Rodych v. Rasidescu, 2011 MBCA 89

Citation: Rodych v. Rasidescu, 2011 MBCA 89 Date: 20111115 Dockets: AF11-30-07609; AF11-30-07610 IN THE COURT OF APPEAL OF MANITOBA B E T W E E N : CINDY LORRAINE RODYCH ) R. Rasidescu ) on his own behalf (Petitioner) Respondent ) ) T. P. Beley ) for the Respondent - and - ) ) Chambers motions heard: ) October 20, 2011 RADU RASIDESCU ) ) Decision pronounced: (Respondent) Applicant ) November 15, 2011 SCOTT C.J.M. 1 The applicant applies for an extension of time to file a notice of appeal out of time, as well as for a stay of proceedings in a concurrent appeal.

For the reasons that follow, I dismiss both applications. 2 Divorce proceedings between the parties began over a decade ago. 3 After a lengthy trial, a divorce judgment was granted on December 24, 2001. The applicant participated in the hearing by teleconference from Hudson, Wisconsin, U.S.A., as he did throughout these proceedings. Costs were awarded in favour of the respondent in the amount of $38,000, inclusive of disbursements. The applicant says he paid up to $3,000 towards the costs; the respondent says that only $150 has been received.

The order provided for service upon the applicant by prepaid ordinary mail at 201 – 1900 Aspen Drive, Hudson, Wisconsin, 54016-0941, U.S.A. 4 As a result of information that came to the respondent’s attention, a certificate of judgment was registered on July 27, 2009, against a condominium in Winnipeg owned by a corporation named X_Sun Holdings Inc. Believing the applicant to be the beneficial owner, she commenced proceedings in the Court of Queen’s Bench in November 2010 to secure her judgment against the property.

To this end, on January 31, 2011, an order for substitutional service was obtained by the respondent from a master of the Court of Queen’s Bench. The order provided for service upon the applicant by ordinary mail to a total of five addresses addressed to either X_Sun Holdings Inc. or the applicant. Two of the addresses for the applicant were P.O. Box 941, Hudson, Wisconsin, 54016-0941, U.S.A., and 201 – 1900 Aspen Drive, Hudson, Wisconsin, 54016-0941, U.S.A. The latter is the address for service noted in the divorce judgment.

Interestingly, there is a letter on file addressed to counsel for the respondent, purportedly signed by the applicant, which notes, “[a]s a courtesy,” that his address is “P.O.

Box 941, Hudson, Wisconsin, 54016, USA.” While the applicant maintains that the signature on the letter is not his, he confirmed during argument that the address is correct. 5 Following “service” of the application for attachment and sale of the condominium, together with the supporting affidavit, the respondent appeared before the motions court judge (the same judge who had granted the divorce judgment) on May 27, 2011, and obtained an order, signed on June 1, which, in effect, pierced the corporate veil, declaring the applicant to be the beneficial owner of the condominium.

The June 1 order gave the applicant until June 30, 2011, to move to set aside the declaration, failing which the property was to be sold on terms and conditions to be determined. The order also mandated full financial disclosure by the applicant, including the provision of tax returns. Service was to be made upon the applicant at the same addresses as provided in the order for substitutional service. 6 No application having been made to the court, an order for sale was granted (the June 30 order).

I am advised that while the respondent has taken possession of the property, no further steps towards sale have been effected pending resolution of these proceedings. Again, service was mandated in the June 30 order in accordance with the order for substitutional service.

7 Then on July 26, 2011, the applicant filed a notice of appeal with respect to the June 30 order, as well as an application foran extension of time to file a notice of appeal out of time with respect to the June 1 order (under the rules, the notice of appeal shouldhave been filed by the end of June).

Finally, a motion was filed at the same time to stay the sale proceedings, with costs on asolicitor/client basis, along with a “security deposit.” Based on the material filed by the applicant on July 26 and his subsequentaffidavits, it is clear that he wishes not only to contest and set aside the orders of June 30 and June 1, but, as well, the order forsubstitutional service of January 31.

While the applicant’s material contains numerous gratuitous allegations of “Fraud, Conspiracy andMoney Laundering,” the critical issue is the applicant’s assertion, in his affidavit material, that the first time that he became aware of anyof the above proceedings was in a conversation that he had with his daughter sometime in the month of July 2011 and that he was not“served” with either the applications or the orders granted on January 31, June 1 or June 30. 8 After several false starts, the application for an extension of time to file a notice of appeal out of time with respect to theJune 1, 2011 order and the application for a stay (with respect to the appeal from the June 30 order) came on for hearing before me onThursday, October 20, 2011. 9 In his motion briefs and in his oral submissions to me (by teleconference), the applicant maintained that he had not beenserved with any of the documentation, either the applications or the orders that followed, at any time, nor did he have any notice of whatwas transpiring until the conversation he had with his daughter in July.

This is a puzzle because it is clear from the documents filed bythe applicant in this court that his correct mailing address is P.O. Box 941, Hudson, Wisconsin, 54016, U.S.A.

Furthermore, I wasadvised by respondent’s counsel in argument, and confirmed by the respondent’s affidavits, that while some of the various lettersaddressed to the applicant or X_Sun Holdings Inc. were eventually returned by the post office, this was not the case with respect toletters addressed to the applicant’s post office box in Hudson, Wisconsin. 10 When I asked the applicant directly whether he had any information or could explain how it could be that none of theproperly addressed correspondence to him was not received, he was unable to assist me.

To put it mildly, I have grave concerns aboutthe accuracy of the applicant’s position that he was not aware since 2009 of any of the various proceedings. My sense of unease wasonly heightened as a result of an exchange with the respondent’s counsel near the end of submission. Ms Rodych’s counsel, no doubthaving in mind the difficulty of effecting “personal service” when the only available address is a post office box, urged the applicant toadvise the court of a reliable address where personal service could be effected. The applicant declined to do so.

As the respondent’scounsel pointed out, it is entirely disingenuous to complain about a lack of service and at the same time refuse to provide information toenable such service to be properly made. It is hard to avoid the conclusion that personal service is being deliberately stymied. 11 There is no argument about the applicable law. The applicant refers to Agritrans Logistics Ltd. (Bankrupt), Re, 2005MBCA 68 at paras. 19-20, 195 Man.R. (2d) 47, and Hunter v. Hunter, 2000 MBCA 134 at para. 6, 150 Man.R. (2d) 291, which reiteratethat an extension of an appeal period should only be granted if: (

a) there is an arguable ground of appeal; (

b) there is a continuous intention to appeal; and (

c) there is a reasonable explanation for the delay in filing. Finally, the court will consider whether, in all the circumstances, it is right and just that time for commencing the appeal be extended. See Bohemier et al. v. CIBC Mortgages Inc., 2001 MBCA 161, 160 Man.R. (2d) 39. 12 While I am doubtful whether the applicant has satisfied any of the traditional factors, I am content to rest my decision, inthe exercise of my judicial discretion, on the ground that it is not right and just in all of the circumstances to grant an extension of time tofile the notice of appeal out of time.

I say no more about this, being mindful of the fact that with respect to the appeal of the June 30order, where an extension of time is not required, the applicant is entitled to proceed should he still be of a mind to do so. 13 As for the stay of proceedings, here too there is no dispute about the applicable principles and authority. See DesautelsCreative Printing Papers Inc. v. Printcrafters Inc. (1999), (MB CA), 138 Man.R. (2d) 309 at para. 13 (C.A.), as anexample.

It follows from what I have just decided that I am not persuaded that the applicant has an arguable case that the June 30judgment appealed from is wrong in law. I would add that I do not accept that the applicant will suffer irreparable harm if the stay is notgranted.

This is because an undertaking has been given that the sale of the condominium, as a practical matter, is being held in abeyancepending the outcome of these proceedings; and further, should the sale proceed, the proceeds will be paid into court, subject to furtherdirection from the court. 14 In the result, the applications for an extension of time to file a notice of appeal out of time and for a stay of proceedings areboth dismissed, with costs to the respondent. Service of this decision is to be made upon the applicant at the address provided by him inhis material filed in this court, namely, P.O.

Box 941, Hudson, Wisconsin, 54016, U.S.A. ______________________________