



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 appellants 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) 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.


