COURT OF APPEAL FOR ONTARIO

DATE: 20050930

DOCKET: C42995

RE:

IN THE MATTER OF THE BANKRUPTCY OF FREDERICK COGAN, A BANKRUPT

BANK OF MONTREAL (Moving Party/Respondent on Cross Motion (Appellant)) – and – FREDERICK COGAN (Respondent/Moving Party on Cross Motion (Respondent))

BEFORE:

McMURTRY C.J.O., SIMMONS AND MACFARLAND JJ.A.

COUNSEL:

Daniel R. Dowdall, R. Shayne Kukulowicz and R. Brenden Bissell

for the appellant

Bryan Finlay, Q.C., David E. Baird, Q.C. and Michael Statham

for the respondent

HEARD & RELEASED ORALLY:

September 23, 2005

On appeal from the judgment of Justice Charles T. Hackland of the Superior Court of Justice dated January 13, 2005 and from the costs endorsement of Justice Charles T. Hackland dated March 21, 2005.

E N D O R S E M E N T

[1] The essence of the trial judge’s finding at paragraph 28 of his reasons is that he was not satisfied that there were assets that had not been realized or distributed within the meaning of s. 41(11) of the Bankruptcy and Insolvency Act. Particularly in light of the fact that the bank failed to adduce evidence indicating that the two 1997 Boddy appraisals likely would have altered Urbandale’s valuation of the Bank Street or Belfast Street properties, we see no error in this conclusion either as it relates to a potential cause of action for fraud or as it relates to a potential claim by the Trustee for a compensation order under s. 204.3 of the Bankruptcy and Insolvency Act.

[2] Hackland J. made substantial indemnity costs orders in respect of the annulment motion and the reappointment motion and gave thorough reasons for making those orders. In doing so, he acted within the appropriate ambit of his discretion and made no error in principle. In the absence of any such error neither the scale of costs awarded nor the quantum of those costs warrants interference by this court.

[3] In the result, while leave to appeal costs is granted, the appeal as to costs is dismissed and the appeal is dismissed.

[4] Costs to the respondent fixed in the sum of $15,000.00 inclusive of disbursements and G.S.T.

"R. McMurtry C.J.O."

"Janet Simmons J.A."

"J. MacFarland J.A."