DATE: 20060502

DOCKET: C44279

COURT OF APPEAL FOR ONTARIO

RE:

MERIDIAN CREDIT UNION LIMITED (Plaintiff) – and – 984 BAY STREET INC., and DEVENDRANAUTH MISIR also known as DEV MISIR (Defendants)

BEFORE:

ROSENBERG, MOLDAVER and LANG JJ.A.

COUNSEL:

Sean Cumming

for Integrated Health Investments Corporation

Benjamin Salsberg

for Bay Wellesley Health Services

Paul G. MacDonald and Jason Murphy

for KPMG, the Receiver

Martin Kaplan

Meridian Credit Union Limited

HEARD & ENDORSED:

April 28, 2006

On appeal from the order of Justice John D. Ground of the Superior Court of Justice dated September 6, 2005.

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

[1] The receiver properly concedes that the motion judge’s statement of law is overly broad and even if there was a power to sell free of the leases, the motion judge would still be required to consider the equities. Having regard to the endorsement of August 26, 2005 we cannot be satisfied that the appellants knew that they had to lead evidence about the equities once the legal issue was determined.

[2] Accordingly, the appeal is allowed and the order is set aside and the matter is remitted back to the Superior Court of Justice with costs fixed at $4,000 inclusive of G.S.T. and disbursements.

[3] Costs of the motion reserved to the judge hearing the matter.