Crate Marine Sales Limited (Re), 2016 ONCA 140

CITATION: Crate Marine Sales Limited (Re) 2016 ONCA 140

DATE: 20160222

DOCKET: M46103 C61243

COURT OF APPEAL FOR ONTARIO

Hourigan J.A. (In Chambers)

BETWEEN

In the Matter of the Receivership of Crate Marine Sales Limited F.S.

Crate & Sons Limited, 1330732 Ontario Limited, 1328559 Ontario Limited, 1282648 Ontario Ltd., and 1382416 Ontario Ltd.

Harvey G. Chaiton and Doug Bourassa, for Crawmet Corp., the moving party

James P. McReynolds, for the appellant 2124915 Ontario Inc.

R. Brendan Bissell, for the A Farber & Partners Inc., the Receiver

Heard: February 18, 2016

ENDORSEMENT

[1] At issue on this motion is whether the appellant requires leave to appeal the order of Justice Penny, dated October 14, 2015, pursuant to s. 193(e) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the “BIA”) or if it has an automatic right of appeal pursuant to s. 193(c) of the BIA. The appellant submits that it has an automatic right of appeal. Crawmet Corp., the moving party, submits that leave is required.

[2] The appellant’s motion below sought a declaration that the receiver occupied Lagoon City Marina for a specified period and sought an order that the receiver pay occupation rent in the amount of $319,016.

[3] The motion was dismissed. The motion judge held that the receiver did not occupy the marina. He further held that if occupation rent were owing, it should be valued at $319,016, less whatever the receiver paid for utilities.

[4] On appeal, the threshold question that arises is whether under s. 193(c) of the BIA “the property involved in the appeal exceeds in value ten thousand dollars”. If it does not then leave is required under s. 193(c).

[5] There have been a number of cases from this court that have established the parameters for the interpretation of s. 193(c): see e.g., Robson Estate v. Robson 2002 CanLII 53241 (ONCA), Business Development Bank of Canada v. Pine Tree Resorts, 2013 ONCA 282, and Ontario Wealth Management Corp. v. Sica, 2014 ONCA 500. See also Re Dominion Founding Co., (1965) 1965 CanLII 837 (MB CA), 8 C.B.R. (N.S.) 74 (Man. C.A.).

[6] Two principles emerge from this case law:

(i) given the broad nature of the stay imposed by s. 195 of the BIA, the right of appeal without leave under s. 93(c) must be clearly applicable. In other words, it must be narrowly construed; and

(ii) the appeal must directly involve property exceeding $10,000 in value.

[7] The moving party relies on the above-noted cases in support of its submission that leave is required. However, when the cases are reviewed carefully it is clear that in each case the appeals did not directly involve property exceeding $10,000 in value.

[8] For example, in Robson the appeal was from a procedural order (i.e., a dismissal of a motion declaring an action a nullity and beyond the jurisdiction of the Bankruptcy Court). In Ontario Wealth Management Corporation the issue was not about the payment of money, but a question of priorities. In Business Development Bank of Canada the issue was the appointment of a receiver.

[9] In my view, these cases are distinguishable from the present case. Here the appeal is only of the decision of the motion judge that the receiver did not occupy the marina. There is no appeal taken from the finding that if occupation rent is owing then the proper amount payable is $319,016.00 less utility costs. Therefore, if the appeal is successful and the receiver is liable for occupation rent, then the amount in question is final without further recourse to court action.

[10] This is not a situation, like in the cases cited by the moving party, where the property is secondary to the appeal. To the contrary, central to this appeal is the issue of liability for a fixed sum far in excess of $10,000. I find that property with a value in excess of $10,000 is directly involved on this appeal. Accordingly, I would dismiss the motion and order that the appeal proceed without the requirement of leave of this court. The respondents shall have until March 18, 2016 to file their factum.

[11] Costs of the motion inclusive of fees, disbursements and applicable taxes are payable to the appellant by the moving party in the amount of $2,500 within 30 days.

“C.W. Hourigan J.A.”