Buland Empire Development Inc. v. Quinto Shoes Imports Ltd. et al.,

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Citation: (1999), 123 O.A.C. 288 (CA)
• Date: 11 June 1999

Buland Empire Dev. v. Quinto Shoes (1999), 123 O.A.C. 288 (CA)

MLB headnote and full text

Temp. Cite: [1999] O.A.C. TBEd. AU.006

Buland Empire Development Inc. (plaintiff/respondent) v. Quinto Shoes Imports Ltd., Tony Quintieri and Matthew Penrose (defendants/appellants)

(C30822)

Indexed As: Buland Empire Development Inc. v. Quinto Shoes Imports Ltd. et al.

Ontario Court of Appeal

Finlayson and Weiler, JJ.A., and MacPherson, J.(ad hoc)

August 3, 1999.

Summary:

Quinto Shoes and its directing mind, Tony Quintieri (the tenants), leased space for a shoe store in a shopping mall owned by the Buland Empire Development Inc. (the land­lord). The tenants left the store, apparently without notice and removed the inventory before the landlord had an opportunity to distrain on the goods. The landlord launched an action against the tenants and brought a motion for summary judgment.

The Ontario Court (General Division), per Marchand, J., granted the motion in a short endorsement (see paragraph 3 below). In light of this finding Marchand, J., granted judgment for liquidated damages of $16,906.96 and punitive damages of $180,000. The punitive damages component of the judgment flowed from s. 50 of the Landlord and Tenant Act, which required a tenant to forfeit and pay the landlord double the value of chattels wrongfully removed from rented premises. No appeal was filed from Marchand's judgment. The landlord filed a writ of seizure and sale. Quintieri filed an assignment in bankruptcy but was discharged nine months later. The landlord did not oppose the discharge. The Certificate of Discharge released Quintieri from all debts except those matters referred to in s. 178(1) of the Bankruptcy and Insolvency Act. The landlord refused to lift the writ of seizure and sale. Quintieri moved to have the writ lifted.

The Ontario Court (General Division), per Lederman, J., in a short endorsement, re­fused to lift the writ. Quintieri appealed.

The Ontario Court of Appeal allowed the appeal.

Bankruptcy - Topic 8987

Discharge of debtor - Liabilities not re­leased by discharge - Act of fraud of debt­or - A tenant left leased premises without notice and removed inventory - The land­lord was awarded punitive damages against the tenant for wrongful removal of chattels (Landlord and Tenant Act, s. 50) - The landlord filed a writ of seizure and sale - The tenant became bankrupt but was dis­charged except for debts or liabilities for obtaining property by false pretences or fraudulent misrepresentation (Bankruptcy and Insolvency Act, s. 178(1)(e)) - The tenant moved to have the writ lifted - The motions judge refused, equating fraudulent removal of property with false pretences or fraudulent misrepresentation - The Ontario Court of Appeal held that the writ should be lifted - The removal of goods was an entirely different activity than the making of statements - See paragraphs 10 to 15.

Bankruptcy - Topic 8992

Discharge of debtor - Liabilities not re­leased by discharge - Fines, penalties etc. -A landlord was awarded punitive damages against a tenant for wrongful removal of chattels (Landlord and Tenant Act, s. 50) -The landlord filed a writ of seizure and sale - The tenant became bankrupt but was discharged except for any fine, penalty, restitution order or other order similar in nature to a fine, penalty or restitution order, imposed by a court in respect of an offence (Bankruptcy and Insolvency Act, s. 178(1)(a)) - The tenant moved to have the writ lifted - The Ontario Court of Appeal held that the writ should be lifted - This was not the type of fine or penalty which survived a discharge in bankruptcy pur­suant to s. 178(1)(a) - The type of penalty covered by s. 178(1)(a) was one imposed for an offence against the state in either a criminal or quasi-criminal context - See paragraphs 16 to 21.

Cases Noticed:

Simone v. Daley et al. (1999), 118 O.A.C. 54; 170 D.L.R. (4th) 215 (C.A.), refd to. [para. 18].

S.M.A.B. v. J.N.H., [1994] 4 W.W.R. 281 (B.C.S.C.), refd to. [para. 18].

Statutes Noticed:

Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, sect. 178(1)(a), sect. 178(1)(e) [para. 11].

Landlord and Tenant Act, R.S.O. 1990, c. L-7, sect. 50 [para. 3].

Authors and Works Noticed:

New Oxford Dictionary of English (1998) [para. 14].

Counsel:

Timothy S.B. Danson, for the respondent;

Hans J. Saamen, for the defen­dant/appellant, Tony Quintieri.

This appeal was heard on June 11, 1999, before Finlayson and Weiler, JJ.A., and MacPherson, J.(ad hoc), of the Ontario Court of Appeal. The following decision was released by the court on August 3, 1999.