DATE: 20050228

DOCKET: C41726 & C41743

COURT OF APPEAL FOR ONTARIO

RE:

HSBC BANK CANADA (Applicant/Appellant) – and – CHESTER WAXMAN and MORRIS J. WAXMAN (Respondents/Appellants) – and - MORRIS J. WAXMAN (Applicant/Respondent) – and – CHESTER WAXMAN, ROBERT WAXMAN, GARY WAXMAN, WARREN WAXMAN, LIGHTNING DISTRIBUTION INC., CHW HOLDINGS INCL, GAWIX FINANCIAL CORPORATION, WAXTEK METALS INC., I. WAXMAN & SONS LIMITED and CHESTER WAXMAN, WAYNE LINTON AND GARY WAXMAN in their capacities as TRUSTEES OF THE CHESTER WAXMAN FAMILY TRUST (Respondents/Appellants)

BEFORE:

LABROSSE, WEILER and BLAIR JJ.A.

COUNSEL:

A. Habbas and B. Frederikse for HSBC

Lorne Silver for Chester Waxman et al

R.S. Harrison and Gideon Forrest for Morris Waxman

HEARD & ENDORSED:

February 24, 2005

On appeal from the judgment and orders of Justice Farley of the Superior Court of Justice dated April 4, 2004.

A P P E A L B O O K E N D O R S E M E N T

[1] However laudable was the intent of Farley J. to achieve a result which would satisfy all parties, he erred in our respectful views in failing to address the issues and arguments that he was asked, and required, to decide.

[2] Even if he did, in effect, grant the alternative relief sought on the Morris Waxman oppression motion, he did so without any apparent consideration of the factors regarding the oppression remedy raised on the record, and without any apparent consideration of the intertwined issues raised on the Bank’s application – including the primary issue of whether the Bank has a valid security in priority to Morris’ judgment creditor claim. This was an error.

[3] Accordingly, the order of Farley J. is set aside and the issues raised on the application and the motion are returned to the Commercial List for determination.

[4] Costs fixed at $6000 payable to each appellant.