In the Matter of the Receivership of TCT Logistics Inc. et al. And in the Matter of the Bankruptcy of Tri-Line Expressways Ltd., of the City of Calgary, in the Province of Alberta [Indexed as: TCT Logistics Inc. (Re)]

70 O.R. (3d) 321

[2004] O.J. No. 1344

Docket No. C38738

Court of Appeal for Ontario

Abella and Blair JJ.A., and Benotto S.J. (ad hoc)

April 2, 2004

Personal property security -- Security interests -- Priorities -- Choice of law -- Moveable property -- Lease of truck trailers -- Lease being "true lease" that would not have to be registered in Ontario -- Although lease not security interest in Ontario, under Ontario Personal Property Security Act Alberta law applying to determine priority of lease -- Personal Property Security Act, R.S.O. 1990, c. P.10, s. 7(1).

Tri-Line Expressways Ltd. ("Expressways"), which operated out of Alberta, was one of a group of subsidiaries of TCT Logistics Inc. GMAC Commercial Finance Corporation -- Canada ("GMAC") was the principal financier of the bankrupt group. GMAC had a security interest over all the assets of Expressways. GMAC's security interest was registered under Alberta's Personal Property Security Act, R.S.A. 2000, c. P-7 ("Alberta PPSA").

As part of its operations across the country, Expressways used 75 truck trailers, which the lessor, Xtra Canada ("Xtra") had leased in 1995 under a Master Lease signed with Tri-Line Freight Systems ("Freight Systems"). Xtra registered a financing statement against Freight Systems under the Alberta PPSA. Xtra did not register a financing statement under the Ontario Personal Property Act ("Ontario PPSA") against Freight Systems or against Expressways.

Expressways went bankrupt, and there was a priority dispute between GMAC and Xtra. The parties accepted that if Ontario law applied and provided that the Master Lease was not a financing lease, then Xtra had priority. This followed because, in Ontario, a true lease (that is, not a financing lease) would not have to be registered in order to protect Xtra's interest as owner of the trailers.

On an application, Ground J. held that the Master Lease was between Xtra and Expressways rather than between Xtra and Freight Systems, and that it was a true lease that did not have to be registered under the Ontario PPSA. However, Ground J. held that under the conflicts of law provisions of s. 7 of the Ontario PPSA, the priority dispute should be determined under the Alberta PPSA and, in this regard, Xtra had registered its security interest in Alberta against Freight Systems when it ought to have registered against Expressways if it was to protect its interest in the trailers. Xtra appealed.

Held, the appeal should be dismissed.

There was no basis for interfering with Ground J.'s conclusion that the Master Lease, on its face purported to be between Xtra and Freight Systems, was actually an agreement between Xtra and Expressways.

Ground J. did not err in concluding that pursuant to s. 7 of the Ontario PPSA, Alberta law should be applied to determine the priority dispute. Section 7(1) provides that "the validity, perfection and effect of perfection or non-perfection, of a security interest in . . . goods that are of a type that are normally used in more [page322] than one jurisdiction, if the goods are equipment or inventory leased or held for lease by a debtor to others . . . shall be governed by the law of the jurisdiction where the debtor is located at the time the security interest attaches". Ground J. was correct in holding that s. 7(1) of the Ontario PPSA applied for choice of law purposes even though the provisions of the Act were not applicable to require registration of a financing statement concerning the Master Lease for preservation of priority purposes in Ontario.

This conclusion was supported by several reasons. First, the personal property security legislation in place in all the provinces and territories, with the exception of the Yukon (and Quebec, which does not have PPSA legislation), contains a choice of law stipulation similar to s. 7(1) of the Ontario PPSA and s. 7(2) of the Alberta PPSA. The legislatures in Canada sent a clear signal that, where there are priority disputes over equipment or inventory used in more than one jurisdiction and claimants' interests span more than one jurisdiction, the legislative intention is that those disputes be determined pursuant to the laws of the jurisdiction where the debtor or lessee is located at the time the security interest attaches.

Second, where s. 7(1) is concerned, the first consideration is not to determine whether the transaction under review created a security interest as defined in s. 2 of the Ontario PPSA. The first consideration is to determine whether the dispute gives rise to a question regarding the validity, perfection or the effect of perfection or non-perfection of a security interest in the relevant type of equipment or inventory and, if it does, then to apply the choice of law provisions to determine the proper law governing the resolution of that dispute. In this context"security interest" is not confined to security interest as defined in the Ontario PPSA. Giving s. 7(1) an effect independent of s. 2 and broader in its scope was consistent with the purposes and objects of the Act. Applying it in circumstances such as this case made it clear that -- in conformity with the similar provisions of other provincial statutes -- multi-jurisdictional disputes concerning moveable equipment will be resolved on the basis of a standard premise across the country, that is, based upon the law of the province where the debtor has its principal place of business. Predictability is enhanced. Forum shopping is avoided.

Third, the language of s. 7(1) of the Ontario PPSA -- and of the comparable provision in Alberta -- supported the conclusion. From Xtra's perspective, the Master Lease might not give rise to "a security interest" as defined by the Ontario PPSA; however, each of GMAC and Xtra were making a claim to the trailers, and GMAC's interest was a "security interest" as defined in both the Ontario and Alberta PPSAs. In addition, Xtra claimed a security interest in the trailers under Alberta law. Thus the dispute at bar involved -- in the words of s. 7(1)(a) of the Ontario Act -- "the . . . perfection and effect of perfection or non-perfection . . . of a security interest in equipment or inventory that are normally used in more than one jurisdiction".

Fourth, well-known principles of statutory construction buttressed the foregoing interpretation and approach. The overarching principle of statutory interpretation is that the words of an Act are to be read purposively, in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme and object of the Act and the intention of the legislator. The choice of law provisions in the various provincial and territorial statutes are expressly designed to catch the type of situation arising in this case. To avoid the inconsistencies and the potential forum shopping that might result in such circumstances from applying the law of the place where the dispute is adjudicated (the lex fori), the PPSAs across the country stipulate that such disputes are to be [page323] governed by the law of the jurisdiction where the debtor is located at the time the security interest attaches. This provides for uniformity, certainty and clarity in the application of personal property security law across the country. Accordingly, the appeal should be dismissed.

APPEAL from an order of Ground J., [2002] O.J. No. 3149, 36 C.B.R. (4th) 37 (S.C.J.) in a priority dispute over moveable property.

Cases referred to Adelaide Capital Corp. v. Integrated Transportation Finance Inc. (1994), 1994 7214 (ON SC), 16 O.R. (3d) 414, 111 D.L.R. (4th) 493, 23 C.B.R. (3d) 289 (Gen. Div.); Crop & Soil Service Inc. v. Oxford Leaseway Ltd. (2000), 2000 1838 (ON CA), 48 O.R. (3d) 291, 186 D.L.R. (4th) 85 (C.A.); Gimli Auto Ltd. v. BDO Dunwoody Ltd. (1998), 1998 ABCA 154, 62 Alta. L.R. (3d) 40, 160 D.L.R. (4th) 373, [1999] 1 W.W.R. 459, 4 C.B.R. (4th) 254, 219 A.R. 166 (C.A.) (sub nom. Gimli Auto Ltd. v. Canada Campers Inc. (Trustee of)); Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, 36 O.R. (3d) 418n, 154 D.L.R. (4th) 193, 221 N.R. 241, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 C.L.L.C. Â210-006 (sub nom. Ontario Ministry of Labour v. Rizzo & Rizzo Shoes Ltd., Adrien v. Ontario Ministry of Labour); Toronto-Dominion Bank v. RNG Group Inc. (2002), 2002 20913 (ON SC), 61 O.R. (3d) 567, 38 C.B.R. (4th) 110 (S.C.J.) Statutes referred to Interpretation Act, R.S.O. 1990, c. I.11, s. 10 Personal Property Security Act, R.S.A. 2000, c. P-7, s. 7(2) Personal Property Security Act, R.S.O. 1990, c. P.10, ss. 1(1) "security interest", 2, 5-8 Authorities referred to Driedger, E.A., Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983)

Malcolm Ruby and Massimo Starnino, for Xtra Canada, a Division of Xtra, Inc. Orestes Pasparakis, for GMAC Commercial Finance Corporation -- Canada. Nando De Luca, for KPMG Inc., in its capacity as Court- appointed Interim Receiver and Trustee in Bankruptcy.

The judgment of the court was delivered by

[1] BLAIR J.A.: -- This appeal involves a priority dispute over moveable property. It raises issues about conflict of law principles where competing claims to such property trigger different results under different provincial personal property security regimes. Specifically, the appeal raises the following question: Do the choice of law provisions found in s. 7(1) of the Personal Property Security Act, R.S.O. 1990, c. P.10 (the "Ontario PPSA") apply in circumstances where, because the instrument in question is not a financing lease, the Act is otherwise inapplicable? In other [page324] words, must there be a security interest under Ontario law before the choice of law provisions apply?

Background

[2] The contest in this case is between the lessor of 75 truck trailers to a bankrupt company, on the one hand, and the bankrupt's financial lender and its trustee in bankruptcy, on the other hand. The appellant, Xtra Canada, is the lessor of the trailers. The bankrupt company is Tri-Line Expressways Ltd. ("Expressways"), one of a group of subsidiaries of TCT Logistics Inc. (TCT Logistics Inc. and its subsidiaries are bankrupt and in receivership). The respondent, GMAC Commercial Finance Corporation -- Canada ("GMAC"), was the principal financier of the bankrupt group. To protect its advances it held (amongst other things) a security interest over all the assets of Expressways and registered that security interest under the Alberta Personal Property Security Act, R.S.A. 2000, c. P-7 (the "Alberta PPSA"). The respondent, KPMG Inc., is the trustee in bankruptcy and interim receiver of the bankrupt group.

[3] Xtra's Canadian head offices are in Ontario. Although the trailers are licensed in Ontario and delivery of them was taken in this province, they are in use across the country. Expressways and the TCT Logistics group operated principally out of Alberta and the trailers were garaged there.

[4] The Xtra lease is in the form of a Master Lease executed between Xtra Canada and "Tri-Line Freight Systems" ("Freight Systems") in 1995 [See Note 1 at end of the document]. Xtra did not register a financing statement under the Ontario PPSA because it took the position that its lease was a true lease and that the lessor did not have to register in Ontario in order to protect its interest as owner of the trailers. It did register a financing statement against Freight Systems pursuant to the Alberta PPSA, since a lease in whatever form is deemed to be a security interest in that province and registration is required to protect the owner's interest.

[5] The lessor under a true lease in which no security interest is created is not obliged to register the lease under the Ontario PPSA and its ownership rights will prevail in Ontario in a contest between the lessor and a trustee in bankruptcy or a creditor such as GMAC: Crop & Soil Service Inc. v. Oxford Leaseway Ltd. (2000), 2000 1838 (ON CA), 48 O.R. (3d) 291, 186 D.L.R. (4th) 85 (C.A.) at p. 292 O.R. [page325] The parties accept that if Ontario law applies, and provided the Master Lease is not a financing lease, Xtra will prevail in the dispute. On the other hand, if the law of Alberta applies, Xtra was required to register its deemed security interest under the Alberta PPSA, and the dispute will be determined on priority of registration principles under that legislation.

[6] There was an issue before the motions judge as to whether the Master Lease was a true lease or a financing lease, as those terms are commonly employed in personal property security jargon.2 He held it was the former and not the latter. Therefore, under s. 2,3 registration under the Ontario PPSA was not necessary in order to preserve the appellant's ownership interest in the trailers, in competition with others claiming a security interest in them under Ontario law. There was also an issue whether the lease was in fact between Xtra and Freight Systems or between Xtra and Expressways. The motions judge found the lease was between Xtra and Expressways.

[7] Although he found that the trailers were leased pursuant to a "true lease", and that the Ontario PPSA therefore had no application for purposes of preserving priorities in Ontario, the [page326] motions judge concluded, nonetheless, that the choice of law provisions of the Ontario PPSA (s. 7) did apply to determine the operative proper law for deciding the priority dispute between the parties. Those provisions dictated that Alberta law applied. Under the Alberta PPSA, unlike in Ontario, such a lease must be registered for the lessor to preserve its priority claim. The appellant had registered its interest under the Alberta PPSA, but against Freight Systems and not against Expressways, the appropriate entity; accordingly, the appellant's claim to priority over the claim of the trustee in bankruptcy and the general secured creditor failed.

[8] The appellant argues the motions judge erred in concluding that Alberta law governed the dispute, rather than Ontario law (which would see the trailers returned to Xtra because of its prior right as owner). Specifically, the appellant submits the motions judge erred in applying the choice of law provisions of s. 7(1) of the Ontario PPSA, when that Act otherwise had no application because of his finding that the lease was a true lease not requiring registration. Secondly, the appellant contends that even if Alberta law does apply, the conclusion of the motions judge that the lease was not registered against the correct party cannot stand, since it is founded on an erroneous finding that the lease was entered into between Xtra and Expressways rather than between Xtra and Freight Systems.

[9] The respondents originally cross-appealed from the motion judge's decision that the lease was a true lease. However, the cross-appeals were abandoned prior to argument.

[10] I would dismiss the appeal for the reasons that follow.

Analysis

Choice of law

[11] The primary issue for determination on this appeal is the choice of law question.

[12] Before dealing with the primary issue, however, I will first address an argument raised by the respondents. They now accept the motions judge's finding that the Master Lease was a true lease and have dropped their cross-appeals in that regard. They submit, however, that the motions judge erred in failing to ask himself whether, in addition to being a true lease, it also served to secure the payment or performance of an obligation: see Adelaide Capital Corp., supra. In this regard they submit further that the Master Lease has the indicia of a financing lease securing the payment or performance of an obligation, at least for purposes of a "security interest" within the meaning of s. 7(1) of the Ontario PPSA. [page327]

[13] I do not accept this argument. In the first place, I am satisfied that the motions judge did direct his mind to whether the Master Lease was a financing lease securing the payment or performance of an obligation. He found that it was not. There was ample evidence on the record to support this finding, and there is no basis for interfering with it. The respondents are simply trying to re-argue the true lease/financing lease issue under a different guise.

[14] Secondly, the argument appears to be based on a misconception of the types of leases that are caught or not caught by s. 2 of the Ontario PPSA. A lease that is a true lease, in which no security interest is created, is not caught by s. 2 and the lessor is not obliged to register a financing statement to protect its interest in Ontario. A lease document that is not truly a lease, but merely a cover for a financing transaction, is caught by s. 2, and registration is required. Finally, a lease that is truly a lease but which has as well the characteristic of securing payment or performance of an obligation, is also caught by s. 2, and registration is required. These latter two types of instruments are generally referred to as "financing leases". See Crop & Soil Service Inc., supra, and Adelaide Capital Corp., supra. The logical extension of the respondent's submission, however, is the creation of a fourth category, namely a lease that is a true lease and not a financial lease for purposes of s. 2, but is nonetheless a lease that secures payment or performance of an obligation for purposes of s. 7(1). No such category exists, in my opinion, and I would not give effect to this argument.

[15] I turn, then, to the central issue on the appeal.

[16] Section 7(1) of the Ontario PPSA forms part of a series of provisions in ss. 5 through 8 of the Act that deal with conflict of laws. The general rule is that the validity, perfection and effect of perfection or non-perfection of a security interest is governed by the law of the jurisdiction where the collateral is situated at the time the security interest attaches. However, in the case of intangibles or of equipment or inventory normally used in more than one jurisdiction, the rule is different, namely the applicable is where the debtor is located at the time of attachment. Section 7(1) provides:

7(1) The validity, perfection and effect of perfection or non-perfection,

(a) of a security interest in,

(i) an intangible, or

(ii) goods that are of a type that are normally used in more than one jurisdiction, if the goods are equipment or inventory leased or held for lease by a debtor to others; and [page328]

(b) of a non-possessory security interest in a security, an instrument, a negotiable document of title, money and chattel paper,

shall be governed by the law of the jurisdiction where the debtor is located at the time the security interest attaches.

[17] Subparagraph 7(1)(a)(ii) is the pertinent provision for the purposes of this proceeding. The trailers constitute equipment normally used in more than one jurisdiction. The Alberta PPSA contains a similar provision dealing with such goods, at subparagraph 7(2)(a)(ii).

[18] The motions judge stated his conclusion on the choice of law issue in the following passage, at para. 26 of his reasons:

On the issue of the proper law, I have some difficulty understanding how Xtra avoids the application of the provisions of both the Ontario PPSA and the Alberta PPSA that the proper law to determine interests in rolling stock is the law of the jurisdiction in which the lessee or debtor has its principal place of business being, in the case at bar, Alberta. It seems to me to be beyond dispute that, if a statute describes a proper law for the determination of interests arising under a contract, one does not determine proper law by an analysis of the connecting factors of the transaction as one would do if there was no statutory provision applicable. Accordingly, I am of the view that the proper law for the determination of the matters in dispute as between the Interim Receiver and Xtra is the law of Alberta.

[19] I agree. In my view Ground J. was correct in holding that s. 7(1) of the Ontario PPSA applied for choice of law purposes in the circumstances of this case, even though the provisions of that Act were not applicable to require registration of a financing statement concerning the Master Lease for preservation of priority purposes in this province. I have reached this conclusion for a number of reasons.

[20] First, the personal property security legislation in place in all the provinces and territories, with the exception of the Yukon (and Quebec, which does not have PPSA legislation), contains a choice of law stipulation similar to s. 7(1) of the Ontario PPSA and s. 7(2) of the Alberta PPSA. The legislatures in Canada have thereby sent a clear signal that, where there are priority disputes over equipment or inventory used in more than one jurisdiction, and claimants' interests span more than one jurisdiction, the legislative intention is that those disputes be determined pursuant to the laws of the jurisdiction where the debtor or lessee is located at the time the security interest attaches. Such an intention is consistent with the purpose and objective of the personal property security regimes enacted across the country, namely to promote certainty, uniformity and clarity in the laws relating to inter-provincial commercial dealings and to facilitate doing business in more than one jurisdiction: [page329] see Gimli Auto Ltd. v. BDO Dunwoody Ltd. (1998), 1998 ABCA 154, 219 A.R. 166, 160 D.L.R. (4th) 373 (C.A.); and Toronto-Dominion Bank v. RNG Group Inc. (2002), 2002 20913 (ON SC), 61 O.R. (3d) 567, 38 C.B.R. (4th) 110 (S.C.J.) at p. 576 O.R. Principles of comity as applied between provinces, and considerations of commercial stability and certainty in a fluid trans-provincial economy, underlie such a policy and support this conclusion.

[21] Secondly, the purposes of ss. 2 and 7 of the Ontario PPSA are quite different. The role of s. 2 is to delineate the types of interests to which the Act has application for purposes of registration and the preservation of priority in Ontario. Section 7, on the other hand, has a broader reach. Its concerns are with multi-jurisdictional disputes over goods that are normally used in one or more provinces, and it must be interpreted in that context. Its role is to clarify what proper law governs disputes involving the validity, perfection and the effect of perfection or non-perfection of competing interests in such a context. These functions are not irreconcilable in their separate operation. Giving s. 7(1) an effect independent of s. 2 and broader in its scope is consistent with the purposes and objects of the Act. Applying it in circumstances such as this makes it clear -- in conformity with the similar provisions of other provincial statutes -- that multi- jurisdictional disputes concerning moveable equipment such as the trailers here in question will be resolved on the basis of a standard premise across the country, that is, based upon the law of the province where the debtor has its principal place of business. Predictability is enhanced. Forum shopping is avoided.

[22] Where s. 7(1) is concerned, the first consideration is not to determine whether the transaction under review created a security interest, as defined in the Ontario PPSA. It is to determine whether the dispute gives rise to a question regarding the validity, perfection or the effect of perfection or non-perfection of a security interest in the relevant type of equipment or inventory, and, if it does, then to apply the choice of law provisions to determine the proper law governing the resolution of that dispute. In this context"security interest" is not confined to security interest as defined in the Ontario PPSA.

[23] Thirdly, the language of s. 7(1) of the Ontario PPSA -- and of the comparable provision in the Alberta legislation -- itself supports the foregoing interpretation and objectives, in my view. From Xtra's perspective, the Master Lease may not give rise to "a security interest", as defined by the Ontario PPSA. However, each of GMAC and Xtra are making a claim to the trailers, and GMAC's interest is a "security interest" as defined in both the Ontario and Alberta PPSAs. In addition, Xtra claims a security interest in the trailers under Alberta law. Thus the dispute at [page330] bar involves -- in the words of s. 7(1)(a) of the Ontario Act -- "the . . . perfection and effect of perfection or non-perfection . . . of a security interest in [equipment or inventory that are normally used in more than one jurisdiction]".

[24] The language of s. 7(2) of the Ontario PPSA is instructive as well in this regard. It states:

7(2) If a debtor changes location to Ontario, a perfected security interest referred to in subsection (1) continues perfected in Ontario if it is perfected in Ontario,

(a) within sixty days from the day the debtor changes location;

(b) within fifteen days from the day the secured party receives notice that the debtor has changed location; or

(c) prior to the day that perfection ceases under the law of the jurisdiction referred to in subsection (1), whichever is the earliest.

(Emphasis added)

[25] In short, the "security interest" referred to in s. 7(1) (a) of the Ontario PPSA is not confined to an Ontario security interest, as defined in ss. 1(1) and 2(a) of the Act. The very purpose of s. 7(2) is to continue a non-Ontario perfected security interest in Ontario when a debtor moves to this province, and s. 7(2)(c) expressly contemplates security interests perfected under the laws of other jurisdictions.

[26] Finally, the well-known principles of statutory construction buttress the foregoing interpretation and approach. The overarching principle of statutory interpretation is that the words of an Act are to be read purposively, in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme and object of the Act and the intention of the legislator: Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193 at p. 41 S.C.R., citing Elmer Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983). In addition, the Interpretation Act, R.S.O. 1990, c. I.11, s. 10, makes it clear that in reading the Ontario PPSA, the court is to give it:

. . . such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit.

[27] In my opinion, therefore, the choice of law provisions in the various provincial and territorial statutes are expressly designed to catch the type of situation arising in this case. There are competing claims to trailers that are normally used in more than one province, but that have connections to both Ontario [page331] and Alberta. One claimant, Xtra, has its head offices in Ontario, but also has offices in Manitoba and accepted lease payments on the trailers at its offices in British Columbia. Xtra has registered a financing statement claiming a security interest in the trailers in Alberta. The secured claimant, GMAC, has registered its security interest in Alberta, but not in Ontario. The bankrupt debtor company operates principally out of Alberta and the trailers are garaged in Alberta. To avoid the inconsistencies, and the potential forum shopping, that might result in such circumstances from applying the law of the place where the dispute is adjudicated (the lex fori), the PPSAs across the country stipulate that such disputes are to be governed by the law of the jurisdiction where the debtor is located at the time the security interest attaches. This provides for uniformity, certainty and clarity in the application of personal property security law across the country.

[28] I would dismiss the appeal on the choice of law issue.

Registration under the Alberta PPSA and the parties to the lease

[29] Under Alberta law, the lessor's interest in the Master Lease is deemed to be a security interest and registration under the Alberta PPSA is required. The appellant registered a financing statement, but not against the bankrupt, Expressways. Consequently, the motions judge concluded that its interest in the Master Lease is subordinate to that of GMAC, who had registered a financing statement against Expressways, and against that of Expressways' trustee in bankruptcy.

[30] Even if Alberta law applies, the appellant contends the motions judge erred in concluding that the lease was not registered against the correct party. It submits the conclusion is founded on an erroneous finding that the Master Lease was entered into between Xtra and Expressways rather than between Xtra and Freight Systems. I would not give effect to this argument.

[31] The motions judge found that even though the Master Lease on its face purported to be between Xtra and Freight Systems, the real parties to the agreement were in fact Xtra and Expressways. While there was evidence going both ways on this issue, there was ample evidence to support the motions judge's finding. Given that there was an evidentiary foundation for this conclusion, and given as well the procedural frailties attaching to some of [the] affidavits filed in support of the appellant's claim, I see no basis for interfering with the finding made by the motions judge. [page332]

Disposition

[32] For the foregoing reasons I would dismiss the appeal.

[33] The parties submitted draft bills of costs on a partial indemnity scale. The respondents are entitled to their costs of the appeal fixed in the amount of $9,500 each, inclusive of fees, disbursements and GST.

Appeal dismissed.

Notes

1. Depending on one's view of the evidence, Freight Systems is either a trade name under which Expressways carried on business or a partnership (perhaps long dissolved) of which Expressways was a member. On the view I take of the appeal, it is not necessary to resolve this issue.