COURT FILE NO.: 572/07
DATE: 20091119
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JANET WILSON, LEDERMAN AND SWINTON JJ.
B E T W E E N:
CARFRAE ESTATES LIMITED
Appellant
- and -
THE DIRECTOR, BUSINESS CORPORATIONS ACT
Respondent
F. Scott Turton, for the Appellant
Judie Im, for the Respondent
HEARD at Toronto: November 19, 2009
SWINTON J.: (Orally)
[1] The appellant Carfrae Estates Limited appeals from the November 7, 2007 order of Allen Doppelt, delegate of the Director, Business Corporations Act, R.S.O. 1990, c.B.16 (“the Act”) cancelling the appellant’s Certificate of Revival as a corporation effective November 7, 2007.
[2] Acting pursuant to s.240(1) of the Act, the Director’s Delegate concluded that the Director had no discretion to endorse the Articles of Revival because the consent of the Minister of Revenue was not attached to the Articles of Revival as required by s.6(1)(a) of O.Reg. 289/00.
[3] He went on to consider “sufficient cause”. He concluded that the invalidity of the Certificate of Revival is sufficient cause within s.240 of the Act. He exercised his discretion to cancel the Certificate of Revival because
“It is not in the public interest for a corporation and its shareholders to obtain benefits from an invalid certificate, particularly in circumstances where the corporation has not cured the deficiencies for which it was dissolved.” (at page 7 of his reasons)
[4] The standard of review is reasonableness, given that the decision is discretionary.
[5] We conclude that the decision is reasonable. The Director is correct that s.6(1)(a) of the regulation imposes a mandatory requirement to include the consent of the Minister of Finance when filing the application for Articles of Revival. The fact that the notices and the reasons refer to the Minister of Revenue, and not the Minister of Finance, does not affect the decision. It is clear that the appellant has not obtained any consent, and there is no evidence of prejudice from the technical error in naming the Minister.
[6] The appellant was accredited full procedural fairness. Disclosure about the circumstances of the initial decision by the Director is not relevant, given the lack of jurisdiction to grant revival.
[7] Therefore, the appeal is dismissed.
JANET WILSON J.
Costs
[8] Costs fixed payable in the amount of $3,000.00 inclusive, $2,500 for preparation plus $500.00 as requested for today’s appearance.
SWINTON J.
JANET WILSON J.
LEDERMAN J.
Date of Reasons for Judgment: November 19, 2009
Date of Release: December 4, 2009
COURT FILE NO.: 572/07
DATE: 20091119
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JANET WILSON, LEDERMAN AND SWINTON JJ.
B E T W E E N:
CARFRAE ESTATES LIMITED
Appellant
- and -
THE DIRECTOR, BUSINESS CORPORATIONS ACT
Respondent
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: November 19, 2009
Date of Release: December 4, 2009