Summit Glen Waterloo/2000 Developments Inc. (Bankrupt), Re

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Cronk, Pepall and Lauwers, JJ.A.
• Citation: (2016), 351 O.A.C. 277 (CA),2016 ONCA 405
• Date: 30 May 2016
• Subject Matter: BANKRUPTCY

Summit Glen Waterloo/2000 Dev., Re (2016), 351 O.A.C. 277 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. MY.026

In the Matter of the Bankruptcy of Summit Glen Waterloo/2000 Developments Inc., of the City of Toronto, in the Province of Ontario

(C58356; 2016 ONCA 405)

Indexed As: Summit Glen Waterloo/2000 Developments Inc. (Bankrupt), Re

Ontario Court of Appeal

Cronk, Pepall and Lauwers, JJ.A.

May 30, 2016.

Summary:

Summit Glen Waterloo/2000 Developments Inc. was placed into receivership on December 18, 2008, and adjudged bankrupt on June 28, 2010. A. Farber & Partners Inc. (Farber), in its capacity as the trustee in bankruptcy of both Annopol Holdings Ltd. (Annopol) and Summit Glen Group of Companies Inc. (SG Group), asserted claims against SG Waterloo. Claims were also advanced by Montor Business Corporation, Goldfinger and 1830094 Ontario Ltd. (183) (a company controlled by Goldfinger). The claims were heard in a hybrid trial, together with the subject matter of two other court files.

The Ontario Superior Court, in a decision reported at [2014] O.T.C. Uned. 756, determined the issues. Farbar appealed the disallowance of some of the claims that it had advanced. With respect to Annopol's claims, Farber asserted that the trial judge erred (i) in awarding Annopol $420,000 instead of $457,600, and (iii) ordering interest on the entire sum from the date of Annopol's last proven loan advance, instead of from the dates of its individual loan advances. With respect to SG Groups claims, Farber asserted that the judge erred (i) by requiring that it establish with certainty that SG Group paid the sums of $109,780.13 and $104,855 to suppliers on behalf of SG Waterloo (the operating cost claims), and (ii) by concluding that the Interest Act was inapplicable because Farber's claim on behalf of SG Group sounded in unjust enrichment and was not based on a loan agreement, and awarding interest under the Courts of Justice Act. 183 cross-appealed from the disallowance of its claim.

The Ontario Court of Appeal allowed Farbar's appeal respecting Annopol's claim and varied the judgment to allow Annopol's unsecured claim against SG Waterloo for $457,600 and interest to be calculated by the parties from the date of each advance by Annopol to SG Waterloo. The court dismissed Farber's appeal respecting SG Group's operating cost claims. The trial judge did not apply a standard of certainty. He applied the correct test, but was not persuaded it had been met with respect to either sum. His findings of fact, which supported his conclusion, were both within the province of a trial judge, and reasonable. There was also no basis to disturb his finding that the Interest Act was inapplicable. The court agreed with a concession by Farber that interest did not run after the date of bankruptcy. The court therefore allowed the appeal in part so as to allow interest up to the date of SG Waterloo's receivership. The court dismissed 183's cross-appeal.

Editor's note: For decisions in two companion appeals see 351 O.A.C. 241 and 351 O.A.C. 267.

Bankruptcy - Topic 3634

Creditors - Claims - General - Interest - See paragraphs 12 to 14 and 31 to 33.

Bankruptcy - Topic 3781

Claims provable - Evidence and proof - General - See paragraphs 25 to 30.

Counsel:

Patrick Shea and Brent Arnold, for the appellant/respondent by way of cross-appeal, A. Farber & Partners Inc., as Trustee in Bankruptcy of Annopol Holdings Ltd. and Summit Glen Group of Companies Inc.;

Maurice J. Neirinck and Michael McQuade, for the respondents, Morris Goldfinger and 1830994 Ontario Ltd. and for the appellant by way of cross-appeal, 1830994 Ontario Ltd.

This appeal and cross-appeal were heard on October 14 and 15, 2015, by Cronk, Pepall and Lauwers, JJ.A., of the Ontario Court of Appeal. Pepall, J.A., released the following judgment for the court on May 30, 2016.