CITATION: Fifth Third Bank v. MPI Packaging Inc., 2010 ONCA 431

DATE: 20100610

DOCKET: C51588

COURT OF APPEAL FOR ONTARIO

Rosenberg, Armstrong and Juriansz JJ.A.

IN THE MATTER OF AN APPLICATION UNDER SUBSECTION 47(1) OF THE BANKRUPTCY AND INSOLVENCY ACT, R.S.C. 1985, c. B.-3

AND IN THE MATTER OF SECTION 101 OF THE COURTS OF JUSTICE ACT, R.S.O. 1990, c. C.43

BETWEEN:

Fifth Third Bank

Applicant/Respondent

and

MPI Packaging Inc.

Respondent/Appellant

Counsel:

Kevin D. Sherkin, for the appellant Paul Morton

John T. Porter and Leanne Williams, for the respondent Grant Thornton Limited

Brian N. Radnoff, for the respondent Zuckerman-Honickman Inc.

Roger Jaipargas, for the respondent Fifth Third Bank

Heard and endorsed: June 9, 2010

On appeal from the order of Justice Sarah Pepall of the Superior Court of Justice dated January 5, 2010.

APPEAL BOOK ENDORSEMENT

[1] As a result of the agreed process, the parties were aware that they were to submit their final and best offer by a specified date and that the bids were to remain confidential. On this basis it was open to the motion judge to find that an auction was not contemplated. We agree with her finding that the appellant’s bid was invalid.

[2] Accordingly, the appeal is dismissed with costs to the Receiver of $7,500; to Zuckerman-Honickman Inc. of $3,500; and to Fifth Third Bank of $3,500 all inclusive of G.S.T. and disbursements.