



COURT OF APPEAL FOR ONTARIO

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

DATED:  20131115

DOCKET: C57237

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 OBrien

Respondents (Appellant)

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

Nicolas M. Rouleau, for the respondent (appellant) Kevin
    OBrien

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 judges 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.


