Ontario Wealth Management Corp. v. Sica Masonry and General Contracting Ltd., (2014) 323 O.A.C. 101 (CA)

• Jurisdiction: Ontario
• Judge: Strathy, J.A.
• Court: Court of Appeal (Ontario)
• Citation: (2014), 323 O.A.C. 101 (CA),2014 ONCA 500
• Date: 10 April 2014

Ont. Wealth Mgt. v. Sica Masonry (2014), 323 O.A.C. 101 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. JL.010

In The Matter Of Section 243(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended; Section 101 of the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended; and Section 68(1) of the Construction Lien Act, R.S.O. 1990, c. 30 as amended

Ontario Wealth Management Corporation (responding party/respondent) v. 1713515 Ontario Limited (responding party/respondent) and Sica Masonry and General Contracting Ltd. (moving party/appellant)

(C57967; M43450; 2014 ONCA 500)

Indexed As: Ontario Wealth Management Corp. v. Sica Masonry and General Contracting Ltd.

Ontario Court of Appeal

Strathy, J.A.

June 26, 2014.

Summary:

The motion judge held that the mortgage of the respondent had priority over the construction lien of the moving party. He directed the Receiver of the property owner to disburse the balance of the proceeds of sale of the mortgaged property to the respondent. The moving party sought to appeal on the basis the motion judge incorrectly interpreted the priority scheme in s. 78 of the Construction Lien Act. Rule 31(1) of the Bankruptcy and Insolvency General Rules provided that a notice of appeal had to be filed within 10 days after the day of the order appealed from. The moving party's notice of appeal was filed 28 days after the order was made. The moving party moved for an extension of time to appeal. If an extension was granted, the moving party sought a declaration that it had an appeal as of right. Alternatively, it sought leave to appeal.

The Ontario Court of Appeal, per Strathy, J.A., dismissed the motion for an extension of time. Although that disposed of the matter, leave to appeal was required in any event and Strathy, J.A., would not have granted leave.

Bankruptcy - Topic 6888

Practice - Appeals - Leave to appeal - The motion judge held that the mortgage of the respondent had priority over the construction lien of the moving party - He directed the Receiver of the property owner to disburse the balance of the proceeds of sale of the mortgaged property to the respondent - The moving party sought to appeal on the basis the motion judge incorrectly interpreted the priority scheme in s. 78 of the Construction Lien Act - The moving party sought a declaration that it had an appeal as of right - Alternatively, it sought leave to appeal - The Ontario Court of Appeal, per Strathy, J.A., dismissed the motion - The appeal route was governed by s. 193 of the Bankruptcy and Insolvency Act (BIA) - An appeal lied to this court as of right in the circumstances described in ss. 193(a) to (d) of the BIA - In all other cases, leave had to be sought from a single judge under s. 193(e) - Sections 193(a) to (d) did not apply - The issue before the motion judge was simply a matter of which claim had priority - This was the daily fare of judges in bankruptcy proceedings - To provide an appeal as of right from such decisions would negate the court's gatekeeping function under s. 193(e) and would tie up bankruptcy proceedings in interlocutory appeals over routine issues - Therefore, leave was required - The parties agreed that the appeal would not unduly hinder the proceedings - However, Strathy, J.A., was not persuaded that the proposed appeal was meritorious or that the appeal raised an issue of general importance to the practice of bankruptcy and insolvency - Leave to appeal was denied - See paragraphs 35 to 45.

Bankruptcy - Topic 6889

Practice - Appeals - Time for (incl. extension of) - The motion judge held that the mortgage of the respondent had priority over the construction lien of the moving party - He directed the Receiver of the property owner to disburse the balance of the proceeds of sale of the mortgaged property to the respondent - The moving party sought to appeal on the basis the motion judge incorrectly interpreted the priority scheme in s. 78 of the Construction Lien Act - Rule 31(1) of the Bankruptcy and Insolvency General Rules provided that a notice of appeal had to be filed within 10 days after the day of the order appealed from - The moving party's notice of appeal was filed 28 days after the order was made - The moving party moved for an extension of time to appeal - The Ontario Court of Appeal, per Strathy, J.A., dismissed the motion - There was no evidence that the moving party formed an intention to appeal prior to the expiry of the appeal period - It did not inform the Receiver of its intent to appeal until it served the notice of appeal - The length of the delay was not inordinate, although the moving party had not offered any explanation for it - The delay had not caused any significant prejudice to the Receiver - Finally, Strathy, J.A., was not convinced that the appeal had any merit - See paragraphs 26 to 34.

Cases Noticed:

Bearcat Exploration Ltd. (Bankrupt), Re (2003), 339 A.R. 376; 312 W.A.C. 376; 2003 ABCA 365, refd to. [para. 5].

Smoke, Re (1989), 77 C.B.R.(N.S.) 263 (Ont. C.A.), refd to. [para. 5].

Royal Bank of Canada v. Lawton Developments Inc. (1994), 16 O.R.(3d) 450 (Gen. Div.), revd. in part (1996), 27 O.R.(3d) 417 (C.A.), refd to. [para. 23].

Howard v. Martin, [2014] O.A.C. Uned. 270; 2014 ONCA 309, refd to. [para. 26].

Enbridge Gas Distribution Inc. v. Froese, [2013] O.A.C. Uned. 105; 114 O.R.(3d) 636; 2013 ONCA 131, refd to. [para. 26].

Braich (Bankrupt), Re (2007), 250 B.C.A.C. 53; 416 W.A.C. 53; 2007 BCCA 641, refd to. [para. 26].

National Life Assurance Co. of Canada v. Brucefield Manor Ltd., [1999] O.J. No. 1175 (C.A.), refd to. [para. 31].

Regal Constellation Hotel Ltd. (Receivership), Re (2004), 188 O.A.C. 97; 71 O.R.(3d) 355 (C.A.), refd to. [para. 32].

Impact Tool & Mould Inc. v. Impact Tool & Mould Inc. (Bankrupt) et al., [2013] O.A.C. Uned. 574; 2013 ONCA 697, refd to. [para. 36].

Dabbs v. Sun Life Assurance Co. of Canada (1998), 113 O.A.C. 307; 41 O.R.(3d) 97 (C.A.), leave to appeal refused (1998), 235 N.R. 390; 118 O.A.C. 399 (S.C.C.), refd to. [para. 36].

Moore (Bankrupt), Re (2013), 314 O.A.C. 153; 118 O.R.(3d) 161; 2013 ONCA 769, refd to. [para. 36].

Superintendent of Bankruptcy v. 407 ETR Concession Co. - see Moore (Bankrupt), Re.

Business Development Bank of Canada v. Pine Tree Resorts Inc. et al. (2013), 307 O.A.C. 1; 115 O.R.(3d) 617; 2013 ONCA 282, refd to. [para. 41].

Plancher Héritage ltée/Heritage Flooring Ltd. (Bankrupt), Re (2008), 336 N.B.R.(2d) 332; 862 A.P.R. 332; 299 D.L.R.(4th) 727; 2008 NBCA 69, refd to. [para. 41].

Royal Bank of Canada v. Profor Kedgwick Ltd. - see Plancher Héritage ltée/Heritage Flooring Ltd. (Bankrupt), Re.

Authors and Works Noticed:

Brown, Donald J.M., Civil Appeals (2013) (Looseleaf), vol. 1, para. 2:1120 [para. 36].

Houlden, Lloyd W., Morawetz, Geoffrey B., and Sarra, Janis P., Bankruptcy and Insolvency Law of Canada (4th Ed. 2009) (2013 Looseleaf Update, Release 5), vol. 3, p. 7-106 [para. 36].

Counsel:

Jason A. Schmidt, for the moving party;

David P. Preger and Michael J. Brzezinski, for the responding party, SF Partners Inc. (court-appointed receiver for 1713515 Ontario Limited);

Amy Lok, for responding party, Ontario Wealth Management Corporation.

This motion was heard in Chambers, on April 10, 2014, by Strathy, J.A., of the Ontario Court of Appeal, who delivered the following judgment on June 26, 2014.