Court File and Parties
COURT FILE NO.: CV-18-77320 DATE: 2020/02/20 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Cash Flow Recoveries Inc., Plaintiff, (Applicant) -and- Andrew Clifford Miracle and Andrew Maracle, Defendants, (Respondents)
BEFORE: A.E. London-Weinstein J.
COUNSEL: Andrew D. Ferguson and Dylan Dilks, for the Plaintiff, (Applicant) Ian McLean, for the Defendant, (Respondent), Andrew Miracle Andrew Maracle, not appearing
HEARD: February 4, 2020
Endorsement
[1] Counsel for the plaintiff brought a motion requesting that the stay of the execution of my order be lifted. The stay had been imposed to permit the respondents to bring cross-claims against each other as requested by counsel for Mr. Miracle. Mr. Maracle has provided notice that he is entering into bankruptcy proceedings. Therefore, the father, Mr. Miracle, will not be in a position to bring a cross-claim against his son, Mr. Maracle. The stay of the execution of my judgment is hereby lifted. The lifting of the stay in no way impacts the protection of the interests of the son, Mr. Maracle, which are safeguarded under the Bankruptcy and Insolvency Act.
[2] Further, in terms of interest I am awarding prejudgment interest at the rate of 28.82 percent from the date of the last invoice to the release of my decision on the motion. Please see below for the Prejudgment Interest Calculation:
Prejudgment Interest Calculation
Principal: $69,417.37 (para 34 of the Ruling on Motion for Summary Judgment) Interest Rate: 28.82% Days: 578 (April 3, 2018 to November 1, 2019) April 3, 2018 (date of last invoice at para 9 of the Ruling on Motion for Summary Judgment) November 1, 2019 (date of the Ruling on Motion for Summary Judgment) $69,417.37 x 28.82% = $20,006.08603 / 365 days = $54.81 per diem $54.81 per diem x 578 days = $31,625.37
[3] The court orders that the defendants shall pay the plaintiff the amount of $101,042.54 which consists of the principal amount of $69,417.37 plus prejudgment interest in the amount of $31,625.17. The court also orders that post judgment interest be paid in accordance with the s. 129 of the Courts of Justice Act.
[4] In terms of costs, there were two offers to settle this matter by the plaintiff. The first offer was for $66,000.00 dated June 20, 2019. The second was dated July 24, 2019 and was for $50,000. Neither offer to settle was accepted by the defendants and they made no offers to settle.
[5] I note that cross-examinations were held in this case, although not permitted on this motion. However, the parties agreed to the cross-examinations, so I did not regard this as a factor which would militate in favour of reducing the costs award. Costs are awarded on a partial indemnity basis in the amount of $7,201.63, inclusive of HST for fees, and disbursements of $1,468.30 (HST inclusive) for a total of $8,669.93. I declined to grant the $1,000 requested to prepare and submit the costs submissions.
[6] On the motion, counsel advised me that both prior counsel for both defendants had been apprised of this special appointment motion taking place. Neither responded. Neither attended. I received written correspondence from Mr. Miracle, the father, dated January 22, 2020 outlining why costs should not be made against him. The gist of his argument is that his son has acknowledged the debt in bankruptcy proceedings, and therefore he, the father should not be held liable. I had also previously received letters from Mr. Ian McLean, who was Mr. Miracle’s prior counsel. In my view, the son’s acknowledgment of the debt in bankruptcy is an acknowledgement that this is a debt for which he is liable. It does not absolve Mr. Miracle, the father, from his liability as a partner at the time the fuel contract was signed, for the liabilities of the partnership. The awards, including the awards for interest and costs shall be made against both defendants, however, the son, Mr. Maracle’s rights of protection under the Bankruptcy Act are not disturbed.