



COURT OF APPEAL FOR ONTARIO

CITATION:
Lisec
    America, Inc. v. Barber Suffolk Ltd., 2012 ONCA 216

DATE: 20120402

DOCKET: C53360

Blair and LaForme JJ.A. and Benotto J. (
ad
    hoc
)

BETWEEN

Lisec America, Inc.

Applicant (Appellant)

and

Barber Suffolk Ltd. and
Roynat
    Capital Inc.

Respondents (
Respondents in Appeal
)

Brett Harrison and Jeffrey Levine, for the appellant

Craig J. Hill, for the respondent Roynat Capital Inc.

No one appearing for the respondent Barber Suffolk
    Limited

Heard: October 14, 2011

On appeal from the order of Justice Frank Marrocco of the
    Superior Court of Justice, dated February 9, 2011.

ADDENDUM

[1]

Since the release of our decision in this matter on January 20, 2012, we
    have received a letter from Mr. Hill on behalf of Roynat Capital Inc. drawing our
    attention to an error in the chronological timeline referred to in paragraph 20
    of our reasons and to a reference to Roynats having registered a financing
    statement sometime thereafter, meaning after July 9, 2008.  He expressed
    concern that our conclusion as to priority of registration may have been
    reached based upon an erroneous chronology.

[2]

We have received no communication from counsel for Lisec on this issue.

[3]

Mr. Hill rightly points out that there was no registration by Roynat
    after July 9, 2008.  Roynats financing statement relating to the Barber Glass
    re-financing pursuant to its Debenture dated July 7, 2008 was registered on
    June 24, 2008.  Roynat had also had an earlier PPSA registration against Barber
    Glass dated December 15, 2004.  However, there is nothing in the record to
    indicate what the particulars of the security agreement underlying that
    registration were.  While the December 15, 2004 registration was referred to in
    passing in the materials and in oral argument, the thrust of Roynats argument
    was based on the security interest it obtained through its July 7, 2008
    Debenture and the PPSA registration in respect of it on June 24, 2008.

[4]

To correct and clarify the chronological timetable set out in paragraph
    20 of the reasons, that paragraph should be read as amended in the following
    fashion:


(a)   by
      including an initial entry stating December 15, 2004  Roynat registers a
      financing statement against Barber Glass; and,

(b)   by
      moving the After July 9, 2008 entry and its description to a point in the
      chronology timeline following the June 19, 2008 entry and renaming it June
      24, 2008.


[5]

However, neither of the Roynat registrations affects the reasoning
    underlying our decision or the result.  They are not pertinent to Lisecs
    priority.

[6]

As the reasons indicate, Lisecs priority is derived from its PPSA
    registration against Barber
Suffolk
, not from its registration against
    Barber
Glass.
Lisecs registration against Barber Glass in November,
    2010, simply preserved the security interest in the Waterjet already perfected
    through the Barber
Suffolk
registration.  This is consistent with the
    regime contemplated by the combination of ss. 9, 39 and 48(2) of the Act, as
    noted in paragraph 41 of our reasons.

R.A. Blair J.A.

H.S. LaForme J.A.

M.L. Benotto J. (
ad
    hoc
)


