Court of Appeal for Ontario

Citation: Impact Tool & Mould Inc. v. Impact Tool & Mould Inc. Estate, 2013 ONCA 697

Dated: 2013-11-15

Docket: C57237

Before: Doherty, LaForme and Lauwers JJ.A.

Between

Doyle Salewski Inc., in its capacity as Court Appointed Interim Receiver of Impact Tool & Mould Inc.

Applicant (Respondent in Appeal)

and

BDO Dunwoody Limited, Trustee of the Estate of Impact Tool & Mould Inc., a Bankrupt and Kevin O’Brien

Respondents (Appellant)

Counsel:

Benjamin Blay, for the respondent (appellant) BDO Dunwoody Limited

Nicolas M. Rouleau, for the respondent (appellant) Kevin O’Brien

William J. Burden and Pavle Masic, for the applicant (respondent) Doyle Salewski Inc.

Heard: November 4, 2013

On appeal from the judgment of Justice Richard Gates of the Superior Court of Justice, dated May 9, 2013.

APPEAL BOOK ENDORSEMENT

[1] The respondent challenges the jurisdiction of this court. The parties agree that the jurisdiction turns entirely on the appeal provisions in s. 193 of the Bankruptcy and Insolvency Act. The Courts of Justice Act appeal provisions have no application.

[2] The appellants rely on s. 193(a) and s. 193(b) as providing the basis for an appeal as of right. Counsel for the appellants acknowledges that both arguments depend on his contention that the motion judge made a finding that the appellant (Doyle Salewski Inc.) was a creditor. With respect, he made no such finding. Indeed, he was careful not to make any such finding (see reasons at para. 26). The motion judge’s references to the rights of creditors and the duties of the trustee are simply references to the applicable general principles and not findings of fact. There is no right of appeal under s. 193(a) or (b).

[3] The appellants alternatively seek leave to appeal s. 193(a). The applicable test if set out in Business Development Bank of Canada v. Pine Tree Resorts, 2013 ONCA 282. In our view, this case fails all three components of that test.

[4] Leave to appeal is refused. The appeal is quashed. Costs to the respondent, Doyle Salewski Inc., in the amount of $14,000, inclusive of disbursements and taxes payable by the BDO personally.