



COURT OF APPEAL FOR ONTARIO

CITATION: Growthworks Commercialization Fund Ltd. v.
    Growthworks WV Management Ltd., 2019 ONCA 371

DATE: 20190506

DOCKET: C65054 and C65055

Doherty, Rouleau and Brown JJ.A.

BETWEEN

Growthworks Commercialization Fund Ltd.

Applicant (Respondent)

and

Growthworks WV Management Ltd.

Respondent (Appellant)

Melvyn
    L. Solmon and Cameron Wetmore, for the appellant

Geoff R. Hall and Emily M. MacKinnon, for the respondent

Heard and released orally: May 3, 2019

On appeal from the orders of Justice Thomas J. McEwen of
    the Superior Court of Justice, dated January 22, 2018.

REASONS FOR DECISION


[1]

The appellant, Growthworks WV Management Ltd.,
    was the manager of the respondent, Growthworks Commercialization Fund Ltd. (the
    Fund), a corporation incorporated under the
Canada Business Corporations
    Act
, R.S.C. 1985, c. C-44 (the 
CBCA
). The parties share common
    ground that the Fund should be liquidated and dissolved. In their competing
    applications, they disagreed over the appropriate liquidation process. The
    motion judge ordered the liquidation of the Fund, using the process proposed by
    the Fund, which did not involve the appointment of a liquidator. He granted the
    Funds application and dismissed that brought by the Manager.

[2]

The Manager appeals and raises two grounds of
    appeal.

[3]

First, the Manager submits that the application
    judge erred by relying on s. 217(a) of the
CBCA
to grant the Fund an
    order for the liquidation and dissolution of the Fund. The Manager contends
    that section was not available to grant relief to the Fund. We regard the
    Managers challenge to the basis articulated by the judge for his liquidation
    order as overly technical and without any practical consequence. There was no
    dispute that the Fund should be liquidated and dissolved. Nor was there any
    dispute that the motion judge had the jurisdiction to order the liquidation of
    the Fund. Indeed, the Manager brought an application seeking that very relief.
    Accordingly, no error can lie where the application judge ordered the
    liquidation and dissolution of the Fund in response to both parties asking for
    that relief. We give no effect to this ground of appeal.

[4]

The Managers second ground of appeal  and the
    real issue that was before the application judge  concerns the process by
    which the Fund should be liquidated. The Manager sought an order that the Fund
    be liquidated under the supervision of the court, with the appointment of a
    liquidator. On its part, the Fund had asked for the liquidation to proceed
    using the process set out in the
CBCA
s. 211(7) concerning voluntary
    liquidations. The application judge ordered the liquidation to proceed in
    accordance with the process proposed by the Fund.

[5]

The Manager argues that the application judge
    erred because he ordered the liquidation without appointing a liquidator.

[6]

We see no reversible error by the application
    judge.

[7]

Section 217 of the
CBCA

grants a
    judge the power to make a wide range of orders [i]n connection with the
    dissolution or the liquidation and dissolution of a corporation. Under the
    section, a court may make any order it thinks fit. While the section
    enumerates several types of orders a court may make, the section clearly states
    that the enumeration of such orders does not limit the generality of the
    courts power to make any order it thinks fit. Nor does s. 217 mandate the
    appointment of a liquidator when a court orders the liquidation of a
    corporation.

[8]

The application judge gave cogent reasons why he
    considered that the process proposed by the Fund  which did not include the
    appointment of a liquidator - was the one most fit in the circumstances. He
    stated:

[T]he Fund is modest in size. The Fund has
    hired an expert to undertake the liquidation which is unique in nature given
    the illiquid securities. The Fund believes that it can complete the process in
    12-18 months.

I do not accept that the Manager has
    established that a Court-appointed liquidator could do it quicker or cheaper. I
    agree with the Fund that the evidence supplied by the Manager concerning fees
    is underdeveloped and speculative and based on limited discussions/information.

I cannot identify any real prejudice to the Manager
    in granting the relief sought by the Fund. It is my view that allowing the Fund
    to continue would likely be quicker than having a Court-appointed liquidator
    start anew.

[9]

Those conclusions find ample support in the
    record. As a result, we see no basis upon which to interfere with the
    application judges order concerning the liquidation process.

[10]

The appeal is dismissed.

[11]

The Fund is entitled to its costs of the appeal
    fixed in the amount of $10,000, inclusive of disbursements and H.S.T.

Doherty J.A.

Paul Rouleau
    J.A.

David Brown
    J.A.


