COURT OF APPEAL FOR ONTARIO

CITATION: Moshav Naom Non-Profit Co-Operative Housing Corporation v. Guillaume, 2012 ONCA 238

DATE: 20120416

DOCKET: M41135, M41151 and M41204 (C55031)

Lang, Epstein and Hoy JJ.A.

BETWEEN

Mintz & Partners Limited Court Appointed Receiver and Manager of Moshav Naom Non-Profit Co-Operative Housing Corporation and Not in It's Personal Capacity

Applicant (Respondent/ Responding Party in M41135 & M41204/ Moving Party in M41151)

and

Valerie Guillaume

Respondent (Appellant/ Moving Party in M41135 & M41204/ Responding Party in M41151)

Valerie Guillaume, acting in person

Paula Boutis, for the respondent

Heard and released orally: April 4, 2012

On a motion to review the order of Justice Doherty of this court dated March 5, 2012, on a motion to quash the appeal and on a motion for direction.

ENDORSEMENT

[1] There are three motions before this court today. First, the appellant moves to review the order of a single judge of this court. Second, the respondent moves to quash the appeal on the basis that it should properly have been brought in Divisional Court. Third, the appellant moves to quash or adjourn the respondent’s motion to quash on the basis that she was not properly served.

[2] We begin with the third issue regarding service. We heard that motion first but reserved our decision until we heard submissions on the motion to quash. The respondent’s motion record to quash the appeal was accompanied by an affidavit stating that the motion material was personally served on the appellant on March 14, 2012. Quite apart from the affidavit of service, we held the matter down from 10:45 a.m. to 12:05 p.m. to give the appellant the opportunity to review the three-page factum and the four-paragraph supporting affidavit. The appellant was otherwise very familiar with the material referred to on this motion.

[3] The record discloses both that the appellant was served on March 14 and, in any event, that she had adequate opportunity to prepare to argue the motion to quash this morning. Indeed, the appellant’s level of preparation was reflected in the very informed argument that she made on the motion to quash, which included reference to legal authorities. Accordingly, the motion to quash or adjourn the appeal for improper service is denied.

[4] We turn to consider the motion to quash the appeal. In our view, this motion must succeed. Section s. 171.16(1) of the Cooperative Corporations Act provides that the proper route of appeal is to the Divisional Court. In that court, the appellant may raise her grounds of appeal, including any argument for relief from forfeiture, if one is available. Accordingly, the motion to quash is granted and the appeal to this court is dismissed.

[5] In these circumstances, it is unnecessary to deal with the appellant’s motion to review the order of the single judge. That motion is also dismissed.

[6] Costs are awarded to the respondent in the amount of $1,750.00, inclusive of disbursements and applicable taxes.

[7] Approval as to form and content by the appellant regarding the order to quash is dispensed with.

“S.E. Lang J.A.”

“Gloria J. Epstein J.A.”

“Alexandra Hoy J.A.”