ONTARIO

SUPERIOR COURT OF JUSTICE

IN BANKRUPTCY and INSOLVENCY

COURT FILE NO.: BK- 33-1642831
DATE: 2012/08/07

IN THE MATTER OF THE BANKRUPTCY OF

730 TRUCK STOP INC.

OF THE TOWN OF CARDINAL

IN THE PROVINCE OF ONTARIO

BEFORE: Mr. Justice Stanley J. Kershman

HEARD IN OTTAWA: July 24, 2012

APPEARANCE: Brian P. Doyle, Trustee

reasons for decision ON MOTION

[ 1 ] Doyle Salewski Inc. (“DSI” or “Proposal Trustee”) brings a motion on a without notice basis to approve its interim fees and disbursements in the amount of $19,269.23 for the period June 27, 2012 to July 12, 2012. The account is made up of fees of $16,027.50, disbursements of $1,059.68, and HST of $2,182.06.

[ 2 ] On July 5, 2012, 730 Truck Stop Inc. (“Truck Stop” or “the Debtor”) filed a Notice of Intention to Make a Proposal pursuant to s. 50.4(1) of the Bankruptcy and Insolvency Act , R.S.C., 1985, c. B-3 (the “ BIA ”). DSI was named as a Proposal Trustee.

[ 3 ] DSI was engaged in a substantial number of matters in its role as Proposal Trustee from the period June 27, 2012 to July 12, 2012, and sets out the work done during that period in an affidavit.

[ 4 ] Subsequent to the hearing of the motion, Truck Stop brought a motion for an extension of time within which to file its proposal. The Court granted the extension of time to file a proposal to September 6, 2012.

Issue - Should the Proposal Trustee be entitled to its fees and disbursements in the amount of $19,269.23 without having given notice to the creditors?

[ 5 ] The Proposal Trustee seeks to obtain payment of these fees without giving notice to the creditors prior to the filing of a proposal.

[ 6 ] The Trustee relies upon sections 39(3) and 50.4 of the BIA in support of its motion.

[ 7 ] Section 39(3) deals with the trustee carrying on the business of the debtor in a proposal under which the trustee can claim a special remuneration as may be agreed to with the debtor.

[ 8 ] In this case, no proposal has been filed. Furthermore, the Proposal Trustee is not carrying on the business of the Debtor. It may be monitoring the business of the Debtor but it is not carrying on the business of the Debtor. Therefore, in the Court’s view, that section is not applicable for the purpose of allowing the Proposal Trustee to take its fees at this time.

[ 9 ] Section 50.4 of the BIA deals with the filing of a Notice of Intention. That section provides no guidance in relation to the payment of fees to the trustee prior to the filing of a proposal on a without notice basis to the creditors.

[ 10 ] The Proposal Trustee also relies on a copy of Directive 27R concerning advances of trustees for bankruptcies under ordinary administration which provides the following circumstances for advance:

(1)resolution of creditors;

(2)a majority of inspectors; or

(3)by Court order approving the advance.

[ 11 ] The Proposal Trustee argues that in the following files the Court had approved the Proposal Trustee’s fees prior to the filing of a proposal.

[ 12 ] In the case of Sedberg School Association (Court File No. 550-11-01 2359-106, Estate Number 33-165079), Registrar Martin taxed the Proposal Trustees fees on May 25, 2010, prior to the filing of the proposal.

[ 13 ] In the case of P.J. Wallbank Manufacturing Co. Ltd. (Estate No. 33-1571352) Registrar Stevens on at least one occasion taxed the costs of the Proposal Trustee, prior to the filing of the proposal.

[ 14 ] The Trustee also relies upon s. 66(1) of the BIA which provides that except in Division II proposals, insofar as they are applicable, all provisions of the Act apply with such modifications as the circumstances require, to Division I proposals.

[ 15 ] The Court is not prepared to approve the interim professional fees of DSI on a without notice basis. There may be creditors who would oppose the relief sought, particularly if they hold security.

[ 16 ] While DSI has provided decisions dealing with this issue as set out above, the Court is not persuaded that the relief as claimed on a without notice basis should be granted.

[ 17 ] If the Proposal Trustee wishes to bring the motion on notice to the creditors, the motion can be set down before me to be dealt with at a later date.

[ 18 ] Accordingly, the relief as requested by the Proposal Trustee on the motion is refused.

[ 19 ] Order accordingly.

Mr. Justice Stanley J. Kershman

Released: August 7, 2012

COURT FILE NO.: BK-33-1642831

DATE: 2012/08/07

ONTARIO SUPERIOR COURT OF JUSTICE IN BANKRUPTCY and INSOLVENCY IN THE MATTER OF THE BANKRUPTCY OF 730 TRUCK STOP INC. OF THE TOWN OF CARDINAL IN THE PROVINCE OF ONTARIO BEFORE: Mr. Justice Stanley J. Kershman HEARD IN OTTAWA: July 24, 2012 APPEARANCE: Brian P. Doyle, Trustee REASONS FOR DECISION ON MOTION Kershman J.

Released: August 7, 2012