Court of Appeal for Ontario

Cineplex Odeon Corp. (Re)

Date: 2001-03-27

Docket: CA M27138

Counsel:

David M. McNevin, for Applicant, Mady Development Corporation

MacPherson J.A.:

[1] The applicant, Mady Development Corporation ("MDC") seeks leave to appeal from the decision of Farley J. dated March 6, 2001 in which he determined that certain fixtures (seats and screens) located on MDC's premises (a movie Theatre in Windsor) were trade fixtures rather than permanent fixtures. As a result, Farley J. ordered that Cineplex Odeon Corporation ("Cineplex") could remove the trade fixtures from the premises.

[2] The application for leave to appeal is made pursuant to ss.13 and 14 of the Companies' Creditors Arrangement Act ("CCAA"). The parties are agreed that four factors should be considered on such an application:

(1) whether the point on appeal is of significance to the practice;

(2) whether the point raised is of significance to the proceeding itself;

(3) whether the appeal is prima facie meritorious or, on the other hand, whether it is frivolous; and

(4) whether the appeal will unduly hinder the progress of the action.

See: Re Blue Range Resource Corp. (1999), 1999 ABCA 255, 12 C.B.R. (4th) 186 (Alta. C.A.) at 190.

[3] I do not think that the issue proposed for the appeal is of significance to the practice generally. Generally speaking, the issue of tenants' trade fixtures does not arise in, or is a very small component of, CCAA proceedings.

[4] I do not think that the issue proposed for the appeal is of significance to this particular CCAA proceeding. The issue relates to theatre seats and movie screens in one theatre in the context of a nationwide re-organization designed to keep a major corporation afloat and to deal fairly with all creditors, which will include MDC.

[5] I do not think that the proposed appeal is prima facie meritorious. Farley J. specifically considered the leading authorities and the relevant provisions of the lease. In my view, his conclusion that the theatre seats and movie screens were trade fixtures is correct.

[6] The respondent concedes the fourth factor. This was a proper concession because this court could hear the appeal on an expedited basis in very short order.

[7] In Re Smoky River Coal Ltd. (1999), 1999 ABCA 179, 237 A.R. 326 (Alta. C.A.), Hunt J.A. conducted an extensive review of the history and purposes of the CCAA. She said, at p 341:

The fact that an appeal lies only with leave of an appellate court (s.13 CCAA) suggests that Parliament, mindful that CCAA cases often require quick decision-making, intended that most decisions be made by the supervising judge. This supports the view that those decisions should be interfered with only in clear cases.

[8] I agree with Hunt J.A.'s observation. In my view, the present matter is not one of those clear cases on which leave to appeal should be granted. In the end, I think that Farley J.'s analysis and conclusion are correct.

Application dismissed.