Court File and Parties

Citation: Citizens Bank of Rhode Island v. Paramount Holdings Canada Company, 2008 ONCA 891 Date: 2008-12-23 Docket: C48693

Court of Appeal for Ontario Before: O’Connor A.C.J.O., Doherty and Rosenberg JJ.A.

Between:

Citizens Bank of Rhode Island Appellant (Applicant)

and

Paramount Holdings Canada Company, Paramount Holdings Canada Company II and Image Craft Inc. Respondents

Counsel: Alan J. Butcher, for the appellant Transcorp Distribution Inc. Harvey G. Chaiton and Maria Konyukhova for the respondents

Heard and released orally: December 19, 2008 On appeal from the order of Justice Alexandra Hoy of the Superior Court of Justice dated March 26, 2008.

Endorsement

[1] The appellant submits that there were material facts in dispute and that the motion judge should have directed a trial of the issue. At the hearing before the motion judge the position taken by the appellant was that there were no material facts in dispute and it did not press for a trial of an issue. It is not open to the appellant to now seek trial of an issue when it was not sought on the motion: see 1213763 Ontario Inc. v. Shopsy’s Hospitality Inc., 2008 ONCA 863 at para. 25.

[2] In any event, we are satisfied that there were no material facts in dispute. On the facts not in dispute, there were juristic reasons for the deprivation. As the motion judge noted, the debtor/creditor relationship, the manner in which the funds were dealt with, the existence of the bankruptcy proceedings and the general insolvency nature of the proceedings were juristic reasons: see Canada (Attorney General) v. Confederation Life Insurance Co., 1995 CanLII 7097 (ON SC), [1995] O.J. No. 1959 (Gen. Div.) (affirmed (1997), 32 O.R. (3d) 102 (C.A.) at para. 220.

[3] Accordingly, the appeal is dismissed with costs fixed in the amount of $12,000 inclusive of disbursements and G.S.T.

Signed: "D. O’Connor A.C.J.O." "D. Doherty J.A." "M. Rosenberg J.A."