal of the Execution.

[ 19 ] The closing of the transaction of purchase and sale was imminent pending the resolution of the issues relating to the execution. Closing documents for the transaction of purchase and sale had been prepared and were ready to be executed. The full balance due on closing had been paid and was sitting in trust.

The First Adjournment – the October 25, 2011 Hearing Date.

[ 20 ] This matter came before the court as an urgent Application on October 25, 2011 but was adjourned at the request of Coreslab to allow Coreslab time to file responding material and to decide if it would seek to cross-examine on the affidavits relied upon by Mr. Michaud.

[ 21 ] Healey J., on consent, also ordered the Writ of Execution be temporarily lifted to permit the transaction to close. In addition, without any liability attributed to the Writ of Execution, the Execution sum of $259,683.06 was to be held in the trust account of the vendors’ solicitor, Mr. McKay. The date of the adjournment to November 8, 2011 and the amount to be held in trust were not on consent.

[ 22 ] In accordance with Healey J.’s endorsement, the Execution was temporarily lifted and the transaction closed on November 3, 2011.

The Second Adjournment – the November 8 Hearing Date

[ 23 ] On November 8, 2011, the parties appeared before McDermot J. and the Application was adjourned for a second time, again at the request of Coreslab because counsel for Coreslab advised the court that it might commence a counter-application and also because it would be cross-examining on the affidavits relied upon by Mr. Michaud.

[ 24 ] McDermot J. ordered a time-table consented to by the parties with respect to cross-examination and delivery of materials prior to November 25, 2011.

[ 25 ] The matter was adjourned to December 7, 2011 subject to previously scheduled trial commitments on the part of Coreslab’s counsel. Further, the court was advised that Coreslab might be filing a counter-application in this matter.

[ 26 ] On November 18, 2011, in anticipation of his cross-examination, Mr. Michaud swore a supplementary affidavit regarding allegations contained in Coreslab’s materials.

Coreslab’s Failure to Comply with the Time-Table of McDermot J.

[ 27 ] Shortly after the November 8 hearing date, the parties agreed to schedule cross-examinations of Mr. Michaud and Mr. Menzies to be held on Tuesday, November 22, 2011. Mr. McKay was made available for cross-examination on November 24, 2011.

[ 28 ] The only reason for adjourning the November 8 application was to permit Coreslab to bring a counter-application and to proceed with its cross-examinations, which Coreslab had consented to completing on or before November 25, 2011.

[ 29 ] As noted by McDermot J., Coreslab delivered an affidavit sworn by Doug Harman at the November 8, 2011 hearing date. Counsel for the parties agreed that Mr. Harman would be cross-examined on his affidavit in Hamilton on November 23, 2011.

[ 30 ] By letter dated November 18, 2011, followed by an email dated November 21, 2011, counsel for Coreslab advised that Coreslab had issued a statement of claim as against Mr. Michaud and others. Coreslab’s counsel advised that as a result of its statement of claim, Coreslab would not be proceeding with its previously scheduled cross-examinations of Mr. Michaud, Mr. Menzies and Mr. McKay.

[ 31 ] By email dated November 22, 2011, counsel for Coreslab advised that he would not be producing Mr. Harman for cross-examination and the counsel for Mr. Michaud subsequently obtained a Certificate of Non-Attendance from the Court Reporter’s Office in Hamilton.

The Third Adjournment from December 7, 2011 to January 6, 2012

[ 32 ] The return date for this Application was scheduled as “second tier back-up” potentially to be heard on December 7, 2011. Subsequently it was moved to the next available date, being January 6, 2012 due to a full motions list proceeding ahead of it on the December date.

[ 33 ] The Application was heard as a priority matter on January 6, 2012 which was the date originally cleared with counsel on November 8, 2011.

[ 34 ] Counsel for Coreslab sought a fourth adjournment on the return of the Application for hearing on January 6, 2012. For oral reasons delivered, Coreslab’s adjournment request was denied and the Application was heard on its merits.

THE ISSUES

[ 35 ] There are two issues to be decided on this Application:

(a) Should the Responding Affidavit of Doug Harman be struck on the grounds that Coreslab refused to produce Mr. Harman for cross-examination?

(b) Whether the unregistered Declaration of Trust (dated January 24, 2006) ranks in priority over the Writ of Execution (dated January 14, 2010)?

POSITIONS OF THE PARTIES

Position of the Applicant

[ 36 ] Mr. Michaud takes the position that the affidavit of Doug Harman should be struck on the grounds that Coreslab refused to produce Mr. Harman for cross-examination. Even if the affidavit of Mr. Harman is not struck, Mr. Harman does not have any personal knowledge of any material facts relating to the Declaration of Trust. As Coreslab has abandoned its previous request to cross-examine Mr. Michaud and other deponents, the evidence of Mr. Michaud, Mr. Menzies and Mr. McKay is unchallenged and should be accepted by this court on its face.

[ 37 ] Rather than bringing a counter-application, Coreslab issued a Statement of Claim against Mr. Michaud and others claiming that the 1856257 Ontario Ltd. transaction ought to be set aside as a fraudulent conveyance. Mr. Michaud asserts that the mere fact that a claim has been commenced does not prevent his Application from being heard. Further, it is asserted that the Statement of Claim is an obvious attempt to make an end-run around the court ordered time-table after Coreslab repeatedly obtained adjournments based on the grounds that it needed more time to undertake cross-examinations.

[ 38 ] Also, Mr. Michaud takes the position that he is a trustee pursuant to a valid Declaration of Trust which stands in priority to Coreslab’s Writ of Execution. Accordingly, the relief sought by Mr. Michaud should be granted including declaratory relief that Mr. Michaud stands in a position of trust in respect of the Trust Lands, that the Execution does not affect or attach to the Trust Lands and that the monies held in trust by Mr. McKay ought to be disbursed as directed by the vendors of the Trust Lands.

Position of Coreslab

[ 39 ] Coreslab asserts that there are many triable issues that cannot be determined on this Application. While it is conceded that Mr. Michaud’s evidence and the evidence of Mr. Menzies and Mr. McKay is unchallenged, there still remains a triable issue as to the bona fides of the transaction and the issue as to whether or not there is a legitimate and valid Declaration of Trust. It is acknowledged by Coreslab’s counsel that Mr. Harman has no personal knowledge in respect of the Declaration of Trust. It is further conceded by Coreslab that there is no specific evidence placed by Coreslab before the court except for Mr. Harman’s affidavit. It is conceded by counsel that while Coreslab had the opportunity to file further materials and conduct cross-examinations, it did not do so, either to test the credibility of Mr. Michaud, Mr. Menzies and Mr. McKay or to challenge the legitimacy of the Declaration of Trust and the Trust Lands transaction.

[ 40 ] It was submitted that the Application ought to be consolidated with the action commenced by way of Statement of Claim issued November 18, 2011 against Mr. Michaud, 1674473 Ontario Inc. and 1757501 Ontario Ltd. However, there were no motion materials before the court in support of a consolidation order and no motion materials before the court seeking any variation of the orders of either Healey J. or McDermot J.

[ 41 ] Coreslab objects to any of the monies held in trust by Mr. McKay to be paid to any of the vendors pending disposition of triable issues by this court.

ANALYSIS

(a) Should the Responding Affidavit of Doug Harman be struck on the grounds that Coreslab refused to produce Mr. Harman for cross-examination?

[ 42 ] In respect of the first issue, I have reviewed the responding affidavit of Doug Harman. While I decline to strike Mr. Harman’s affidavit on the basis that Coreslab failed to produce him for cross-examination in accordance with the order of McDermot J., I attach little weight to his affidavit. He has no personal knowledge as to the Declaration of Trust, the circumstances surrounding its creation, ultimate purpose and execution. He simply makes bald allegations that the funds at issue are not impressed with the Trust and “it appears” that Mr. Michaud has put his assets out of the reach of Coreslab for the sole purpose of avoiding the payment of an outstanding judgment.

[ 43 ] Counsel for Coreslab conceded that the outstanding judgment had nothing to do in respect of the sale of the Trust Lands. There are further bald allegations that Mr. Michaud as president of 1674473 Ontario Inc. personally benefitted from holding title to the properties at issue. Further, Mr. Harman includes a copy of the proposed Statement of Claim in his materials which contains further allegations of fraudulent conveyance on the part of Mr. Michaud and corporate entities.

[ 44 ] I place little weight in respect of Mr. Harman’s affidavit. It contains bald allegations and not much more. In my view, it fails to present triable issues. There is no sufficient evidentiary basis to support the claims advanced by Coreslab which at this point in time amount to nothing more than suspicion.

[ 45 ] Further, Coreslab’s conduct is of no assistance in the promotion of its argument that there really are triable issues regarding the validity of the Declaration of Trust and the transaction involving the Trust Lands. Coreslab failed to comply with the order of McDermot J. by not conducting cross-examinations of Mr. Michaud and deponents in support of the Applicant. Having failed to do so and having decided to adopt a different strategy by issuing the Statement of Claim, Coreslab on the hearing of this Application cannot now complain that it lacks information. As a matter of tactics and strategy, Coreslab failed to purse cross-examinations where such information could have been obtained or the credibility of Mr. Michaud and others could have been impugned.

[ 46 ] A much more compelling case has been advanced by Mr. Michaud in support of his position when his Application Record, further Supplementary Application Record, Factum, and Replacement Factum and Book of Authorities were considered. No Book of Authorities and no Factum was filed on behalf of Coreslab.

[ 47 ] I find that there were no materials before me supporting Coreslab’s position that this Application and the Statement of Claim ought to be consolidated into one proceeding, that there are numerous triable issues that warrant Examinations for Discovery and ultimate trial. Rather, I agree with counsel for Mr. Michaud that Coreslab’s strategy in issuing a Statement of Claim does not defeat the hearing of this Application especially when there had been numerous adjournment requests on consent by Coreslab to further a much different course of action. I do not agree with Coreslab’s counsel that there is a sufficient evidentiary basis upon which to proceed as suggested by Coreslab. To the contrary, to proceed down this road would be an invitation to engage in a fishing expedition based on suspicion only which I find improper and without merit.

[ 48 ] This brings me to the second issue:

(b) Whether the unregistered Declaration of Trust (dated January 24, 2006) ranks in priority over the Writ of Execution (dated January 14, 2010)?

[ 49 ] At the heart of this Application and the Statement of Claim issued by Coreslab is the essential question of whether the unregistered Declaration of Trust (dated January 24, 2006) ranks in priority over the Writ of Execution (dated January 14, 2010).

[ 50 ] Mr. Michaud contends that the Declaration of Trust is valid and legitimate. Coreslab asserts the opposite.

[ 51 ] Mr. Michaud submits that if the prior unregistered Declaration of Trust ranks in priority over the Writ of Execution, then it follows that the Writ of Execution does not attach to the Trust Lands, nor does the Writ of Execution now attach the partial proceeds from the sale of the Trust Lands, currently held in the trust account of Mr. McKay.

[ 52 ] The statutory authority to attach a Writ of Execution to land is set out in s.9 of the Execution Act as follows:

Sheriff may sell any lands of execution debtor

9.(1) The sheriff to whom a writ of execution against lands is delivered for execution may seize and sell thereunder the lands of the execution debtor, including any lands whereof any other person is seized or possessed in trust for the execution debtor and including any lands whereof any other person is seized or possessed in trust for the execution debtor and including any interest of the execution debtor in lands held in joint tenancy.

Exception

(2) Subsection (1) does not apply to permit the seizure and sale of real property held by another person in trust for the execution debtor if the writ of execution authorizes only the seizure and sale of personal property.

[ 53 ] Subsection 9(1) provides that where another person is possessed in trust of land for the benefit of the execution debtor, then the sheriff may seize and sell the land.

[ 54 ] However, in this case, the Execution purported to attach to lands that were held by Mr. Michaud as trustee , which would be contrary to the scheme of the Execution Act .

[ 55 ] In this case, Mr. Michaud relies upon section 9(1) of the Execution Act to argue that the Writ of Execution does not apply as he did not hold the Trust Lands personally but only as Trustee for someone else.

[ 56 ] Further, Mr. Michaud relies on various authorities to support his position that the Declaration of Trust ranks in priority to the Writ of Execution.

[ 57 ] In the case of Young v. LeMon, [1] the Ontario District Court held that a prior unregistered trust agreement took priority over an execution creditor where the trust instrument was prior in time to the Writ of Fi Fa.

[ 58 ] The facts in Young v. LeMon are materially similar to the facts in the present case.

[ 59 ] The Court in Young referred to the text of Anger and Honsberger’s Law of Real Property , which provides that:

An execution creditor can sell the lands of his debtor under execution but the land to be sold is subject to the charges, liens and equities to which it was subject in the hands of the debtor . Hence, it has been repeatedly held that if there is an unregistered interest outstanding against the lands at the time that execution is lodged with the sheriff, the unregistered interest is entitled to priority over the execution. In other words the execution creditor stands in no better position than his debtor . [2] [emphasis added]

[ 60 ] In Young v. LeMon , the Court declared that the, “lands owned by the claimant, Julian Edward LeMon, are not subject to the aforementioned writ of execution” and stayed the enforcement of said writ of execution, with costs to the trustee. [3]

[ 61 ] In Young v. LeMon , the Court made the following additional point that:

The trust agreement I am dealing with here is not a manufactured document, and the law I have quoted above is clear that an unregistered trust agreement takes priority over an execution creditor where the trust agreement was prior in time to the fi fa . [4]

[ 62 ] I find the evidence in our case is uncontroverted. The Declaration of Trust is not a manufactured document. Rather, it was created based on the advice of the then purchasers’ lawyer Mr. Menzies and has been kept in that lawyer’s file since January 24, 2006.

[ 63 ] Another Ontario authority, Gibb v. Jiwan, [5] similarly held that:

a. it was established by the Supreme Court of Canada in Jellet v. Wilkie [6] that an execution creditor may claim no more than the interest of the debtor in the land, which principle shall apply unless displaced by a statutory provision to the contrary; [7]

b. the Land Titles Act does not displace the above principle, and neither does the Registry Act; [8] and,

c. one of the potential remedies in such a case is for the Court to declare that the writ of execution in question “has not affected and does not affect” the lands in question. [9]

[ 64 ] I have considered the affidavits of Mr. Michaud, Mr. McKay and Mr. Menzies contained in the Application Record as well as the further Supplementary Application Record. I have also considered the Affidavit of Doug Harman.

[ 65 ] I find in favour of Mr. Michaud that he did execute a valid Declaration of Trust dated January 24, 2006 as Trustee for 1674473 Ontario Inc. regarding the Trust Lands. The Declaration of Trust can be found in the Supplementary Record Exhibit C where Mr. Michaud signs both as the Trustee and as corporate officer of 1674473 Ontario Inc., Beneficial Owner. I also accept the further statements that the land was held in trust which can be found in Mr. Michaud’s affidavit para. 15 and his Supplementary Affidavit at paras. 22 and 28. He reaffirms that he acted as trustee pursuant to the Declaration of Trust and not in any personal capacity. Also, in his Affidavit and Supplementary Affidavit, Mr. Michaud swears that title was taken in respect of the Trust Lands in Mr. Michaud’s name as Trustee for severance and Planning Act purposes on the advice of his lawyer, Marvin Menzies who has confirmed same in his affidavit. In addition, the holding of the properties in trust was not made with the intent to defeat, hinder, delay or defraud Coreslab or anyone else of anything – simply for severance and Planning Act purposes.

[ 66 ] Mr. Michaud’s sworn evidence is unchallenged and supported by the evidence of Mr. Menzies who swears in his affidavit found in the Application Record that for severance and Planning Act purposes, title to one parcel of the land was taken in the name of Kenneth Michaud held in trust for 1674473 Ontario Inc. and title to the other parcel was taken in the name of 1674473 Ontario Inc. Mr. Menzies further deposes that he acted for 1674473 Ontario Inc. and Kenneth Michaud on the original purchase and at the time Mr. Menzies recommended that the lands be so held pursuant to a Declaration of Trust dated January 24, 2006. A true copy of that Declaration of Trust was attached to his Affidavit. Mr. Menzies further deposes that he drafted this Declaration of Trust and it has been in his file since the date it was executed on January 24, 2006.

[ 67 ] In addition, the subject lands are registered in Land Titles. As such, in his Supplementary Affidavit, Mr. Michaud deposes at para. 20 that he was advised by Mr. Menzies and verily believes it is not possible to register a Declaration of Trust under the Land Titles system, nor any mention of a trust, or notice of the Trust.

[ 68 ] I accept the evidence of Mr. Michaud and Mr. Menzies which is unchallenged and uncontroverted that the Declaration of Trust was validly created to take title in the name of Mr. Michaud as Trustee for severance and Planning Act purposes on the advice of his lawyer Mr. Menzies by Declaration of Trust dated January 24, 2006. Further, I accept the evidence of Mr. Michaud in all the circumstances that the holding of the properties in trust was not made with the intent to defeat, hinder, delay or defraud Coreslab or anyone else of anything but simply for severance and Planning Act purposes.

[ 69 ] I accept Mr. Michaud’s explanation in his Supplementary Affidavit as to why he did not disclose on a previous Judgment Debtor Examination taking title to these lands in trust. He should have and explains satisfactorily why he did not.

[ 70 ] I further accept Mr. Michaud’s evidence that in accordance with his Affidavit that he never had an ownership interest in the lands in question other than as trustee nor has he personally benefited from the holding of title to the lands in question as trustee. This evidence is unchallenged.

[ 71 ] I accept his evidence in his Supplementary affidavit that monies which are being held in trust pending resolution of this issue belong to 1674473 Ontario Inc. and 1757501 Ontario Inc. and their respective shareholders and not by Mr. Michaud. Mr. Michaud further deposes that he is not a shareholder in either of these companies. This evidence is also unchallenged.

[ 72 ] I find there is overwhelming evidence that Mr. Michaud in accordance with the Declaration of Trust dated January 24, 2006 held the Trust Lands as Trustee for the beneficial owner 1674473 Ontario Inc. There is no evidence to the contrary and this position is amply supported by the evidence of Mr. Menzies, Mr. Michaud and Mr. McKay.

[ 73 ] Further, I accept the evidence of Mr. Michaud at para. 19 of his Supplementary Affidavit wherein he deposes that with respect to 1674473 Ontario Inc., he incorporated this company with others in 2006 with the intention of it being a possible future investment vehicle. I accept his evidence which is uncontroverted, that Mr. Michaud was never financially involved with the company and it is now owned by various shareholders, none of which are Mr. Michaud.

[ 74 ] I conclude that in the present case, the Declaration in Trust is not a manufactured document. It was created on the advice of the then purchasers’ lawyer Mr. Menzies and has been kept in his file since January 24, 2006.

[ 75 ] I further find that Mr. Michaud is a Trustee holding title to certain Trust Lands on behalf of 1674473 Ontario Inc. While Mr. Michaud is a corporate officer of that company, I find he was never financially involved with the company and that it is now owned by various shareholders other than Mr. Michaud. He never had any ownership interest in the lands in question other than as Trustee. He has not personally benefitted from the holding of title to the lands in question as Trustee. Those lands were held in his name for severance and planning purposes only on the advice of his lawyer. The Declaration of Trust was executed on January 24, 2006 and has remained in Mr. Menzies’ file since then. I find that the monies being held in trust pending resolution of this issue belong to the two numbered companies 1674473 Ontario Inc. and 1757501 Ontario Inc. and their respective shareholders and not by Mr. Michaud. I further find that he is not a shareholder of either of these companies. There is no evidence to the contrary.

[ 76 ] Having so found, s.9(1) does not apply to Coreslab’s Writ of Execution. Rather, I find that s.9(1) of the Execution Act does not permit the seizure and sale of real property held by Mr. Michaud in Trust in this case.

[ 77 ] I further accept the authorities cited and relied upon by counsel for Mr. Michaud. In this regard, I conclude that the Declaration of Trust ranks in priority to the Writ of Execution.

[ 78 ] I also find that there is no juridical reason why the monies held by Mr. McKay in trust should remain deposited in his trust account. To remain so deposited would amount to pre-judgment execution which on the facts of this case is not permitted. (see Aetna Financial Services Limited v. Feigelman 1985 SCC 55 , [1985]1 S.C.R. 2 (S.C.C.))

DISPOSITION

[ 79 ] For these reasons stated, judgment shall be granted in favour of the Applicant Kenneth Michaud as follows:

1. The Applicant, Kenneth Michaud was, until the closing of the transaction of purchase and sale on November 3, 2011, possessed in trust of an interest in certain lands, described more particularly as:

PIN: 58255-0026 (LT) being Part Lot 46, Concession 12, Nottawasaga, Parts 1 & 2 on Plan 51R-12603; S/T RO 1309344, Town of Collingwood, County of Simcoe (also described as 232 11 th Line, Collingwood);

2. The Writ of Execution number 10-0000565, issued on January 14, 2010, by the Respondent Coreslab Structures (Ont) Inc., as against the Applicant, Kenneth Michaud, did not affect nor attach to the Trust Lands;

3. That the sum of $259,683.06 current being held in the trust account of Donald McKay pursuant to the Endorsement of Madam Justice Healey dated October 25,2 011 (along with any interest which may accrue on this amount), shall be dispersed as directed by the vendors of the Trust Lands in the transaction of purchase and sale, which closed on November 3, 2011;

4. That service of the Applicant’s materials in this Application be and the same is hereby validated.

[ 80 ] As for costs, I have heard submissions of counsel. The Applicant Kenneth Michaud as Trustee is entitled to costs of this Application on a partial indemnity scale. I have considered the Applicant’s costs Outline. Beyond the preparation of materials, cross - examinations did not take place although so ordered. There were numerous attendances on which adjournments were sought. The Application was argued on January 6, 2012 both as to a contested adjournment and its merits. The Applicant was successful both in resisting the adjournment request and on the merits. On a partial indemnity scale, the Applicant claims the sum of $26,343.23. Counsel for Coreslab submits the Applicant’s costs should be in the range of $5,000 - $10,000. I find the amount claimed by Mr. Michaud to be excessive. Coreslab’s submissions regarding Mr. Michaud’s costs are too low. Rather, I am of the view that the sum of $17,500 all inclusive of fees, disbursements and HST is fair, reasonable and proportional in all the circumstances. The Applicant is entitled to costs in the amount of $17,500 payable by the Respondent Coreslab Structures (Ont) Inc. to the Applicant Kenneth Michaud as Trustee within the next 30 days. Judgment to go per signed Judgment.

DiTOMASO J.

Released: January 13, 2012

[1] Young v. LeMon (1985), 1985 CarswellOnt 419, 3 C.P.C. (2d) 163 (Ont.Dist.Ct.)

[2] Young, supra note 13 at para.17

[3] Ibid. at para. 21

[4] Ibid. at para. 23

[5] Gibb v. Jiwan (1995), 1996 CarswellOnt 1222 (O.C.J. Gen. Div.)

[6] Jellet v. Wilkie (1896), 1896 49 (SCC) , 26 S.C.R. 282 (S.C.C.)

[7] Ibid at para.10

[8] Ibid at para.10

[9] Ibid at para.20