Court File and Parties

Court File No.: 4585/17 Date: 2018-09-21 Superior Court of Justice - Ontario

Re: The Toronto-Dominion Bank, Plaintiff And: Niche on Yonge Catering Ltd., Defendant

Before: Conlan J.

Counsel: Doug Bourassa, Counsel for the Plaintiff Jay Nathwani, Counsel for the Defendant

Heard: September 21, 2018

Endorsement

[1] Ivan Cavric (“Cavric”) appeals the Order of Master Mills made on November 22, 2017 (”Order”). That Order required Cavric to answer certain questions taken under advisement and refusals given during an examination in aid of execution (“Examination”) held on March 31, 2016, and that Cavric re-attend to answer further questions if pursued by The Toronto-Dominion Bank (“Bank”), and that Niche on Yonge Catering Ltd. (“Niche”) and Cavric pay costs of $4000.00, all-inclusive.

[2] In a nutshell, the Bank had sued Niche regarding a small business loan. Default Judgment was granted in favour of the Bank in the amount of $117,038.64 plus costs.

[3] Cavric was questioned during what we commonly refer to as a judgment debtor examination. Certain questions were taken under advisement, and some were refused.

[4] The Bank, unsatisfied with what had occurred during and after the Examination, moved before the Master for the relief that was granted and referred to above.

[5] Before this Court today, after abandoning certain arguments made in the Amended Notice of Appeal, Cavric’s counsel focussed on four points: (i) it was improper for the Master to require answers from Cavric that were conditional upon the provision of certain documentation by the Bank, and (ii) it was improper for the Master to require answers from Cavric to questions that had already been answered, and (iii) it was improper for the Master to require answers from Cavric to questions that were beyond the scope of such an Examination and/or irrelevant, and (iv) it was improper for the Master to award costs against Cavric personally.

[6] Both sides agree that the issues decided by the Master, possibly excepting that of costs, were ones of mixed fact and law. Both sides agree that the standard of review in this Court is one of overriding and palpable error.

[7] I will begin with the issue of the costs awarded by the Master. I agree with Cavric that it is unusual to have costs ordered personally against a corporation’s representative arising from such an Examination. I also agree with Cavric that the Bank’s materials before the Master did not explicitly request costs against Cavric. I further agree that this Court cannot ascertain the reasons as to why costs were awarded against Cavric, other than to infer that it was simply because Cavric was the only one opposing the relief sought by the Bank as Niche did not appear and was effectively defunct. I also agree with Cavric that there is no way for this Court to ascertain whether he was permitted to make submissions before the Master on the issue of personal costs.

[8] On the other hand, the Bank is correct that context is important. Cavric was fighting the relief sought, not Niche. Cavric was asking for costs in his favour, not in favour of Niche.

[9] It does not appear to me that the Master had the benefit of the decision of the Court of Appeal for Ontario in 1318847 Ontario Limited v. Laval Tool & Mould Ltd., 2017 ONCA 184, which decision was filed on this Appeal.

[10] Although decided in a different context, in my view, one of the principles enunciated by the Court of Appeal in that decision, at paragraph 79, is equally applicable to our situation: “in most cases, unequivocal notice of a litigant’s intention to seek costs from a non-party should be given as soon as reasonably possible prior to the hearing”.

[11] Counsel for the Bank candidly acknowledges that Cavric was and still is a non-party. The question is whether the overall context of the proceeding and the Bank’s prayer for relief in its Notice of Motion before the Master, in which it sought costs against “the Defendant”, amount to adequate notice.

[12] After some hesitation, I am of the view that they do. Before the Master, the dispute was entirely between Cavric personally and the Bank. Niche played no part in the proceeding or in the prelude to it. Cavric’s request for costs in his favour is a clear indication that he knew in advance that he had a personal stake in the costs of the Motion.

[13] Ultimately, I see no error in the Master’s award of costs.

[14] Turning to the other points raised by Cavric, in my view, they are easier to decide than the issue of costs. It is not for this Court to re-try the Motion. The Master had all of the necessary materials before her to determine issues of relevance, whether a question had already been answered, and whether something was beyond the scope of such an Examination.

[15] I have looked carefully at each and every question that the Master ordered be answered, and I have reviewed the relatively broad scope of subrule 60.18(2) of the Rules of Civil Procedure, and I have examined in detail the letter sent by counsel for Cavric to counsel for the Bank dated November 16, 2017 (in which, it is submitted by Cavric, certain questions that form part of the Master’s Order were already answered), and I have considered the overall context of the litigation wherein the Bank was concerned about Niche and Cavric allegedly siphoning off money and/or property to other entities.

[16] I see nothing in the nature of what questions the Master ordered to be answered (see Schedules “A” and “B” of the Order at pages 7 and 8 of the Appeal Record) that amounts to palpable and overriding error.

[17] Before further reflection, I had initially two concerns. One dealt with those items in the Order that are conditional upon something further being provided by the Bank, such as for Cavric “to identify and confirm which deposits into the account of [Niche] were loans to [Niche] or investments in [Niche] made by Cavric – to be answered within 15 days of receipt of the account history [emphasis added]”. The other dealt with whether one question ordered to be answered by the Master, number 6 on Schedule “B” dealing with whether Cavric owned or controlled D.B.J. or D.R.J., had already been answered during the Examination itself (at the top of page 188 of the transcript).

[18] In the end, I agree with counsel for the Bank on both points. There is nothing improper or prejudicial to Cavric in having him answer something upon receipt of a document from the Bank. Further, during the Examination, Cavric’s answer to whether he owned or controlled D.B.J. or D.R.J. was not completely unambiguous. “One of my companies” may very well be the same as saying he owned or controlled it, but what is the harm in having that clarified? I see none.

[19] Despite Mr. Nathwani’s able submissions, for all of the foregoing reasons, the Appeal is dismissed. Cavric has failed to meet his onus to demonstrate on balance that the Master erred in any way.

[20] As agreed between counsel in advance of the hearing of the Appeal, costs are hereby ordered against Cavric and in favour of the Bank in the all-inclusive amount of $7000.00.

[21] I thank both counsel for their helpful presentation of the Appeal.

Conlan J. Date: September 21, 2018