Canadian Imperial Bank of Commerce v. Nadiscorp Logistics Group Inc., 2010 ONCA 397
COURT OF APPEAL FOR ONTARIO
Winkler C.J.O, Goudge and MacPherson JJ.A.
BETWEEN
Canadian Imperial Bank of Commerce
Applicant
and
Nadiscorp Logistics Group Inc.
Respondent
APPLICATION UNDER s. 47(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985 c. B-3, s. 101 of the Court of Justice Act, R.S.O. 1990, c. C-43 and Rules 14.05(2) and (3) (d), (g) and (h) of the Rules of Civil Procedure
Michael McGraw and Chris Burr, for the Appellant, The Hospitals of Ontario Pension Plan
Gerard V. Thompson and Mueed Peerbhoy, for the Respondents/Cross-Respondents, Ridsdale Transport Ltd. et al (The “Carriers”)
Heath P. L. Whiteley, for the Receiver, A. Farber & Partners Inc.
Heard and released orally: May 31 2010
On appeal from the order of The Honourable Justice Geoffrey B. Morawetz of the Superior Court of Justice, dated September 25, 2009.
ENDORSEMENT
1We agree with the result reached by Morawetz J., and with the reasons he gave.
2In our view, the funds collected by the receiver never lost their character as trust funds. Unlike the case of T.C.T. Logistics Inc,. none of these funds were co-mingled with funds collected by the bankrupt company pre-receivership, and those collected by the receiver for services provided by carriers remain identifiable. The appeal therefore fails.
3As to the cross appeal, we agree that the purpose of s. 191.0.1(3) is to impose obligations on persons in Ontario who arrange with an operator to carry the goods of another person. That is what the Ontario Legislature intended and what it is empowered to enact. The cross-appeal therefore is dismissed.
4Costs to the respondent Risdale fixed at 12,000 for the appeal payable by the appellant and fixed at 6,000 for the cross-appeal payable by the receiver, both all inclusive.
“Winkler C.J.O.”
“S. T. Goudge J.A.”
“J. C. MacPherson J.A.”