Court of Appeal for Ontario

CITATION: Royal Bank of Canada v. 1227942 Ontario Limited, 2012 ONCA 332

DATE: 20120518

DOCKET: C54896

BEFORE: O’Connor A.C.J.O., Feldman and Ducharme JJ.A.

BETWEEN

Royal Bank of Canada

Respondent

and

1227942 Ontario Limited, 1227944 Ontario Limited, Victor Vetro also known as Vittorrio Joseph Vetro and Linda Montanari

Moving Parties (Appellants)

COUNSEL:

Alan S. Price, for the moving parties (appellants)

Milton A. Davis, for the respondent

Heard and released orally: May 14, 2012

On appeal from the order of Justice Baltman of the Superior Court of Justice, dated November 10, 2010.

ENDORSEMENT

[1] The appellant, Montanari, appeals para. 3 of the order of Baltman J. (the motion judge) dated November 25, 2010, which reads as follows:

THIS COURT ORDERS that the fees and disbursements of the Equitable Receiver and the Receiver and its counsel, as set out in the Reports and the Fee Affidavits, are hereby approved and that Linda Montanari and Victor Vetro shall pay to the Equitable Receiver the sum of $89,019.25 in consequence thereof and the sum of $2,500.00 for the costs of this motion.

[2] The basis for the appeal relates to the April 18, 2007 order of Justice Quigley. That order provided that if Montanari paid RBC the amount of the outstanding judgment together with interest by April 27, 2007, any further equitable receivership costs would be to the account of Victor Vetro.

[3] Montanari satisfied the judgment on April 27. The order under appeal included costs incurred after April 27.

[4] It appears that Justice Quigley’s order was not brought to the motion judge’s attention. The respondent, RBC, agrees that para. 3 of the motion judge’s order is in error and that it should be set aside and returned to the motion judge to be dealt with in accordance with Justice Quigley’s order.

[5] Accordingly, leave to appeal is granted and the appeal is allowed. Paragraph 3 of the November 25, 2010 order is set aside. The matter of the fees and disbursements addressed in para. 3 should be referred back to the motion judge for reassessment.

[6] During oral argument, counsel informed the court that the equitable receiver will be completing the sale of 2425 Dalton Drive in the near future. We direct that the proceeds of the sale not be dispersed for the payment of the equitable receiver’s and its counsel’s fees and disbursements until all issues of entitlement are determined by the motion judge.

[7] Costs to the appellant fixed in the amount of $10,000, inclusive of disbursements and applicable taxes.

“D. O’Connor A.C.J.O.”

“K. Feldman J.A.”

“E. Ducharme J.A.”