Court of Appeal for Ontario

Date: 2018-01-15

Docket: M48179 (C64174)

Panel: Feldman, Pepall and Huscroft JJ.A.

Between

Maria Struik Plaintiff (Moving Party)

and

Dixie Lee Food Systems Ltd., Dixie Lee of Canada Inc., Dixie Lee Capital Corporation, Joseph Murano, Noele Murano and Dixie Lee Ontario Ltd. Defendants (Respondents)

Counsel

Robert J. Reynolds, for the moving party

Jillian Burford-Grinnell, for the respondent, Dixie Lee Ontario Ltd.

Heard: January 8, 2018

Reasons for Decision

[1] On January 23, 2017, Rasaiah J. granted partial summary judgment to Maria Struik ("Struik"). She declared Dixie Lee Ontario Ltd. ("DLOL") to be a guarantor of certain obligations and ordered it to pay Struik monthly amounts together with interest and costs.

[2] DLOL served a notice of appeal from the judgment on March 1, 2017, after the expiry of the requisite time limited for appeal. It was not accompanied by any motion seeking an order to extend the time. DLOL was described as the only appellant. Counsel for Struik wrote and advised opposing counsel that the notice was out of time and of no effect.

[3] On March 3, 2017, Rasaiah J. granted a further order appointing Struik as the Receiver of all of the assets, undertakings and properties (the "Property") of DLOL with the power to take possession, control and manage the business of DLOL and, on notice to DLOL and Joseph Murano (the directing mind of DLOL), market and sell the Property. All rights and remedies against DLOL, the Receiver, or affecting the Property were stayed. This order was never appealed.

[4] In spite of the terms of the receivership order, DLOL sought an extension of time to serve and file the notice of appeal. A chambers judge of this court granted the extension by order dated August 1, 2017. It is unclear whether the receivership order was brought to the attention of the chambers judge.

[5] Struik then brought a motion before this panel to review the order of the chambers judge. Among other things, she submits that the chambers judge reached an unreasonable result in failing to dismiss the motion to extend because the appeal is unmeritorious.

[6] We agree with this submission. The thrust of the notice of appeal is that Struik breached and repudiated the contract relating to the guarantee thereby releasing DLOL from the guarantee. In lengthy and detailed reasons, Rasaiah J. expressly addressed this issue noting that the language of the guarantee precluded such defences and claims. In oral argument, while counsel for the respondent disagreed with the conclusions of the motion judge, she was unable to identify any specific error made by the motion judge in either her findings or analysis.

[7] Moreover, the justice of the case is not served by permitting the appeal to proceed. Although not raised by either party, given the terms of the receivership order, the party purporting to resist the motion and to proceed with the appeal of the January 23, 2017 judgment, namely DLOL, has no status independent of the receiver to do so.

[8] In these circumstances, the motion is granted and the order to extend the time for service of the notice of appeal is set aside. There shall be no order for costs.

"K. Feldman J.A."

"S.E. Pepall J.A."

"Grant Huscroft J.A."