DATE: 20050309
DOCKET: C41589
COURT OF APPEAL FOR ONTARIO
RE:
KELTON & FERRACUTI CONSULTANTS LIMITED and MALLT CONSTRUCTION INC. (Plaintiff/Respondent) – and – 588147 ONTARIO INC. and THE TORONTO DOMINION BANK (Defendants/Appellant)
BEFORE:
SIMMONS, GILLESE and LAFORME JJ.A.
COUNSEL:
J. Gardner Hodder
for the appellant
Mauro Marchioni
for the respondents
HEARD & ENDORSED:
March 2, 2005
On appeal from the order of Justice John H. Jenkins of the Superior Court of Justice dated February 26, 2004.
A P P E A L B O O K E N D O R S E M E N T
[1] 588147 Ontario Inc. has been dissolved since July 1, 1995 a date which is after the date judgment was obtained by 588147. Pursuant to s. 244 of the Business Corporations Act, any property of the corporation that had not been disposed of as at the date of dissolution was forfeited to and vested in the Crown. Thus, after July 1, 1995, title to the judgment was in the Crown and it was for the Crown to decide whether and how to realise upon the judgment.
[2] As the motions judge noted, 588147 has no capacity to carry out enforcement proceedings absent authority or instructions by the Crown. Once capacity was raised, the motions judge was entitled to consider the matter as he did. 588147 made no request to proffer evidence to demonstrate capacity.
[3] Regarding rule 59.06, in the circumstances of this case, it was open to the motions judge to find that an accidental omission or slip had taken place.
[4] Accordingly, the appeal is dismissed with costs to the respondent, on a partial indemnity basis, fixed at $3500 inclusive of GST and disbursements.