Aloe-Gunnell v. Aloe et. al,, 2015 ONSC 6147
CITATION: Aloe-Gunnell v. Aloe et. al,, 2015 ONSC 6147
COURT FILE NO.: 21119/A2
DATE: 2015-10-05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TIIU MARI-ANN ALOE and VALVE ELISABETH ALOE-GUNNELL
Plaintiffs
– and –
ESTATE OF VALDEKO ALOE, LEMBIT PETER ALOE, TOOMIS ERKI ALOE, ALO LUMBER AND BUILDING SUPPLIES, JOHN ALO DEVELOPMENTS LIMITED AND ALO CONSTRUCTION CO. LIMITED
Defendants
COUNSEL:
Mr. N. Roth, Counsel for the Plaintiff Valve Elisabeth Aloe-Gunnell
Ms. Tiiu Mari-Ann Aloe, for Self
Mr. Wm. Scott, Counsel for the Defendants
HEARD: September 28, 2015
REASONS ON MOTION SETTLING THE ORDER
VARPIO, J.
[1] A motion was brought on September 28, 2015 seeking a variety of relief including the settling of the Order resulting from the finding of contempt and sentence I imposed on Ms. Valve Aloe-Gunnell some time ago. These reasons will deal only with the issues involved in settling the Order. The other relief will be dealt with subsequently.
[2] Ms. Aloe-Gunnell’s attached a Draft Order in her motion materials. I attach a copy of that draft to these reasons as Schedule “A”. Mr. Scott, on behalf of his clients, provided the Court with a copy of his proposed changes/deletions/additions to that Order. For ease of reference, I have attached his submitted Order with handwritten changes as Schedule “B”.
[3] I will deal with each disputed point in turn.
PREAMBLE OF THE ORDER
[4] Prior to deciding this disputed point, I should note that the parties have advised me that the sentence portion of my reasons has been appealed to the Court of Appeal. Mr. Scott suggested that two Orders were appropriate in the circumstances: One finding Ms. Aloe-Gunnell in contempt, the second imposing sentence. Because only the sentence is being appealed to the Court of Appeal, it was suggested that two Orders would make the argument easier to follow. Accordingly, as noted in Schedule “B”, Mr. Scott’s clients hope to have the term “following the decision and Order of Justice Varpio, on January 13, 2015, finding the Plaintiff in contempt of Justice Koke’s Order of March 11, 2012” added to the preamble. This would be necessary if two Orders were ultimately issued.
[5] Mr. Roth suggests that one Order is appropriate.
[6] I agree with Mr. Roth in this regard. One Order reduces the already sizeable quantum of paper located in the file and provides the “cleanest” Order possible.
PRAYER FOR RELIEF
[7] In his paragraphs 1 through 12, Mr. Roth performed a “cut and paste” from the Applicants’ prayer for relief in their Motion Record seeking a finding of contempt. Mr. Roth indicates that laying out the full nature of what was sought in the motion is appropriate as failure to do so would not give an appellate court full breadth of that which was sought.
[8] Mr. Scott indicates that much of what was initially sought was either resolved before the hearing or abandoned once the narrow finding of contempt was made. Mr. Scott indicated that inclusion of all items in the prayer for relief might mislead an appellate court into believing that the full breadth of the motion was argued.
[9] It occurs to me that, irrespective of whether specific items of relief were argued, the Respondent had to prepared responding materials dealing with to the allegations contained in paragraphs 1 through 12 of Schedule “A”. Even if all those points were not argued, the Respondent was still in jeopardy with respect to those items until the moving parties abandoned their pursuit of same. Accordingly, I agree with Mr. Roth that paragraphs 1 through 12 of the Order should read as indicated by him in Schedule “A”.
AFFIDAVITS
[10] It was conceded by all parties that the affidavit listed in paragraph m. of the “affidavits portion” of Schedule “A” was never placed before the Court and, as a result, should not be listed in the Order. I agree.
OTHER MATERIALS CONSIDERED
[11] The parties agreed that in Mr. Roth’s paragraph “b.” regarding the “vexatious litigant” head of relief, the date should be omitted.
FINDINGS
[12] As indicated above, I am content that only one Order be entered in this matter and, as such, paragraph 1. of the “THIS COURT ORDERS THAT” portion of Schedule “A” ought to remain in the Order (i.e. “Valve Aloe-Gunnell is in contempt of the Order of Mr. Justice Koke of March 11, 2011”).
[13] Ms. Aloe-Gunnell’s counsel indicated that he consents to the changes suggested by Mr. Scott to paragraphs 4 through 7 of his Draft Order at Schedule “A”.
[14] With respect to paragraph 8 of the Draft Order, Mr. Scott indicated that he was concerned that the inclusion of the term “dismissed as abandoned” might indicate that this Court made a determination as regards the merits of those claims ultimately abandoned. I disagree. As I indicated at paragraph 16 of my Partial Reasons for Sentence dated February 13, 2015: “The moving parties have indicated that, upon receipt of these reasons, they will abandon those grounds of contempt that require viva voce evidence, as per my previous decision”. Given this sentence, it is clear that the moving parties abandoned their further claims once Ms. Aloe-Gunnell was found in contempt on a narrow evidential basis. Accordingly, paragraph 8 of Ms. Aloe-Gunnell’s Draft Order will remain unchanged (i.e. it will read “THIS COURT ORDERS THAT the relief sought by the moving parties which require viva voce evidence, be and the same is hereby dismissed as abandoned”.)
PAYMENT OF FUNDS AND INTEREST CHARGED
[15] This portion of the contempt Application was muddled with respect to how much monies were to be disbursed by Mr. Scott from his trust account and, as a result, paragraphs 12 and 13 of Schedule “A” will need to reflect the changed quantum agreed upon by the parties.
[16] For clarification, at paragraphs 21 and 22 of my Continued Reasons for Sentence, dated March 24, 2015 read as follows:
[21] Thus, I order that Mr. Scott release $67,428.30 to Ms. Aloe-Gunnell within 7 days of this judgment ($150,000 - $59,516.87 - $23,054.83 = $67,428.30). I further Order that Ms. Aloe-Gunnell pay the $10,000 fine within 2 business days of the receipt of these funds.
[22] With respect to Ms. Aloe-Gunnell’s claim for interest, I agree that she is entitled to interest on $290,483.13 ($90,483.13 + $200,000 already released = $290,483.13) pursuant to the Courts of Justice Act. Mr. Scott has 30 days from the date of the release of the judgment to pay the appropriate amount of interest to Ms. Aloe-Gunnell’s solicitor.
[17] The sum $67,428.30 to be remitted by Mr. Scott to Ms. Aloe-Gunnell’s lawyer was achieved in the following manner: (a) $350,000 payment contemplated by Mr. Justice Koke’s March 11, 2011 Order; (b) minus costs to be paid by Ms. Aloe-Gunnell on the contempt motion ($59,516.87); (c) minus those funds to be held in trust by Mr. Scott pending Ms. Aloe-Gunnell’s dispute with her former solicitor ($23,054.83); (d) minus $200,000 already paid to Ms. Aloe-Gunnell. Accordingly, the math flowed as follows: $350,000 - $59,516.87 - $23,054.83 - $200,000 = $67,428.30.
[18] The parties indicate to me that the number to be remitted to Ms. Aloe-Gunnell failed to take into account both the costs of the New York Action and the costs ordered by Mr. Justice Koke. The parties agree therefore that the sum to be disbursed is actually $35,986.77 which reflects deductions for all the aforementioned sums. Based upon this consent, paragraph 13 of Schedule “A” should be amended accordingly (“THIS COURT ORDERS THAT William Scott pay to Valve Aloe-Gunnell the sum of $35,986.77 within seven days of the release of the reasons settling the Order”).
[19] With respect to interest, it is appropriate that Ms. Aloe-Gunnell receive some interest on the monies that were held by Mr. Scott. Given the change in the amount to be remitted above, the interest should not be charged upon $290,483.13 as this figure does not account for the deductions described above.
[20] Given the agreed-upon changes to the calculations, Ms. Aloe-Gunnell is owed interest upon those sums of money that she actually received from the Settlement, that is $235,986.77 ($200,000 previously received from Mr. Scott + $35,986.77 = $235,986.77).
[21] Mr. Roth asks for interest going back to the date that the Settlement was reached, namely March 11, 2011. Mr. Scott indicates that such a calculation would be unfair since it was largely Ms. Aloe-Gunnell’s actions that have thwarted the finalization of the settlement. Further, given the fact that Ms. Aloe-Gunnell pursued a New York action (a pursuit that constituted the gravamen of the contempt finding), Mr. Scott could not transfer the funds from his trust account into investment vehicles with better interest rates. Simply put, the money sat in his trust account pending disposition of that matter.
[22] Mr. Roth indicates that it was not Ms. Aloe-Gunnell’s sole actions that have delayed the finalization of the settlement as several documents that his client was supposed to sign to effectuate settlement were ultimately not signed prior to sentencing since they were poorly drafted and/or overly broad.
[23] While I accept much of Mr. Roth’s position, I do not agree that Ms. Aloe-Gunnell should receive interest dating back to March 11, 2011. Within days of reaching settlement, Ms. Aloe-Gunnell attempted to repudiate same. Further, she was found in contempt by Justice Koke for transferring property which caused delay. She then commenced a New York action whose disposal caused further delay. While some of the delay may have been attributable to the moving parties, Ms. Aloe-Gunnell’s actions undoubtedly caused considerable delay and Mr. Scott’s decision to keep settlement monies in his trust account was sound. Accordingly, I find that Ms. Aloe-Gunnell is owed interest on $234,986.77 commencing the date that Ms. Aloe-Gunnell’s appeal period for the substantive portion of the New York lawsuit expired.
COSTS
[24] The matter setting the Order took half a day to argue. This is not surprising given the fact that the litigation has been ongoing for 15 years. Indeed, the litigation has taken on a life of its own to the extent that some of the counsel present did not know the nature of the originating process in this file (i.e. Statement of Claim, Application, etc.) In light of the divided result and the belabored manner in which the litigation has generally been conducted, I order both sides to pay their own costs as regards settling the Order. I will deal with costs for other relief sought when I release those reasons.
Varpio, J.
Released: October 5, 2015
CITATION: Aloe-Gunnell v. Aloe et. al,, 2015 ONSC 6147
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
TIIU MARI-ANN ALOE and VALVE ELISABETH ALOE-GUNNELL
- and -
ESTATE OF VALDEKO ALOE, LEMBIT PETER ALOE, TOOMIS ERKI ALOE, ALO LUMBER AND BUILDING SUPPLIES, JOHN ALO DEVELOPMENTS LIMITED AND ALO CONSTRUCTION CO. LIMITED
REASONS ON MOTION
Varpio, J.
Released: October 5, 2015