DATE: 20051014
DOCKET: M32485 (C43411)
COURT OF APPEAL FOR ONTARIO
IN THE MATTER OF THE PERSONAL PROPERTY SECURITY ACT,
RE:
RUTTER INC. (Applicant (Respondent in Appeal)) – and – BMO CAPITAL CORPORATION and BUSINESS DEVELOPMENT BANK OF CANADA (Respondents (Appellants))
BEFORE:
CRONK, ARMSTRONG and LANG JJ.A.
COUNSEL:
Michael J. W. Round and Ian D. Collins
for the moving party
Barbara L. Grossman
for the respondents
HEARD & RELEASED ORALLY:
October 7, 2005
On appeal from the order of Justice J. Ground of the Superior Court of Justice dated April 12, 2005.
E N D O R S E M E N T
[1] The moving party seeks to appeal the order of Ground J. dated April 12, 2005 by which the moving party was directed: (i) to pay to the respondents the principal sums and accrued interest owed to the respondents under certain debentures; and (ii) to pay into court a further sum on account of unaccrued interest that allegedly would have been earned had the security held by the respondents matured in the normal course, together with other amounts alleged to be owing under the terms of the debentures.
[2] The moving party seeks to quash the appeal on the basis that the challenged order is interlocutory and not final and on the additional ground that the respondents, having derived significant benefit from the order, are now estopped from seeking to have it set aside. We reject these arguments.
[3] Although the impugned order is clearly interlocutory in some respects, it also finally disposed of the respondents’ secured position concerning their claims for all amounts owed under the debentures and thereby altered the secured priority position of the respondents in respect of those claims. In these respects, the order is final.
[4] Nor do we accept that the respondents are estopped from pursuing their appeal by virtue of the benefit derived by them under the order. The respondents complied with the order and notified the moving party immediately of their intention to appeal it. In our view, on this record, there is no conduct by the respondents that disentitles them to pursue their right of appeal. See Burrows v. Becker, 1968 57 (SCC), [1969] S.C.R. 162 and Lissenden v. Bosch, Limited, [1940] A.C. 412 (H.L.).
[5] Accordingly, the motion to quash is dismissed. The respondents are entitled to their costs of this motion on the partial indemnity scale, fixed in the total amount of $5,000, inclusive of disbursements and Goods and Services Tax.