Court of Appeal for Ontario

Lakehead Newsprint (1990) Ltd. v. 893499 Ontario Ltd.

Date: 2001-09-17

Docket: CA C35715

Eric Fournie, for Appellants

The judgment of the court was delivered by Morden J.A.:

[1] It may be that the decision of the motions judge reflects a correct interpretation of "complainant" in OBCA but we think that there is sufficient scope for proper argument on the issue that it be decided, along with all of the other issues that will be tried, in the context of a full evidentiary record, showing the relationship between the appellants and the corporation throughout the relevant period, after a trial.

[2] The respondent concedes that in light of this court's decision in Perry, Farley & Onyschuk v. Outerbridge Management Ltd. (2001), 2001 5678 (ON CA), 199 D.L.R. (4th) 279 (Ont. C.A.) the Fraudulent Conveyances Act claim is not waived. The issue is raised in the notice of appeal and we think that the appeal on this point should succeed.

[3] The appeal is allowed and the order of the motions judge is varied to give effect to those reasons. The costs order below is varied to provide for no costs and there shall be no costs respecting this appeal.

Appeal allowed in part.