Bank of Montreal et al. v. Cage Logistics Inc. et al., 2003 ABCA 36

• Judge: Wittmann, J.A.
• Court: Court of Appeal (Alberta)
• Case Date: January 23, 2003
• Citations: 2003 ABCA 36;(2003), 320 A.R. 281 (CA)

Bk. of Mtrl. v. Cage Logistics Inc. (2003), 320 A.R. 281 (CA);

    288 W.A.C. 281

MLB headnote and full text

Temp. Cite: [2003] A.R. TBEd. FE.025

In The Matter Of The Companies Creditors Arrangement Act, R.S.C. 1985, c. C-36., As Amended

And In The Matter Of The Business Corporations Act, R.S.A. 2000, c. B-9

And In The Matter Of Cage Logistics Inc., 515737 Alberta Ltd., and Jo-Ann Trucking Ltd.

Bank of Montreal and The Canadian Western Bank (applicants) v. Cage Logistics Inc., 515737 Alberta Ltd., and Jo-Ann Trucking Ltd. (respondents)

(0301-0012-AC; 2003 ABCA 36)

Indexed As: Bank of Montreal et al. v. Cage Logistics Inc. et al.

Alberta Court of Appeal

Wittmann, J.A.

January 23, 2003.

Summary:

Romaine, J., decided that the applicant banks were not entitled to claim Breakage Costs from the respondent companies who were subject to the Companies' Creditors Arrangement Act (CCAA) process. The applicants applied for leave to appeal Romaine, J.'s, decision. They also sought an extension of time within which to seek leave to appeal.

The Alberta Court of Appeal, per Wittmann, J.A., dismissed the application where s. 14(2) of the CCAA provided that only the court appealed from had the power to extend the time for bringing a leave application. Romaine, J., had already refused an extension of time.

Creditors and Debtors - Topic 8599

Debtors' relief legislation - Companies' creditors arrangement legislation - Appeals (incl. leave to appeal) - Romaine, J., decided that the applicant banks were not entitled to claim Breakage Costs from the respondent companies who were subject to the Companies' Creditors Arrangement Act (CCAA) process - The applicants applied for leave to appeal Romaine, J.'s, decision - They also sought an extension of time to seek leave to appeal - The Alberta Court of Appeal, per Wittmann, J.A., dismissed the application where s. 14(2) of the CCAA provided that only the court appealed from had the power to extend the time for bringing a leave application - Romaine, J., had already refused an extension of time - The court also refused to allow the applicants to amend their motion to include an application for leave to appeal from Romaine, J.'s, decision which refused to extend the time for leave to appeal - The court stated that the result would be an unacceptable tautology which would mock the legislative intent expressed in s. 14(2).

Cases Noticed:

GAZ Metropolitain v. Wynden Canada Inc. (1982), 45 C.B.R.(N.S.) 11 (Que. C.A.), folld. [para. 10].

Korte et al. v. Cormie et al. (1996), 178 A.R. 209; 110 W.A.C. 209 (C.A.), folld. [para. 10].

Frost v. Suffesick and Kudryk (1998), 212 A.R. 148; 168 W.A.C. 148; 61 Alta. L.R.(3d) 261 (C.A.), refd to. [para. 12].

Canadian Human Rights Commission v. Canadian Pacific Ltd., [1988] 2 S.C.R. 271; 87 N.R. 333, refd to. [para. 12].

Smoky River Coal Ltd. et al., Re (1999), 237 A.R. 326; 197 W.A.C. 326; 175 D.L.R.(4th) 703 (C.A.), refd to. [para. 15].

Cineplex Odeon Corp., Re (2001), 24 C.B.R. (4th) 201 (Ont. C.A.), refd to. [para. 16].

Statutes Noticed:

Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, sect. 13, sect. 14 [para. 6].

Authors and Works Noticed:

Houlden and Morawetz, Bankruptcy and Insolvency Law of Canada (3rd Ed. 1992), p. 10A-67 [para. 15].

Counsel:

V.P. Lalonde, for the applicants;

H.A. Gorman, for the respondents.

P.T. McCarthy, Q.C., interested party for the respondents;

J.L. Medhurst-Tivadar, for the C.C.R.A.;

B.P. O'Leary, for the Monitor.

This application was heard on January 23, 2003, before Wittmann, J.A., of the Alberta Court of Appeal. The following decision was delivered orally by Wittmann, J.A., on January 23, 2003 and was filed on February 3, 2003.