COURT OF APPEAL FOR ONTARIO
RE:
MERIDIAN CREDIT UNION LIMITED (Plaintiff) – and – 984 BAY STREET INC., and DEVENDRANAUTH MISIR also known as DEV MISIR (Defendants)
BEFORE:
ROSENBERG, MOLDAVER and LANG JJ.A.
COUNSEL:
Sean Cumming
for Integrated Health Investments Corporation
Benjamin Salsberg
for Bay Wellesley Health Services
Paul G. MacDonald and Jason Murphy
for KPMG, the Receiver
Martin Kaplan
Meridian Credit Union Limited
HEARD & ENDORSED:
April 28, 2006
On appeal from the order of Justice John D. Ground of the Superior Court of Justice dated September 6, 2005.
A P P E A L B O O K E N D O R S E M E N T
1The receiver properly concedes that the motion judge’s statement of law is overly broad and even if there was a power to sell free of the leases, the motion judge would still be required to consider the equities. Having regard to the endorsement of August 26, 2005 we cannot be satisfied that the appellants knew that they had to lead evidence about the equities once the legal issue was determined.
2Accordingly, the appeal is allowed and the order is set aside and the matter is remitted back to the Superior Court of Justice with costs fixed at $4,000 inclusive of G.S.T. and disbursements.
3Costs of the motion reserved to the judge hearing the matter.