DATE: 20060508

DOCKET: C44141

COURT OF APPEAL FOR ONTARIO

RE:

GENERAL MOTORS CORPORATION (Applicant) -and- TIERCON INDUSTRIES INC. (Respondent)

BEFORE:

LASKIN, MACPHERSON AND LANG JJ.A.

COUNSEL:

Ronald B. Moldaver, Q.C.

for the appellant Galanda Properties Inc.

Paul G. MacDonald

for the respondent Royal Bank of Canada

Jeffrey C. Carhart and

Margaret R. Sims

for the respondent Zeifman Partners Inc.

D.J. Miller and

Deborah Palter

for the respondent General Motors Corporation

HEARD & ENDORSED:

May 5, 2006

On appeal from the judgment of Justice Alexandra Hoy of the Superior Court of Justice, dated September 7, 2005 made at Toronto, Ontario.

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

[1] In our view, this appeal is not moot.

[2] The appellant landlord challenges the order of Hoy J., and in effect, the order of Greer J., on two grounds:

(1) In permitting the receiver to take over the tenant’s position under the lease, the motion judges exercised their discretion in an unprincipled way; and

(2) There was material non-disclosure on the without notice motion before Greer J.

[3] We do not accept either argument. Instead, we agree entirely with the reasons of Hoy J.

[4] In respect of the first ground, on the appointment of a receiver the court was entitled to impose “just” terms. As paragraph 20 of Hoy J.’s reasons demonstrate, the receivership order justly balanced the interests of the employees and the interests of the landlord.

[5] As she found, the landlord was receiving rent in accordance with the lease, could look forward to vacant possession within nine months and had not shown that it was prejudiced by the delay in obtaining possession. We see no error in these findings.

[6] Although the landlord’s affidavit evidence claimed prejudice, in the light of the lack of detail in this evidence, the motion judge, in our view, was entitled to make the finding that she did.

[7] In respect of the second ground, Hoy J. found that there was no material non-disclosure. The appellant has not persuaded us that this finding is tainted by any palpable and overriding error.

[8] The appellant also challenges Hoy J.’s costs order. We cannot say that the motion judge exercised her discretion on costs unreasonably.

[9] The appeal is therefore dismissed. We order the costs of the appeal as follows:

For the receiver: $10,000.00

For GM: $3,000.00

For the Royal Bank: $2,000.00

All these awards are inclusive of disbursements and G.S.T.