



COURT OF APPEAL FOR ONTARIO

CITATION: Struik v. Dixie Lee Food Systems Ltd., 2018 ONCA 22

DATE: 20180115

DOCKET: M48179 (C64174)

Feldman, Pepall and Huscroft JJ.A.

BETWEEN

Maria Struik

Plaintiff (Moving Party)

and

Dixie
    Lee Food Systems Ltd., Dixie Lee of Canada Inc.,

Dixie
    Lee Capital Corporation, Joseph Murano, Noele Murano and

Dixie Lee Ontario Ltd.

Defendants (Respondents)

Robert J. Reynolds, for the moving party

Jillian Burford-Grinnell, for the respondent, Dixie Lee
    Ontario Ltd.

Heard: January 8, 2018

REASONS FOR DECISION

[1]

On January 23, 2017,
Rasaiah J. granted partial
    summary judgment to Maria Struik (Struik).  She declared Dixie Lee Ontario
    Ltd. (DLOL) to be a guarantor of certain obligations and ordered it to pay
    Struik monthly amounts together with interest and costs.

[2]

DLOL served a notice of appeal from the judgment
    on March 1, 2017, after the expiry of the requisite time limited for appeal. 
    It was not accompanied by any motion seeking an order to extend the time. DLOL
    was described as the only appellant. Counsel for Struik wrote and advised
    opposing counsel that the notice was out of time and of no effect.

[3]

On March 3, 2017, Rasaiah J. granted a further
    order appointing Struik as the Receiver of all of the assets, undertakings and
    properties (the Property) of DLOL with the power to take possession, control
    and manage the business of DLOL and, on notice to DLOL and Joseph Murano (the
    directing mind of DLOL), market and sell the Property.  All rights and remedies
    against DLOL, the Receiver, or affecting the Property were stayed.  This order
    was never appealed.

[4]

In spite of the terms of the receivership order,
    DLOL sought an extension of time to serve and file the notice of appeal.  A
    chambers judge of this court granted the extension by order dated August 1,
    2017.  It is unclear whether the receivership order was brought to the
    attention of the chambers judge.

[5]

Struik then brought a motion before this panel
    to review the order of the chambers judge.  Among other things, she submits
    that the chambers judge reached an unreasonable result in failing to dismiss
    the motion to extend because the appeal is unmeritorious.

[6]

We agree with this submission. The thrust of the
    notice of appeal is that Struik breached and repudiated the contract relating
    to the guarantee thereby releasing DLOL from the guarantee. In lengthy and
    detailed reasons, Rasaiah J. expressly addressed this issue noting that the
    language of the guarantee precluded such defences and claims.  In oral
    argument, while counsel for the respondent disagreed with the conclusions of
    the motion judge, she was unable to identify any specific error made by the
    motion judge in either her findings or analysis.

[7]

Moreover, the justice of the case is not served
    by permitting the appeal to proceed.   Although not raised by either party,
    given the terms of the receivership order, the party purporting to resist the
    motion and to proceed with the appeal of the January 23, 2017 judgment, namely
    DLOL, has no status independent of the receiver to do so.

[8]

In these circumstances, the motion is granted
    and the order to extend the time for service of the notice of appeal is set aside. 
    There shall be no order for costs.

K. Feldman
    J.A.

S.E. Pepall
    J.A.

Grant
    Huscroft J.A.


