DATE: 20020215 DOCKET:C36010
COURT OF APPEAL FOR ONTARIO
RE:
KPMG INC., as Trustee in Bankruptcy for the Estate of COAST OPERATIONS OF CANADA LTD. (Plaintiff (Appellant)) – and – OTTAWA CREDIT EXCHANGE, LIMITED (Defendant (Respondent))
BEFORE:
FINLAYSON, CARTHY AND CRONK JJ.A.
COUNSEL:
Andrew J.F. Lenz
For the appellant
James L. MacGillivray
For the respondent
HEARD:
February 11, 2002
RELEASED ORALLY:
February 11, 2002
On appeal from the judgment of Justice D. Power dated February 19, 2001.
E N D O R S E M E N T
[1] The trial judge found as a fact that there was no intention to form a debt. In doing so he accepted the evidence of the respondent’s witnesses. The appellant says that this does not deal with the debt to be inferred from the transfer of the money, and the legal effect of such transactions. Such a legal result would still require a factual framework and, here, the facts are all found in favour of the defendant, including an explanation for the questionable book entries.
[2] If we cannot disturb the ultimate finding and if there is no debt then the other issues raised are redundant to the appeal.
[3] As to the appeal on the scale of costs, the trial judge observed in the body of his reasons that the trustee was justified in being suspicious of the altered accounting records. The trustee might have been criticized for failing to pursue such a claim and we do not see this case as justifying solicitor and client costs.
[4] Leave to appeal costs is granted and the appeal is allowed to the extent of inserting a provision for party and party costs to be assessed in place of the present provision for solicitor and client costs. Otherwise the appeal is dismissed.
[5] The respondent is entitled to costs of the appeal on the partial indemnity scale and we have the submission of their bill of costs. We have reviewed the respondent’s bill of costs and award costs in the amount of $12,300 inclusive of today’s counsel fee, plus disbursements as set out in the bill, plus GST to be calculated.
"G.D. Finlayson J.A."
"J.J. Carthy J.A."
"E.A. Cronk J.A."