DATE: 20040610 DOCKET: C40598
COURT OF APPEAL FOR ONTARIO
RE:
BAKEMATES INTERNATIONAL INC., CONFECTIONATELY YOURS BAKERIES INC., CONFECTIONATELY YOURS INC., SWEET-EASE INC. and MARMAC HOLDINGS INC.
AND RE:
BARBARA PARRAVANO and MARIO PARRAVANO (Appellants) - and - KPMG INC., LAURENTIAN BANK OF CANADA, BUSINESS DEVELOPMENT BANK and ST. PAUL'S FIRE AND MARINE INSURANCE CO. (Respondents)
BEFORE:
LASKIN, CHARRON and LANG JJ.A.
COUNSEL:
Donald J. Brown for the appellants
Kenneth W. Crofoot for KPMG Inc. Aubrey E. Kauffman for the Laurentian Bank of CanadaBen Frydenbergfor the Business Development Bank
HEARD & ENDORSED:
June 9, 2004
On appeal from the judgment of Justice John D. Ground of the Superior Court of Justice dated August 6, 2003.
APPEAL BOOK ENDORSEMENT
[1] The appellants contend that Ground J. did not properly apply the principles approved of by Anderson J. in Crown Trust v. Rosenberg. We disagree. Those principles were approved of by Galligan J.A. in Soundair, the case relied on by the motions judge.
[2] Moreover, in our view the process and procedure followed by the motions judge in approving the settlement were appropriate. He considered the difference between the two expert reports and made express findings on those differences. He made no palpable and overriding error in his findings. Bearing in mind the deference accorded to a receiver's recommendation and the deference accorded by this court to a motion judge's findings, we see no basis to interfere with the decision approving the settlement.
[3] Accordingly, the appeal is dismissed.
[4] Our costs orders are as follows:
- KPMG shall have costs in the amount of $16,000 inclusive of disbursements and GST. In fixing this amount we agree that the receiver and BDBC are entitled to their costs of the motion before Cronk J.A. The money presently in court for security for costs shall be paid out to the receiver's solicitor in partial payment of its costs of the appeal. 2. Laurentian Bank shall have its costs of the appeal in the amount requested, $4527.71, inclusive of disbursements and GST. This amount shall be payable either by the appellants or out of the insurance settlement proceeds. 3. The Business Development Band of Canada shall have costs (which include the costs of the motion before Cronk J.A.) in the amount of $2,500 inclusive of disbursements and GST. Payment of those costs shall be a first charge on the insurance settlement proceeds after the Laurentian Bank has been paid out.