Maracle (Re), 2026 ONSC 449
ONTARIO
SUPERIOR COURT OF JUSTICE
IN BANKRUPTCY and INSOLVENCY
IN THE MATTER OF THE BANKRUPTCY OF ANDREW CLIFFORD MARACLE III OF THE COUNTY OF HASTINGS IN THE PROVINCE OF ONTARIO
Ken Page, for Schwartz Levitsky Feldman Inc. (as Trustee in Bankruptcy for Andrew Clifford Maracle III)
Ian J. Collins, for Andrew Clifford Miracle
Greg Roberts, for Glenn Bogue
Jeff Larry, for Schwartz Levitsky Feldman Inc. (as court appointed receiver of Andrew Clifford Miracle)
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ANDREW CLIFFORD MIRACLE Applicant
– and –
ANDREW CLIFFORD MARACLE III, JASMINE JOHNSON, CANADIAN IMPERIAL BANK OF COMMERCE (CIBC) Respondents
Ian J. Collins, for Andrew Clifford Miracle
Jeff Larry, for Schwartz Levitsky Feldman Inc. (as court appointed receiver of Andrew Clifford Miracle)
Greg Roberts, for Glenn Bogue
Emily Paslawski, for Canadian Imperial Bank of Commerce
BETWEEN:
GLENN BOGUE Plaintiff
– and –
ANDREW CLIFFORD MIRACLE, ANDREW CLIFFORD MARACLE III, SMOKIN’ JOES and SMOKIN’ SPEEDWAY, VIRGINIA MARACLE, LISA SEXSMITH MARACLE operating as SMOKIN’ SPEEDWAY and YOLANDA MARACLE Defendants
Greg Roberts, for Glenn Bogue
Ian J. Collins, for Andrew Clifford Miracle
Jeff Larry, for Swartz Levitsky Feldman (as court appointed receiver of Andrew Clifford Miracle)
HEARD: 3 October 2025, at Belleville
REASONS FOR DECISION
MEW J.
1The motions now before the court address the latest chapter in a long-running and multifaceted dispute concerning ownership, profits, and enforcement remedies tied to an on-reserve enterprise known as Smokin’ Joes. At its heart it is a family quarrel between a father, Andrew Clifford Miracle (“Senior”), and his son, Andrew Clifford Maracle III (“Junior”), both Mohawks of the Bay of Quinte and thus “Indians”1 within the meaning of the Indian Act, R.S.C., 1985, c. I-5.
2The litigation, now well into its second decade, has generated a substantial arbitral award, a receivership order, two decisions of the Court of Appeal, two unsuccessful motions for leave to appeal to the Supreme Court of Canada, and a constellation of motions, cross motions, and applications advanced by Senior and by those who assisted Senior in obtaining the arbitral success he has yet to realise in monetary terms.
3The narrative that follows is limited to the procedural and substantive history that bears upon the issues presently before the court. It is drawn from the parties’ motion records, prior endorsements of Kershman J., and the reasons of the Court of Appeal in Bogue v. Miracle, 2022 ONCA 672, as well as my own reasons released on 4 April 2024 (reported at 2024 ONSC 1964), which addressed a number of motions and applications, including a motion for summary judgment brought by Senior’s former lawyer Glenn Bogue for payment of fees claimed by him pursuant to a contingency fee agreement.
Genesis of the Dispute and the Arbitration
4The dispute began as an action for an accounting, tracing, and related relief arising from the partnership and operation of Smokin’ Joes. In 2016, the parties agreed to resolve their dispute through a mediation-arbitration process (their partnership agreement included an arbitration clause). The arbitrator awarded Senior $11,486,238 as his share of undistributed profits and ordered dissolution of the partnership, together with a buy/sell mechanism which, upon Junior’s failure to bid, resulted in Senior acquiring Junior’s interest in the business and the land upon which it sits for $1.
5The award was confirmed by Kershman J. in Maracle v. Miracle, 2017 ONSC 5876, and leave to appeal was refused in March 2018.
6Notwithstanding the arbitral success and subsequent judicial confirmation, no part of the monetary award has been collected by Senior.
The Role of Mr. Bogue and Mr. Gram
7Senior was represented at the arbitration by Glenn Bogue, who at the time was a practising lawyer, pursuant to a contingency fee agreement which stipulated that: “Counsel will receive a contingency fee of 25% of the amount awarded by the Arbitrator.”
8Rod Gram, a Chartered Professional Accountant, provided consulting services that included identifying accounting irregularities and contributing evidence that the arbitrator described as “conservative, credible and explained in great detail.”
9Mr. Bogue claimed fees of $2,871,000 (later framed as $2,858,500 outstanding), and Mr. Gram claimed $729,112.59 plus interest. Mr. Bogue has not been paid. The claim by Mr. Gram has been resolved.
10A Notice of Solicitor’s Lien was allegedly served by Mr. Bogue in March 2017. Senior now challenges whether the notice was validly served.
11In January 2018, Senior executed an Assignment Agreement acknowledging amounts owing to Mr. Bogue and Mr. Gram among others, an acknowledgment that featured prominently in later receivership proceedings.
Junior’s Bankruptcy and the Dividend
12Junior made an assignment in bankruptcy on 23 September 2019 and was discharged on 24 June 2020. The Trustee in Bankruptcy (the “Trustee”) has declared a dividend of $1,458,725.16 against proved claims of $15,175,955.42 (less the statutory levy), with Senior’s share of the dividend being $1,345,636.84. That fund has since become a focal point for competing claims and enforcement strategies.
The Receivership Order and the Related Appeals
13On 11 October 2019, at Mr. Bogue’s instance, Kershman J. made an order appointing Schwartz Levitsky Feldman Inc. as receiver (the “Receiver”) over “all of the assets, undertakings and properties” of Senior (the “Appointment Order”). According to Mr. Bogue, Kershman J. was not told about Junior’s bankruptcy. The Appointment Order contained a stay of proceedings (para. 9), precluding steps against the debtors’ property absent consent of the Receiver or leave of the court.
14Senior appealed. He asserted that the application judge had erred because: (i) he had no authority to make a final order for a receiver; (ii) there was no money owed to Mr. Bogue for fees on the contingency agreement; and (iii) the final order for a receiver contravened ss. 29 and 89 of the Indian Act, which prohibit the enforcement by a non-status Indian against the assets of an Indian situated on a reserve.
15The Court of Appeal remitted what it considered to be the pivotal threshold issue – whether appointing a receiver to recoup profits from on-reserve businesses contravened s. 89 of the Indian Act – to the application judge for determination: Bogue v. Miracle, 2021 ONCA 278.
16On 15 November 2021, Kershman J. concluded that the receivership fell within a “commercial mainstream” exception under s. 89 and, hence, could extend to on-reserve assets.
17Senior appealed again.
18On 29 September 2022, Tulloch J.A., for a unanimous court, allowed Senior’s appeal: Bogue v. Miracle, 2022 ONCA 672. The Court held that s. 89 of the Indian Act protects all on-reserve assets from seizure by non-Indians, regardless of their commercial character, and that the “commercial mainstream” exception recognised in the jurisprudence under s. 90(1) does not extend to s. 89: at para. 37. The Receiver could not recoup profits from Senior’s on-reserve businesses, although off-reserve assets remained amenable to seizure. Leave to appeal to the Supreme Court of Canada was dismissed in 2023.2
The 2024 Motions and Applications
19In April 2024, rulings were made on six motions and applications that had been heard earlier that year (Bogue v. Miracle, 2024 ONSC 1964):
a. Senior’s application to declare Mr. Bogue a vexatious litigant (dismissed);
b. Senior’s motion for security for costs (dismissed);
c. Mr. Bogue’s motion for a declaration of a solicitor’s lien (granted) and a charging order (dismissed);
d. Mr. Bogue’s summary judgment motion for $2,858,500 (granted);
e. Mr. Gram’s summary judgment motion (summary judgment denied; claim subsequently resolved);
f. Senior’s counterclaim (dismissed on summary judgment as devoid of merit); and
g. Senior’s motion in the bankruptcy file for immediate payment of his dividend (dismissed, without prejudice, pending proper notice and full argument, including as to the statutory levy).
20Senior unsuccessfully appealed the April 2024 rulings to the Court of Appeal: Bogue v. Miracle, 2025 ONCA 188.3
The Current Position
21The Trustee is holding the dividend at its bank account in Toronto. Senior’s share of the dividend is currently $1,459,413.17,4 which is available for distribution, subject to the Court’s directions and the competing claims.
22Mr. Bogue argues that his solicitor’s lien attaches to Senior’s share of the bankruptcy dividend. However, the Receiver’s position is that Mr. Bogue’s lien cannot be enforced against the funds held by the Trustee, but, rather, attaches to the funds once they enter the Receiver’s hands pursuant to the Appointment Order. Senior argues that the lien is not valid and, even if it is valid, that it cannot be enforced against him or his share because of the Indian Act.
23The effect of the Court of Appeal’s decision (2022 ONCA 672) is that the Receiver maintains authority with respect to any off-reserve assets of Senior, subject to the constraints recognised by the Court.
The Motions Presently Before the Court
24These reasons address the following motions:
a. Senior’s motion in the bankruptcy of Junior seeking orders:
i. that the approved claim of Senior be paid out to the credit of Senior;
ii. declaring that the solicitor’s lien of Glenn Bogue is invalid and, even if valid, cannot take precedence over the approved claim of Senior; and
iii. that the levy imposed by the Superintendent of Bankruptcy in the amount of $55,441.91 deducted from the approved claim of Senior be cancelled and deleted.
b. Glenn Bogue’s motion in the bankruptcy of Junior and the other related proceedings for orders:
i. declaring that Mr. Bogue is a secured creditor giving him a priority over all other creditors, including other secured creditors, of Junior in the bankruptcy proceeds currently being held by Schwartz Levitsky Feldman Inc. as Trustee;
ii. amending the court’s judgment of 4 April 2024 to add pre-judgment interest; and
iii. pursuant to sections 38(1) and/or 243(1)(c) of the Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, assigning to Mr. Bogue the right, title and interest in the prosecution of Court File No. CV-13-0284-00 from Schwartz Levitsky Feldman Inc. in its capacity as court appointed Receiver for Andrew Clifford Miracle.
c. The Receiver’s motion for orders:
i. approving the Receiver’s First Report and the actions and activities of the Receiver described therein;
ii. approving the Receiver’s interim statement of receipts and disbursements as of 15 September 2025;
iii. approving the fees and disbursements of the Receiver and its lawyers, past and present;
iv. declaring that s. 89(1) of the Indian Act does not apply to Senior’s share of the dividend declared by the Trustee;
v. authorising and directing the Trustee to transfer Senior’s share of the dividend to the Receiver for distribution; and
vi. approving the interim distributions proposed in the First Report.
25The requested amendment of the 4 April 2024 judgment is not opposed and is based on the “slip” rule (Rule 59.06 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194). An order shall therefore go amending the judgment to include prejudgment interest that was inadvertently omitted from the original judgment.
Issues
26The following issues remain to be determined:
a. Senior’s entitlement to payment of his share of the dividend declared in Junior’s bankruptcy, without regard to Mr. Bogue’s or the Receiver’s claims, by virtue of sections 89 and 90 of the Indian Act;5
b. Whether, by virtue of section 89 of the Indian Act, Senior is exempt from the levy otherwise payable pursuant to section 147 of the Bankruptcy and Insolvency Act;
c. Whether Mr. Bogue’s solicitor’s lien is valid and enforceable against Senior and/or the Receiver;
d. If Mr. Bogue’s lien is valid and enforceable,
i. whether he is a secured creditor in Junior’s bankruptcy, thereby enjoying priority over Junior’s other creditors (secured and unsecured);
ii. if not, whether the lien entitles Mr. Bogue to priority status in respect of the funds available for distribution by the Receiver; and
iii. if Mr. Bogue’s lien gives him priority status, whether his priority takes precedence over the claims for payment of the fees and disbursements of the Receiver and its lawyers.
e. Whether the other relief sought by the Receiver should be granted, namely:
i. approving the Receiver’s First Report and the actions and activities of the Receiver described therein;
ii. approving the Receiver’s interim statement of receipts and disbursements as of 15 September 2025;
iii. approving the fees and disbursements of the Receiver and its lawyers;
iv. authorising and directing the Trustee to transfer Senior’s share of the dividend to the Receiver for distribution; and
v. approving the interim distributions proposed in the First Report.
f. Whether the Receiver’s interest in the prosecution of Court File No. CV-13-0284-00, in which Senior is the plaintiff and the only extant defendant is Canadian Imperial Bank of Commerce (“CIBC”) should be assigned to Mr. Bogue; and
g. Whether an order should be made discharging the Receiver.
Senior’s Entitlement to Payment of Dividend
27Senior argues that ss. 89 and 90 of the Indian Act protect his entitlement to receive his full share in the dividend approved in the bankruptcy of Junior. The relevant portions of those sections provide:
Restriction on mortgage, seizure, etc., of property on reserve
89 (1) Subject to this Act, the real and personal property of an Indian or a band situated on a reserve is not subject to charge, pledge, mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of any person other than an Indian or a band.
Property deemed situated on reserve
90 (1) For the purposes of sections 87 and 89, personal property that was
(a) purchased by Her Majesty with Indian moneys or moneys appropriated by Parliament for the use and benefit of Indians or bands, or
(b) given to Indians or to a band under a treaty or agreement between a band and Her Majesty,
shall be deemed always to be situated on a reserve.
28Senior’s position is that notwithstanding that the bankruptcy funds are held by the Trustee in a bank account in Toronto, they remain the “personal property of an Indian situated on a reserve” within the meaning of s. 89(1) because all of the money in the bankruptcy fund originated as Junior’s personal property on the Tyendinaga Reserve – from his on‑reserve business assets including his interest in an on-reserve business called Smokin’ Speedway.
29The assertion that the bankruptcy funds remain “situated on the reserve” is based on the opinion of Dickson C.J.C. in Mitchell v. Peguis Indian Band, 1990 117 (SCC), [1990] 2 S.C.R. 85. The issue in Mitchell was whether certain moneys which the Government of Manitoba had agreed to pay to, inter alia, the Peguis Indian Band, and garnished before judgment by non-Indian judgment creditors of the Band, could be considered “personal property of ... a band situated on a reserve” within the meaning of s. 89(1), and therefore not subject to attachment.
30Dickson C.J.C. concluded that it would be inconsistent with the explicit protection in certain circumstances which s. 89(1) provides against attachment of personal property of an Indian by a non-Indian to interpret s. 90 (which extends s. 89’s protection) in a restrictive manner. Accordingly, in his view, the funds held by Manitoba (and, hence, Her Majesty) off-reserve which it had agreed to pay to the Band should be deemed to be “personal property” of the Band because s. 90(1)(b) includes intangible property such as the right to payment of money.
31Senior contends that there exists, in effect, an “agreement” between the Crown (the Trustee being regulated and supervised by the Superintendent of Bankruptcy) and Indians, analogous to the agreement between the Crown and the Band in Mitchell. Accordingly, even if the funds held by the Trustee are physically held off-reserve, he argues that they are deemed to be situated on-reserve.
32The fundamental difficulty with Senior’s reliance on Mitchell is that the majority of the Supreme Court did not subscribe to Dickson C.J.C.’s views on the scope of s. 90. Indeed, La Forest J., at p. 145 of Mitchell, considered it:
… entirely reasonable to expect that Indians, when acquiring personal property pursuant to an agreement with [a Crown entity], will recognize that the question whether the exemptions of ss. 87 and 89 should apply in respect of that property, regardless of situs, must turn on the nature of the property concerned. If the property in question simply represents property which Indians acquired in the same manner any other Canadian might have done, I am at a loss to see why Indians should expect that the statutory notional situs of s. 90(1)(b) should apply in respect of it.
33Furthermore, as Dickson C.J.C. himself acknowledged at p. 101 of Mitchell, it appeared to have been conceded for the purposes of the appeal that without s. 90, the Band would fail because the situs of a debt was the location of the debtor, which was off-reserve. As the issue of situs had not been argued, his comments on the interplay between sections 89 and 90 were clearly made in obiter.
34In McDiarmid Lumber Ltd. v. God's Lake First Nation, 2006 SCC 58, [2006] 2 S.C.R. 846, McLachlin C.J.C. considered the potential application of s. 89(1) of the Indian Act to funds held by a band in an off-reserve bank account in Winnipeg. Some, or all, of the funds in the account had been deposited pursuant to a funding arrangement with the federal government, under which the band received funds for various purposes, some of which (e.g. on-reserve education) were “closely related to the Crown’s [treaty] obligations”. Notwithstanding the close substantive connection to the reserve, McLachlin C.J.C held that “property must be physically located on a reserve” in order for s. 89 to apply.
35In Maracle v. Ontario (Minister of Revenue), [1993] O.J. No. 1173 (Ont. Gen. Div.), Charron J. determined that s. 89 of the Indian Act did not extend protection to all property owned by an Indian resident on a reserve no matter where it was found. In that case, the property in question were funds in the form of gasoline tax refunds, which had been seized by provincial revenue authorities to partially satisfy a tax assessment made against Andrew Clifford Maracle, as well as funds in bank accounts located in branches off the reserve and the contents of a safety deposit box located at a bank off the reserve. Citing Mitchell, Charron J. stated, at para. 21:
The applicant chose to enter into the commercial mainstream of society by engaging in the business of a retailer of gasoline products. In doing so he enjoyed no immunity from taxation under section 87 of the Indian Act since it was his retail customers on the reserve who constituted tax exempt purchasers and consumers of the gasoline products. Having chosen to carry on a business regulated by the Gasoline Tax Act, the applicant was subject to the collection scheme of that statute. That scheme required him to purchase gasoline supplies from suppliers at prices that included amounts ultimately payable as tax by the applicant's retail customers. Since the applicant's business was located on reserve lands and many of the customers were tax-exempt, the applicant was then entitled to apply to the Ministry for a refund of all or a portion of the notional tax component charged to him by his suppliers. The same Mitchell case makes it quite clear that sections 87 and 89 of the Indian Act were enacted in recognition of an obligation to protect the property of native peoples but that this was limited to certain well-defined classes of property. The Act was not meant to confer a general economic advantage upon Indians engage [sic] in commercial activities. One passage from La Forest J.'s judgment on this point was referred to above in the Williams [v. Her Majesty The Queen, 1992 98 (SCC), [1992] 1 S.C.R. 877 (S.C.C.)]. Several other passages may be referred to. At p.133:
... s.89 is not meant to arm Indians with privileges they can exercise in acquiring and dealing with property in the general market-place, but, rather, is simply limited in its purpose to preventing non-natives from interfering with the ability of Indians to enjoy such duly acquired property as they hold on their reserve lands...
36Charron J. held that the gasoline tax refunds and the contents of the safety deposit box were not protected from attachment by s. 89. She declined to make a determination on whether the funds held in the bank accounts would be subject to seizure in the absence of evidence of a clear nexus between these funds and Mr. Maracle’s occupancy of reserve lands.
37In Williams v. Canada, 1992 98 (SCC), [1992] 1 S.C.R. 877, the Supreme Court underlined that the purpose of s. 89 is to protect “the use of Indians’ property on their reserve lands”. As Gonthier J. explained, at p. 887:
… under the Indian Act, an Indian has a choice with regard to his personal property. The Indian may situate this property on the reserve, in which case it is within the protected area and free from seizure and taxation, or the Indian may situate this property off the reserve, in which case it is outside the protected area, and more fully available for ordinary commercial purposes in society.
38Section 71 of the Bankruptcy and Insolvency Act, provides that any property of a bankrupt – in this case, Junior – “vest[s] in the trustee” upon an assignment into bankruptcy. Even after the bankrupt’s discharge, property is not re-vested in Junior unless it is “incapable of realization” – which is clearly not the case with the dividend, a cash fund held by the Trustee. In the present case, Junior made a voluntary assignment into bankruptcy and by doing so chose to surrender his assets to an off-reserve Trustee. Accordingly, even if the location of the dividend was relevant, it is no longer Junior’s property, having vested in the Trustee at the time of Junior’s assignment in bankruptcy.
39The protection of s. 89 is no longer available to Junior. As Saunders J. observed in Smoke (Re) (1987), 65 C.B.R. (N.S.) 126 (Ont. Sup. Ct.), rev’d on other grounds, 1989 CarswellOnt 197, 77 C.B.R. (N.S.) 263, (Ont. C.A), the proceeds of the sale of property which was covered by the bankruptcy assignment of the bankrupt, who was presumed to be an Indian resident on a reserve, was property which the bankrupt “had agreed to assign when he availed himself of the bankruptcy process” and, hence, the bankrupt lost the benefit of the protection afforded by s. 89(1) with respect to the proceeds of the sale.
40I therefore agree with the Receiver’s submission that there is no longer any relevant on-reserve economic activity of Junior that requires protection under s. 89. The debt that gave rise to Senior’s provable claim in bankruptcy has now been terminated in law as a result of Junior’s discharge from bankruptcy. The sole extant legal relationship arising from that previous debt is between Senior and the Trustee. In that regard, Senior stands in no different a position vis-à-vis the bankruptcy dividend than any other unsecured claimant.
41Accordingly, Senior’s motion for an order requiring the Trustee to pay to Senior his share of the bankruptcy dividend is denied.
Application of Bankruptcy Act Levy
42Senior argues that Section 89 of the Indian Act prohibits the imposition of the levy imposed by the Superintendent of Bankruptcy, under section 147 of the Bankruptcy and Insolvency Act, against his share of the approved claim. He relies on Dickson C.J.C.’s opinion in Mitchell, which in turn derives support from the principle articulated in Nowegijick v. The Queen, [1983] 1 S.C.R. 9, that “statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indians.”
43Counsel were not able to provide any authority one way or the other on this issue. Nor did the Court have the benefit of submissions on behalf of the Superintendent of Bankruptcy, despite notification of the motion hearing having been provided to the Department of Justice.
44Section 147 provides:
Levy payable out of dividends for supervision
(1) For the purpose of defraying the expenses of the supervision by the Superintendent, there shall be payable to the Superintendent for deposit with the Receiver General a levy on all payments, except the costs referred to in subsection 70(2), made by the trustee by way of dividend or otherwise on account of the creditor’s claims, including Her Majesty in right of Canada or of a province claiming in respect of taxes or otherwise.
Rate of levy
(2) The levy referred to in subsection (1) shall be at a rate to be fixed by the Governor in Council and shall be charged proportionately against all payments and deducted therefrom by the trustee before payment is made.
45The levy is payable to the federal Crown. The obligation to pay the levy appears to fall upon the Trustee. However, there is authority that if a dividend is paid to a claimant without deduction of the levy, the claimant can be ordered to pay the levy: Seeley (Re), 2008 NWTSC 77, at para. 30. It might therefore be argued that Senior’s entitlement to receive his share of the dividend, which would presumably be paid to him on the reserve, should not be impressed with an obligation to surrender 5% (the current rate), by way of the levy under s. 147, of the amount otherwise due to him. Put differently, s. 147 could be regarded as purporting to subject the personal property of an Indian situated on a reserve to a levy, something which s. 89 of the Indian Act prohibits.
46An alternative way of looking at the levy is, as Farley J. observed in Alger Press Ltd. (Re) (1994), 1994 7257 (ON CTGD), 18 O.R. (3d) 214, 25 C.B.R. (3d) 154 (Ont. Gen. Div.), at para. 10, that s. 147 “is obviously a form of taxation”.
47No argument was advanced on whether, and if so, how, the tax exemption under s. 87 of the Indian Act might apply to payment of the levy.
48Because, given the finding I have made on the priority of Mr. Bogue’s lien against the funds which will flow from the Trustee to the Receiver pursuant to the appointment order of Kershman J., it is not necessary for me to decide whether s. 89 operates to relieve Senior from payment of the levy and, therefore (and particularly without the benefit of submissions on behalf of the Superintendent) I decline to do so. In that regard, I also note that the Receiver has not associated himself with Senior’s request to be exempted from the levy.
49It follows that the Trustee should be authorised and directed to remit the applicable amount to the Superintendent at this time.
Validity of Solicitor’s Lien
50Senior raises two arguments which, he says, render Mr. Bogue’s lien invalid.
Notice
51In his notice of motion, Senior asserts that Mr. Bogue’s solicitor’s lien was never served upon him “as confirmed by the proof of service materials submitted by Glenn Bogue to the Superior Court in 2019”.
52In his unreported reasons for decision dated 11 October 2019, Kershman J. had found that:
In order to secure his solicitor’s fees from the arbitration, Mr. Bogue served a Notice of Solicitor’s Lien on Senior, Andy and his wife Jasmine as well as Senior’s ex-wife, Yolanda Maracle, known as “Yolanda” on March 28th, 2017.
53Notwithstanding that finding, which was not raised as a ground of Senior’s subsequent appeal from Kershman J.’s receivership order, a factum filed on Senior’s behalf in response to Mr. Bogue’s motion for a declaration that the receivership proceeds are subject to a common law solicitor’s lien in favour of Bogue, heard in February 2024, stated (at para. 38):
There is no evidence that Bogue’s “Notice of Lien” was served on Miracle. Indeed, Bogue’s evidence of service attached to the Notice of Lien is positive evidence that Miracle was not served.
54In granting the declaration sought by Mr. Bogue, I relied on Kershman J.’s finding that notice of the lien had been served: Bogue v. Miracle, 2024 ONSC 1964, at para. 100. On appeal from my decision, Nordheimer J.A., after noting that Senior had raised “a number of issues with respect to the motion judge’s decision to grant a solicitor’s lien” and that all of those issues had been addressed in the motion judge’s reasons, concluded that “there is nothing on the facts of this case that would provide a basis for this court to interfere with the motion judge’s exercise of his discretion to grant the solicitor’s lien”: Bogue v. Miracle, 2025 ONCA 188, at paras. 21-24.
55It is an abuse of process for Senior to attempt to revisit the same issue yet again. As Arbour J. stated in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 35:
Judges have an inherent and residual discretion to prevent an abuse of the court's process. This concept of abuse of process was described at common law as proceedings "unfair to the point that they are contrary to the interest of justice" (R. v. Power, 1994 126 (SCC), [1994] 1 S.C.R. 601 (S.C.C.), at p. 616), and as "oppressive treatment" (R. v. Conway, 1989 66 (SCC), [1989] 1 S.C.R. 1659 (S.C.C.), at p. 1667). McLachlin J. (as she then was) expressed it this way in R. v. Scott, 1990 27 (SCC), [1990] 3 S.C.R. 979 (S.C.C.), at p. 1007:
. . . abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community's sense of fair play and decency. The concepts of oppressiveness and vexatiousness underline the interest of the accused in a fair trial. But the doctrine evokes as well the public interest in a fair and just trial process and the proper administration of justice.
56Furthermore, the doctrine of res judicata applies to prevent parties from re-litigating issues, including findings of fact, that have already been decided.
57It is over six years since this court found that the notice of lien had been served. That finding cannot, and will not, be revisited now.
58I would add that even if it was appropriate to consider now whether there was valid service of the notice of lien, it is abundantly clear from the record that, regardless of the details of how service was formally effected, both Senior and his lawyer were aware of Mr. Bogue’s assertion of a solicitor’s lien within the prescribed time for service. It is hard to imagine any circumstances under which it would be found that even if there were any shortcomings with service of the notice, that they would not be remedied by the Court’s exercise of its discretion to dispense with strict compliance with the formalities of notice.
Paramountcy
59The other ground raised by Senior in relation to the validity of the solicitor’s lien is that the doctrine of paramountcy prevents the solicitor’s lien, codified under provincial statute, from conflicting with and altering the priorities set out in the federal Bankruptcy and Insolvency Act.
60The doctrine of paramountcy applies where there is a federal law and a provincial law which are (1) each valid, and (2) inconsistent: Peter W. Hogg and Wade Wright, Constitutional Law of Canada, 5th Ed. (Toronto: Thomson Reuters, 2019 Looseleaf) at § 16:1.
61Mr. Bogue challenges the characterisation of solicitor’s lien as being codified under provincial statute.
62As explained at para. 75 of the April 2024 rulings:
Solicitors have special rights both under statute and at common law to facilitate payment of their client accounts. These include both charging orders, under section 34 of the Solicitors Act, R.S.O. 1990, c. S.15, s. 34, and solicitors' liens on funds, derived from the court's inherent jurisdiction …
63In Merchant Law Group v. McLeod & Co., 2005 ABQB 875, Rawlins J. referred to F.W. Atkinson, The Law and Practice Relating to Solicitor’s Liens and Charging Orders (London: Sweet and Maxwell, 1905), which states, at p. 3:
The law of solicitors’ lien is derived from the common law and the practice of the Courts of equity, and not from any statutes.
64Paramountcy should only be applied to give priority to federal insolvency legislation where there is a true operational conflict, and where dual compliance with the laws is not possible: see, generally, Dr. Janis Sarra, in her article Of Paramount Importance: Interpreting the Landscape of Insolvency and Environmental Law, 2012 Annual Review of Insolvency Law (Thomson Reuters).
65However, I consider it unnecessary to conduct further analysis of whether a common law or equitable lien should be considered as provincial legislation and, if so, whether it conflicts with the substance or purpose of the Bankruptcy and Insolvency Act. As I will explain when discussing the application of Mr. Bogue’s lien, Mr. Bogue is not a creditor of Junior. He has no rights vis-à-vis the funds held by the Trustee. His lien only comes into play because the appointment of the Receiver entitles the Receiver to collect Senior’s share of the bankruptcy dividend from the Trustee. In short, there is no operational conflict between the Bankruptcy and Insolvency Act and the operation of the lien. The doctrine of paramountcy has no application in such circumstances.
66I conclude and confirm that Mr. Bogue’s solicitor’s lien is valid and effective as against the property of his own client, namely Senior, subject to such protection that Senior is entitled to under s. 89 of the Indian Act. As the Court of Appeal confirmed, however (at 2022 ONCA 672, para. 47), s. 89 does not protect Senior’s off-reserve assets from seizure. As I have concluded, Senior’s off-reserve assets therefore include his share of the bankruptcy dividend currently held by the Trustee in Toronto.
Effect of Solicitor’s Lien
67Three issues arise from the motions brought by Mr. Bogue, the Receiver and Senior respectively on the effect of the lien:
a. Does Mr. Bogue’s solicitor’s lien render him a secured creditor of the bankruptcy proceeds held by the Trustee;
b. Does the lien entitle Mr. Bogue to priority status in respect of the funds available for distribution by the Receiver; and
c. If the answer to (b) is “yes”, does Mr. Bogue’s priority take precedence over the fees and disbursements of the Receiver and its lawyers.
(a) The Solicitor’s Lien and the Bankruptcy Proceeds
68The declaration that Mr. Bogue had a solicitor’s lien was granted “subject to such other orders as may be made concerning the application of the Indian Act to the funds held by the Trustee and/or the Receiver, Swartz Levitsky Feldman Inc.” The 2025 Court of Appeal decision (Bogue v. Miracle, 2025 ONCA 188) expressly left open the question of whether Bogue’s solicitor’s lien has a priority over the proceeds of Junior’s bankruptcy. Nordheimer J.A. noted, at para. 25:
The appellant raises an issue whether the solicitor’s lien can apply to certain funds in his son’s bankruptcy proceeding. That issue is not properly before this court. It is an issue that must first be dealt with in the bankruptcy proceeding.
69Mr. Bogue relies on Thomas Gold Pettingill LLP v. Ani-Wall Concrete Forming Inc., 2012 ONSC 2182, 349 D.L.R. (4th) 431 in support of his argument that his lien takes priority. That case dealt with the effect of, inter alia, what Perell J. described as a “charging lien” over certain settlement funds held in a law firm’s trust account. At para. 101 of his reasons, Perell J. wrote:
For present purposes, the three points to note from Justice Henry’s decision in Re Tots and Teens Sault Ste. Marie about a charging lien made under the court’s inherent jurisdiction are: first, the charging lien creates the proprietary interest of a secured creditor; second, subject to being declared, the charging lien is an inchoate interest that pre-dates the court’s declaration; and third, the charging lien is intrinsically declaratory in nature.
70However, as Perell J. also observed, while common law courts and courts of equity have an inherent jurisdiction to charge assets recovered or preserved through the instrumentality of a lawyer for a client, such charging liens can be claimed only on the fruits of the proceeding in which recovery was made: Thomas Gold Pettingill LLP, at paras. 89 and 90.
71The fruits of the claim which Mr. Bogue successfully prosecuted on Senior’s behalf have yet to be realised. Although the lien would be effective against any off-reserve assets of Senior, at present there appear to be none. Instead, Mr. Bogue seeks to assert his lien against the property of his former client’s litigation adversary – Junior – which is presently in the hands of the Trustee.
72Because the lien can only attach to property recovered by Mr. Bogue’s client (or the Receiver appointed over “all of the assets, undertakings and properties” of his client), until the Receiver obtains payment of Senior’s share from the Trustee, there is nothing for the lien to attach to.
73Accordingly, Mr. Bogue’s claim that his lien can be applied against the Trustee must fail.
(b) The Priority Status of the Lien
74As Perell J. noted in Thomas Gold Pettingill LLP, a solicitor’s lien creates the proprietary interest of a secured creditor. The Receiver does not contest that.
75Where the Receiver and Mr. Bogue part company is whether Mr. Bogue’s lien has priority over the Receiver and its lawyers’ entitlement to payment for their professional fees. The Receiver’s position is that Mr. Bogue’s lien gives him first priority status against the dividend subject only to what it describes as the super-priority charges created by the Appointment Order including in respect of the Receiver and its lawyers’ fees.
76Paragraph 18 of the Appointment Order provides:
… the Receiver and counsel to the Receiver shall be entitled to and are hereby granted a charge (the “Receiver’s Charge”) on the Property, as security for such fees and disbursements, both before and after the making of this Order in respect of these proceedings, and that the Receiver’s Charge shall form a first charge on the Property in priority to all security interests, trusts, liens, charges and encumbrances, statutory or otherwise, in favour of any Person, but subject to sections 14.06(7), 81.4(4), and 81.6(2) of the BIA.
77It bears remembering that it was Mr. Bogue who sought the Appointment Order. He has been (or will be) the principal beneficiary of the work of the Receiver and its lawyers. Given the Court’s finding that the lien does not attach directly to the funds held by the Trustee, Mr. Bogue’s priority vis-à-vis the monies collected by the Receiver is subject to paragraph 18 of the Appointment Order which clearly provides that the Receiver’s Charge ranks in priority “to all security interests, trusts, liens, charges and encumbrances, statutory or otherwise, in favour of any Person, but subject to sections 14.06(7), 81.4(4), and 81.6(2) of the BIA”.
78Furthermore, subject to approval of the reasonableness of the Receiver’s Charge, it would be manifestly unjust for the Receiver and its lawyers to be deprived of payment for the professional services they have rendered over a number of years.
Other Relief Sought by the Receiver
79I will address the other relief sought by the Receiver in a different order than that set out in the Receiver’s notice of motion.
Transfer by the Trustee to the Receiver of Senior’s Share of the Bankruptcy Dividend
80Having (a) decided that the funds held by the Trustee are not situated on-reserve, and, hence, that Senior stands in no different position vis-à-vis those funds than any other creditor; (b) decided that Mr. Bogue’s lien does not attach to the funds held by the Trustee; and (c) regard to the Appointment Order, which authorises the Receiver to take possession of and exercise control over all of Senior’s assets, undertakings and properties, including personal property, I am aware of no other obstacle to the Trustee making the requested transfer.
81The Trustee remains at liberty to seek any further directions that may be required to complete the Trustee’s discharge of its responsibilities.
Approval of the Receiver’s Fees, Activities and First Report
82Neither the Receiver nor its lawyers have been paid for their professional services since the inception of the receivership in October 2019.
83The Receiver’s accounts for the period from 1 October 2019 to 9 September 2025 total $72,659 inclusive of HST and disbursements. The court has been provided with copies of the Receiver’s interim accounts, together with a summary of the accounts, the total billable hours charged per account, and the average hourly rate charged per account.
84The Receiver’s lawyers from 1 October 2109 until 23 July 2021 were Page Martin LLP. Their accounts for that period totalled $53,957.55 inclusive of HST and disbursements. From 1 September 2023 to 10 September 2025 (and continuing), Paliare Roland Rosenberg Rothstein LLP have acted for the Receiver. Their accounts for the period up to 10 September 2025 total $130,176.50 inclusive of HST and disbursements.
85The Receiver believes that the work performed by its lawyers and the charges incurred are appropriate and reasonable.
86Mr. Bogue asserts that the fees of the Receiver and its lawyers are excessive in the circumstances and should be substantially reduced.
87The information provided by the Receiver conforms with the directive given by the Court of Appeal in Confectionately Yours Inc. (Re) (2002), 2002 45059 (ON CA), 219 D.L.R. (4th) 72 (Ont. C.A)., which stated that accounts must disclose in detail the name of each person who rendered services, the dates on which the services were rendered, the time expended each day, the rate charged and the total charges for each of the categories of services rendered, should be in a form that can be easily understood by those affected by the receivership (or by the judicial officer), and that the receiver and its lawyers’ accounts should be verified by an affidavit.
88In Confectionately Yours, the Court of Appeal, relying on Belyea v. Federal Business Development Bank, 1983 4086 (NB CA), [1983] 44 N.B.R. (2d) 248 (N.B.C.A.), also set out factors which courts should consider when determining the reasonableness of the fees and disbursements charged by receivers and their lawyers.
89Whilst the onus is on the Receiver to justify the reasonableness of the accounts, typically it should not be necessary for judges to conduct the equivalent of a detailed solicitor-client assessment of the accounts and supporting information provided by a receiver or its lawyers.
90As A. J. Goodman J. explained in Bank of Nova Scotia v. Diemer, 2014 ONSC 365 (affd. 2014 ONCA 851), at para. 19:
It is not necessary for me to have to go through the dockets, hours, the explanations or disbursements, line by line, in order to determine what the appropriate fees are. Nor is the court to second-guess the amount of time claimed unless it is clearly excessive or overreaching. The appellate courts have directed that judges should consider all the relevant factors, and should award costs (or fees) in a more holistic manner. However, when appropriate and necessary, a court ought to analyze the Bill of Costs or dockets in order to satisfy itself as to the reasonableness of the fees submitted for consideration.
91In the present case, the First Report of the Receiver details the activities associated with the receivership, including:
(a) investigating the available assets that may be subject to the receivership;
(b) taking steps to monetize those assets as appropriate;
(c) participating in a number of contested motions and appeals concerning the administration of the receivership;
(d) corresponding with known creditors of Senior and administering a claims process; and
(e) preparing the First Report and these submissions in connection with this motion.
92Mr. Bogue’s bald assertions that the work done by the Receiver has been of limited value, and that the fees charged are exorbitant, are not a sufficient basis for me to launch the sort of review or inquiry that would be necessary before I were to reject all or part of the fees claimed by the Receiver and its lawyers.
93Indeed, given the number of attendances for motions, case conferences, application hearings and appeals that have occurred in these proceedings, it would not have been surprising if the fees incurred were far greater. Although much of that litigation has been initiated by Senior, rather than Mr. Bogue, and the Receiver has engaged in those matters only as necessary, I find that the participation of the Receiver has nevertheless been appropriate.
94I am therefore satisfied that the fees and disbursements of the Receiver and its lawyers are reasonable in the circumstances and that they should be paid as part of the interim distribution proposed in the First Report.
95The Receiver also seeks a reserve of $100,000 to cover future professional fees. The Receiver explains this request as “appropriate having regard for the complexity of the receivership, the large number of illiquid assets remaining to be evaluated and administered, and complexity of some of those assets including the various causes of action described in the First Report”.
96Other than the CIBC Action, discussed below, the First Report identifies a number of extant legal proceedings being prosecuted by Senior which the Receiver has yet to evaluate for their recovery potential. The Receiver has been awaiting the outcome of these motions before evaluating appropriate next steps.
97Without prejudice to the possible discharge of the Receiver, also discussed below, the Receiver’s request for a reserve strikes me as reasonable and prudent in the circumstances.
98It follows from the foregoing that the distribution sought by the Receiver should be made as follows:
a. First, the fees and disbursements of the Receiver and its lawyers (past and present);
b. Second, the establishment of a reserve of $100,000 for future professional fees of the Receiver and its lawyers; and
c. Third, payment of the balance of the dividend to Mr. Bogue in partial satisfaction of the debt secured by his solicitor’s lien.
Assignment of the CIBC Action
99The CIBC Action is presently stayed, but its prosecution is otherwise under the control of the Receiver. The Receiver takes no position in relation to Mr. Bogue’s request for an order assigning this action to him, provided that any such order contains terms which will ensure that any recoveries by Mr. Bogue in excess of the debt owing to him will belong to the receivership estate.
100CIBC does not oppose the assignment of the claim by the Receiver to Mr. Bogue.
101Senior maintains his position that his claim against CIBC should not be subject to a receivership order and, thus, is not an available asset in the receivership. Senior wishes to continue the proceeding against CIBC personally.
102Mr. Bogue argues that assignment of the CIBC Action to him is his only means of obtaining satisfaction of the judgment against Senior. He agrees that if he collects more than he is owed by Senior, he will remit the surplus to the Receiver for the benefit of Senior’s other creditors. Alternatively, if the Receiver is discharged, Bogue would pay the surplus first to Senior’s other creditors with any balance paid to Senior.
103Provided that the risk of the continued prosecution of the CIBC Action is assumed by Mr. Bogue, and that if more is recovered than is owed to Mr. Bogue that Senior’s other creditors and, if applicable, Senior, remain entitled to receive the surplus, the stay of proceedings of the CIBC Action should be lifted and the CIBC Action should be assigned to Mr. Bogue. Senior should not be prejudiced under such circumstances and condition.
Discharge of the Receiver
104I do not consider the record before me to be sufficient to decide whether now is the appropriate time to discharge the Receiver. Nor was the point fully argued. It may well be that after the interim distribution has been made, there will be a clearer picture of the efficacy of maintaining the receivership.
105Accordingly, Mr. Bogue’s motion for discharge of the Receiver will be adjourned sine die.
Disposition
106For the foregoing reasons, orders will go:
a. Amending the court’s judgment of 4 April 2024 to add pre-judgment interest that was inadvertently omitted from the original judgment;
b. Authorising and directing the Trustee to:
i. remit to the Superintendent of Bankruptcy the levy required by s. 147 of the Bankruptcy and Insolvency Act;
ii. distribute Senior’s share of the bankruptcy dividend to the Receiver; and
iii. seek such further directions from the Court that may be necessary for the Trustee to discharge its remaining responsibilities (if any).
c. Approving the First Report of the Receiver and the actions and activities of the Receiver described therein;
d. Approving the Receiver’s interim statement of receipts and disbursements as of 15 September 2025;
e. Authorising and directing the Receiver to make the following distributions proposed in the First Report:
i. First, the fees and disbursements of the Receiver and its lawyers;
ii. Second, the establishment of a reserve of $100,000 for future professional fees of the Receiver and its lawyers; and
iii. Third, payment of the balance of the dividend to Mr. Bogue in partial satisfaction of the debt secured by his solicitor’s lien.
f. Assigning to Mr. Bogue the right, title, and interest in the prosecution of Court File No. CV-13-0284-00 from Schwartz Levitsky Feldman Inc. in its capacity as court appointed Receiver for Andrew Clifford Miracle; and
g. Adjourning, sine die, Mr. Bogue’s motion for discharge of the Receiver.
107Counsel should confer on the form and content of a formal order that gives effect to the foregoing.
Costs
108If the parties cannot agree on a suitable order as to costs, I will receive written submissions as follows:
a. Within 21 days of the release of these reasons any party seeking costs will deliver a costs summary and a written submission of not more than three pages in length outlining the basis for the party’s claim and the amount of costs sought;
b. Within 14 days of receipt of submissions by a party seeking costs, any party against whom costs have been sought may deliver a responding submission of not more than 3 pages in length and, if appropriate, a costs summary of that party’s costs (whether claimed or not).
Mew J.
Date: 23 January 2026
CITATION: Maracle (Re), 2026 ONSC 449
COURT FILE NO.: BK-19-02561274-0033 (Ottawa)
DATE: 20260126
ONTARIO
SUPERIOR COURT OF JUSTICE
IN BANKRUPTCY AND INSOLVENCY
IN THE MATTER OF THE BANKRUPTCY OF ANDREW CLIFFORD MARACLE III OF THE COUNTY OF HASTINGS IN THE PROVINCE OF ONTARIO
REASONS FOR DECISION
Mew J.
Released: 23 January 2026
Footnotes
- In this decision, I take the same approach as Tulloch J.A. in Bogue v. Miracle, 2022 ONCA 672, at para. 2, and LaForme J.A. in Tyendinaga Mohawk Council v. Brant, 2014 ONCA 565, 121 O.R. (3d) 561, at para. 2. When discussing the application and effect of the Indian Act, I have therefore used the term “Indian” when the term “Indigenous” would be more respectful.
- Glenn Bogue v. Andrew Clifford Miracle c.o.b. as Smokin' Joes, 2023 44057 (SCC).
- Leave to appeal to the Supreme Court of Canada was dismissed: Andrew Clifford Miracle v. Glenn Bogue, 2025 101824 (SCC).
- There are small differences in the figures relating to Senior’s share provided by the Receiver and Senior respectively. For the purposes of these reasons, I have assumed that the Receiver has the correct information.
- There are small differences in the figures relating to Senior’s share provided by the Receiver and Senior respectively. For the purposes of these reasons, I have assumed that the Receiver has the correct information.