General Motors Corporation v. Tiercon Industries Inc.

CITATION: General Motors Corporation v. Tiercon Industries Inc., 2010 ONCA 666

DATE: 20101008

DOCKET: C51510

COURT OF APPEAL FOR ONTARIO

Winkler C.J.O., Rosenberg JA, and Pitt J. (ad hoc)

BETWEEN:

General Motors Corporation

Applicant

and

Tiercon Industries Inc.

Respondent

COUNSEL:

Ronald B. Moldaver Q.C., for the Appellant, Landlord, Galanda Properties Inc.

Margaret R. Sims and Jeffrey C. Carhart, for the Receiver Zeifman Partners Inc.

Daniel V. MacDonald, for the Royal Bank of Canada

Kim G. Ferreira, for General Motors Corporation

Heard and released Orally: September 13, 2010

On appeal from the Order of Justice G.B. Morawetz of the Superior Court of Justice dated December 9, 2009, with reasons dated December 23, 2009, and reported at (2009), 62 C.B.R. (5th) 90.

ENDORSEMENT

[1] This is an appeal from a decision of Morawetz J. dismissing an appeal from David Baird, Q.C. sitting as a claims officer.

[2] The appellant raises the following issues on this appeal.

[3] He asserts that the claims officer erred in finding certain assets to constitute chattels rather than fixtures. The claims officer and later Morawetz J. correctly stated the legal test to be applied. In our view, the application of that test was primarily a question of fact and we see no palpable and overriding error in the manner in which they did so.

[4] Accordingly, we are not prepared to interfere with those findings.

[5] The appellant asserts that the claims officer and the judge on appeal erred in placing the burden of proof on the appellant rather than the Receiver. In support of their argument, he relied upon the decision in Stellarbridge Management Inc. v. Magna International Canada Inc., [2004] 9852 (Ont. C.A.). The judge on appeal distinguished the case, in our view, rightly so. That ground of appeal must fail.

[6] The appellant submitted that the claims officer committed a palpable and overriding error in not accepting the evidence of the appellant’s expert as to the number of bolts used to secure the chattels to the foundation. We disagree. The claims officer dealt with this issue in note D-8 to his final ruling and declined to accept the evidence in question. This was a purely factual issue. The claims officer provided reasons for his decision. We see no reversible error on this ground of appeal.

[7] The final ground of appeal relates to the assessment of damages made by the claims officer. This issue is moot given the finding of the claims officer on the issue of characterization of the assets as chattels. In respect of those damage issues relating solely to rental, tax and maintenance, we see no error in principle. His finding that the appellant failed to provide evidence to support this claim is unassailable. This ground of appeal fails.

[8] Accordingly, the appeal is dismissed.

[9] Costs to the Receiver in the amount of $15,000 all inclusive. Costs to each of the other two Respondents in the amount of $3,000 all inclusive.

“Winkler C.J.O.”

“M. Rosenberg J.A.”

“R.W.M. Pitt J.”