Coast Operations of Canada Ltd. (Trustee of) vv. Ottawa Credit Exchange, Ltd.
Because the trial judge accepted the respondent's evidence and found there was no intention to form a debt, the appellate court will not disturb that factual finding; accordingly the appeal fails on the merits and is only allowed to reduce the costs award from solicitor and client to party and party (partial...
Source-derived case information.
- Citation
- C36010
- Parties
- Appellant: KPMG Inc., as Trustee in Bankruptcy for the Estate of Coast Operations of Canada Ltd.; Respondent: Ottawa Credit Exchange, Limited
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 15 February 2002
- Procedural Posture
- Collection / Appeal Court of Appeal (heard February 11, 2002)
- Outcome
- Appeal allowed in part on costs and otherwise dismissed.
- Legal Topics
- Intention to Create Debt, Transfer of Money, Accounting Records, Scale of Costs, Solicitor and Client Costs, Party and Party Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
KPMG Inc., as Trustee in Bankruptcy for the Estate of Coast Operations of Canada Ltd.
Appellant
Ottawa Credit Exchange, Limited
Respondent
Procedural Posture
Collection / Appeal Court of Appeal (heard February 11, 2002)
Legal Issues
- 1 Whether a debt was created or could be inferred from the transfer of money and accounting entries
- 2 Whether the trial judge erred in accepting the respondent's evidence and finding no intention to form a debt
- 3 Whether solicitor and client costs were justified
Ratio Decidendi
Because the trial judge accepted the respondent's evidence and found there was no intention to form a debt, the appellate court will not disturb that factual finding; accordingly the appeal fails on the merits and is only allowed to reduce the costs award from solicitor and client to party and party (partial indemnity).
Court Disposition
Appeal allowed in part on costs and otherwise dismissed.
Orders
- Leave to appeal costs is granted.
- Appeal allowed to the extent of substituting party and party costs to be assessed in place of solicitor and client costs.
Full Case Text
Judgment text and source record
1 paragraphs
Coast Operations of Canada Ltd. (Trustee of) vv. Ottawa Credit Exchange, Ltd. Collection Decisions of the Court of Appeal Date 2002-02-15 Docket numbers C36010 Judges Finlayson, George Duncan; Carthy, James Joseph; Cronk, Eleanore Ann Subject Civil Decision Content DATE: 20020215 DOCKET:C36010 COURT OF APPEAL FOR ONTARIO RE: KPMG INC., as Trustee in Bankruptcy for the Estate of COAST OPERATIONS OF CANADA LTD. (Plaintiff (Appellant)) – and – OTTAWA CREDIT EXCHANGE, LIMITED (Defendant (Respondent)) BEFORE: FINLAYSON, CARTHY AND CRONK JJ.A. COUNSEL: Andrew J.F. Lenz For the appellant James L. MacGillivray For the respondent HEARD: February 11, 2002 RELEASED ORALLY: February 11, 2002 On appeal from the judgment of Justice D. Power dated February 19, 2001. ENDORSEMENT [1] The trial judge found as a fact that there was no intention to form a debt. In doing so he accepted the evidence of the respondent’s witnesses. The appellant says that this does not deal with the debt to be inferred from the transfer of the money, and the legal effect of such transactions. Such a legal result would still require a factual framework and, here, the facts are all found in favour of the defendant, including an explanation for the questionable book entries. [2] If we cannot disturb the ultimate finding and if there is no debt then the other issues raised are redundant to the appeal. [3] As to the appeal on the scale of costs, the trial judge observed in the body of his reasons that the trustee was justified in being suspicious of the altered accounting records. The trustee might have been criticized for failing to pursue such a claim and we do not see this case as justifying solicitor and client costs. [4] Leave to appeal costs is granted and the appeal is allowed to the extent of inserting a provision for party and party costs to be assessed in place of the present provision for solicitor and client costs. Otherwise the appeal is dismissed. [5] The respondent is entitled to costs of the appeal on the partial indemnity scale and we have the submission of their bill of costs. We have reviewed the respondent’s bill of costs and award costs in the amount of $12,300 inclusive of today’s counsel fee, plus disbursements as set out in the bill, plus GST to be calculated. “G.D. Finlayson J.A.” “J.J. Carthy J.A.” “E.A. Cronk J.A.”