ontario superior court of justice commercial … · court file no. cv-14-10680-00cl ontario...

Court File No. CV-14-10680-00CL

ONTARIOSUPERIOR COURT OF JUSTICE

COMMERCIAL LIST

BETWEEN:

ROYAL BANK OF CANADA

Applicant

- and -

GOUDAS FOOD PRODUCTS AND INVESTMENTS LIMITED

Respondent

AND

Court File No. CV-16-126149-00

BETWEEN:


PETER SPYROS GOUDAS and PATRICIA GOUDAS

Plaintiffs

- and

BLVD HOLDINGS INC., JOHN G. SIMMONDS, A.C. SIMMONDS AND SONS INC.,and THE ROYAL BANK OF CANADA

Defendants

AND

2



BETWEEN:

PETER SPYROS GOUDAS and GOUDAS FOOD REALTY INC.

Plaintiffs

- and -

ROYAL BANK OF CANADA, DUFF & PHELPS CANADA RESTRUCTURING LIMITED, JOHN GRAHAM SIMMONDS, A.C. SIMMONDS AND SONS INC., BLVD.

HOLDINGS INC., MOZAIC FOODS INC., MOZAIC BRANDS CORP., BREADKO NATIONAL BAKING LTD., FOODCRAFTERS GROUP, FOOD CRAFTERS

NATIONAL INC., VERTILITY CORPORATION, VERTILITY WASTE SOLUTIONS AND EQUIPMENT INC., VERTILITY GROUP OF COMPANIES CORPORATION,

CARINO & LALLY DEVELOPMENTS INC., DIRECT REEFER SERVICES INC., A. & F. CONVEYORS LIMITED, AFI LIMITED, BIOSEC ENVIRO INC., 2409439

ONTARIO INC. doing business as WASAGA SANDS GOLF CLUB also known as WASAGA SANDS GOLF & COUNTRY CLUB, 2072906 ONTARIO LIMITED doing

business as PLASTICAP, 2293900 ONTARIO INC. doing business as PLASTICAP, RX100 PRODUCTS INC., TIFCO FOODS INC., GOUDAS FOOD PRODUCTS AND

INVESTMENTS LIMITED, CARRIER FREE LLC., BAYWOOD HOMES PARTNERSHIP, CORNER WORLD DEVELOPMENTS INC., GOLDEN FOOD AND

MANUFACTURE LIMITED, CARRIE J. WEILER, IAN BRADLEY, KEN ADLEBERG, HENRY KLOEPPER, CHANDRA PANCHAL, TED DANIEL, DONALD FENTON,

JASON WILLIAMS, MICHAEL GRIECO, DEBORAH SIMMONDS, TYRONEGANPAUL and JOHN MPARDAKIS

Defendants

MOTION RECORD(returnable May 16, 2017)

3

Date: May 5, 2017 AIRD & BERLIS LLP Barristers and Solicitors Brookfield Place 181 Bay Street, Suite 1800 Toronto, ON M5J 2T9

Steven L. Graff (LSUC # 31871V)Tel: (416) 865-7726 Fax: (416) 863-1515 Email: seraffi®airdberlis.com

Mark van Zandvoort (LSUC # 59120U) Tel: (416) 865-4742 Fax: (416) 863-1515 Email: mvanzandvoortf®airdberlis.com

Jeremy Nemers (LSUC # 66410Q)Tel: (416) 865-3082 Fax: (416) 863-1515 Email: i nemerst® airdberli s. com

Lawyers for KSV Kofman Inc., in its capacity as the Court-appointed receiver and receiver and manager of Goudas Food Products and Investments Limited

TO: ATTACHED SERVICE LIST

INDEX

Document Tab

Notice of Motion 1

Service List 2

Court File No. CV-14-10680-00CL


COMMERCIAL LIST

BETWEEN:

ROYAL BANK OF CANADA

Applicant

- and -

GOUDAS FOOD PRODUCTS AND INVESTMENTS LIMITED

Respondent

AND



BETWEEN:

PETER SPYROS GOUDAS and PATRICIA GOUDAS

Plaintiffs

- and -

BLYD HOLDINGS INC., JOHN G. SIMMONDS, A.C. SIMMONDS AND SONS INC.,and THE ROYAL BANK OF CANADA

Defendants

AND

2



BETWEEN:

PETER SPYROS GOUDAS and GOUDAS FOOD REALTY INC.

Plaintiffs

- and -

ROYAL BANK OF CANADA, DUFF & PHELPS CANADA RESTRUCTURING LIMITED, JOHN GRAHAM SIMMONDS, A.C. SIMMONDS AND SONS INC., BLVD.

HOLDINGS INC., MOZAIC FOODS INC., MOZAIC BRANDS CORP., BREADKO NATIONAL BAKING LTD., FOODCRAFTERS GROUP, FOOD CRAFTERS

NATIONAL INC., VERTILITY CORPORATION, VERTILITY WASTE SOLUTIONS AND EQUIPMENT INC., VERTILITY GROUP OF COMPANIES CORPORATION,

CARINO & LALLY DEVELOPMENTS INC., DIRECT REEFER SERVICES INC., A. & F. CONVEYORS LIMITED, AFI LIMITED, BIOSEC ENVIRO INC., 2409439

ONTARIO INC. doing business as WASAGA SANDS GOLF CLUB also known as WASAGA SANDS GOLF & COUNTRY CLUB, 2072906 ONTARIO LIMITED doing

business as PLASTICAP, 2293900 ONTARIO INC. doing business as PLASTICAP, RX100 PRODUCTS INC., TIFCO FOODS INC., GOUDAS FOOD PRODUCTS AND

INVESTMENTS LIMITED, CARRIER FREE LLC., BAYWOOD HOMES PARTNERSHIP, CORNER WORLD DEVELOPMENTS INC., GOLDEN FOOD AND

MANUFACTURE LIMITED, CARRIE J. WEILER, IAN BRADLEY, KEN ADLEBERG, HENRY KLOEPPER, CHANDRA PANCHAL, TED DANIEL, DONALD FENTON,

JASON WILLIAMS, MICHAEL GRIECO, DEBORAH SIMMONDS, TYRONEGANPAUL and JOHN MPARDAKIS

Defendants

NOTICE OF MOTION(returnable May 16,2017)

KSV Kofman Inc. (“KSV”), in its capacity as the Court-appointed receiver and receiver

and manager (in such capacities, the “Receiver”), without security, of all the assets, undertakings

and properties of Goudas Food Products and Investments Limited (the “Debtor”), will make a

motion to a judge presiding over the Commercial List on Tuesday, May 16, 2017 at 10:00 a.m.,

3

or as soon after that time as the motion can be heard, at 330 University Avenue, Toronto,

Ontario.

PROPOSED METHOD OF HEARING: the motion is to be heard orally.

THE MOTION IS FOR:

(a) if necessary, an Order abridging the time for service and filing of this notice of

motion and the motion record or, in the alternative, dispensing with same;

(b) in connection with or independent from the motion brought by Royal Bank of

Canada (“RBC”) to transfer the action styled Peter Spyros Goudas and Goudas

Food Realty Inc. v. Royal Bank of Canada et al., Court File No. CV-17-129989

00 (the “Second Action”) to the Ontario Superior Court of Justice (Commercial

List) (the “Commercial List Court”), an Order immediately dismissing the

Second Action as against the Receiver, KSV, D&P (as defined herein), DPCR (as

defined herein) and the Debtor and/or, as applicable, declaring the Second Action

to be a nullity as against the Receiver, KSV, D&P, DPCR and the Debtor;

(c) in the alternative, an Order extending beyond May 16, 2017 the provision in the

Endorsement of the Honourable Madam Justice Conway made April 4, 2017 (the

“April 2017 Endorsement”) that prohibits any step from being taken to note the

Receiver, KSV, D&P, DPCR or the Debtor in default in the Second Action;

(d) costs, jointly and severally, against Peter Spyros Goudas (“Peter”) and Goudas

Food Realty Inc. (together with Peter, the “Plaintiffs”); and

(e) such further and other relief as counsel may advise and this Court may permit.

THE GROUNDS FOR THE MOTION ARE:

(a) Peter is a former principal of the Debtor;

4

(b) pursuant to an Order of the Honourable Mr. Justice Penny of the Commercial List

Court dated September 16, 2014 (the “Receivership Order”), Duff & Phelps

Canada Restructuring Inc. (“D&P”) was appointed as receiver and receiver and

manager, without security, of all the assets, undertakings and properties of the

Debtor, and the Debtor was assigned into bankruptcy;

(c) as a result of the amalgamation of KSV and D&P, and pursuant to the

Substitution Order of the Honourable Mr. Justice Hainey of the Commercial List

Court made July 10, 2015 (the “Substitution Order”), KSV was substituted in

place of D&P as the Receiver effective June 30, 2015;

(d) the Substitution Order also provides, amongst other things, that KSV (and its legal

counsel and representatives, as applicable) will have all the rights, benefits,

protections and obligations originally granted to D&P as the Receiver pursuant to

the Receivership Order or any subsequent Order, contract or agreement in the

receivership proceedings of the Debtor (the “Receivership Proceedings”);

(e) the Receivership Order expressly prohibits any Proceeding (as defined in the

Receivership Order) from being commenced or continued against or in respect of

the Receiver, the Debtor or the Property (as defined in the Receivership Order)

without the written consent of the Receiver or with leave of the Commercial List

Court (collectively, the “Stay of Proceedings”);

(f) pursuant to Orders of the Commercial List Court made February 3, 2015, May 12,

2015 and June 29, 2015, the Commercial List Court approved, amongst other

things, the Receiver’s reports to the Commercial List Court (the “Reports”) and

the actions of the Receiver described therein;

(g) in breach of the Receivership Order, the Plaintiffs purported to commence the

Second Action against the Debtor and Duff & Phelps Canada Restructuring

Limited (“DPCR”) (which the Second Action describes as the Receiver), without

seeking written consent of the Receiver or leave of the Commercial List Court;

5

(h) upon learning of the Second Action, counsel for the Receiver wrote to Peter

(being the only address for the Plaintiffs reflected in the Second Action) on March

15, 2017 to, amongst other things: (1) remind him of the Stay of Proceedings and

the correct identity of the Receiver; (2) confirm that the Receiver was not aware

of any efforts having been made to seek its written consent or leave of the

Commercial List Court to bring the Second Action; (3) advise that the Receiver

did not and would not consent to the Second Action or any similar Proceeding;

and (4) advise that, under the circumstances, the Receiver would be scheduling an

appointment with the Commercial List Court and seeking costs against the

Plaintiffs unless they discontinue the Second Action as against DPCR (without

naming D&P or KSV as a replacement defendant) and provide the Receiver of

written evidence of same by no later than March 24, 2017;

(i) not having received any response from the Plaintiffs, counsel for the Receiver

wrote a second time on March 27, 2017 to advise, amongst other things, that the

Receiver had scheduled an appointment with the Commercial List Court on April

4, 2017 (the “April Appointment”);

(j) meanwhile, on March 20, 2017 and March 29, 2017, counsel for RBC also wrote

to the Plaintiffs to advise, amongst other things, that RBC would be appearing at

the April Appointment to request that the Second Action and a related earlier

action to which neither the Receiver nor the Debtor is a named party (collectively,

the “Actions”) be transferred to the Commercial List Court for the purpose of

having the Commercial List Court stay, dismiss or otherwise assume jurisdiction

of the Actions;

(k) as reflected in the April 2017 Endorsement, Peter appeared at the April

Appointment and opposed the transfer of the Actions, and a motion was therefore

scheduled for May 16, 2017 (the “May Hearing”) with the proviso that no steps

be taken to note the defendants in the Second Action in default until the May

Hearing;

6

(l) RBC has since served a fulsome motion record dated April 27, 2017 in respect of

the May Hearing (the “RBC Motion Record”);

(m) as set out in the appendices to the RBC Motion Record, costs have previously

been awarded against Peter in the Receivership Proceedings for, amongst other

things, and in the words of the Honourable Mr. Justice Wilton-Siegel, having

“demonstrated an unacceptable lack of respect for the judicial process from

which he sought relief” and it is submitted that Peter’s actions in respect to the

Second Action reflect such continued behaviour;

(n) the other grounds set out in the RBC Motion Record, including, without

limitation, the Reports and related material in respect of the Receivership

Proceedings;

(o) section 243 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended;

(p) section 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43, as amended;

(q) rules 1.04, 2.03, 3.02, 37, 41 and 57 of the Rules of Civil Procedure, R.R.O. 1990,

Reg. 194, as amended; and

(r) such further and other grounds as counsel may advise and this Court may permit.

2. THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the

motion:

(a) the RBC Motion Record, including, without limitation, the Reports and related

material in respect of the Receivership Proceedings; and

(b) such further and other material as counsel may submit and this Court may permit.

7

Date: May 5, 2017AIRD & BERLIS LLPBarristers and Solicitors Brookfield Place 181 Bay Street, Suite 1800 Toronto, ON M5J 2T9

Steven L. Graff (LSUC # 31871V)Tel: (416) 865-7726 Fax:(416) 863-1515 Email: [email protected]

Mark van Zandvoort (LSUC # 59120U)Tel: (416) 865-4742 Fax: (416) 863-1515 Email: [email protected]

Jeremy Nemers (LSUC # 66410Q)Tel: (416) 865-3082 Fax: (416) 863-1515 Email: [email protected]

Lawyers for KSV Kofman Inc., in its capacity as the Court-appointed receiver and receiver and manager of Goudas Food Products and Investments Limited

TO ATTACHED SERVICE LIST

mailto:[email protected]



m

o00VOo

>u6zJO

Eti=3oo

ooIGVVO(NVO

1>o6Zj>EsoU

"a4)

503o5

oa

hJ«

+2

C,<L>4-<<DQ

noCc3

55

03•w4)

!Z3

oo

1p<t/305 toH.lrv; o3o< pH

SERVICE LIST

TO:

AND TO:

AND TO:

AND TO:

KSV KOFMAN INC.150 King St. W., Suite 2308 Toronto, ON M5H 1J9

Attention: Bobby Kofman / Adam ZeldinTel: 416.932.6228/416.932.6016Email: [email protected] / [email protected]

Court-appointed receiver and receiver and manager

AIRD & BERLIS LLP Brookfield Place 181 Bay Street, Suite 1800 Toronto, ON M5J 2T9

Attention:Tel:Fax:Email:

Steven L. Graff / Ian Aversa / Jeremy Nemers 416.865.7726 / 416.865,3082 / 416.865.7724 [email protected] / [email protected] / [email protected]

Lawyers for KSV Kofman Inc.

GOUDAS FOOD PRODUCTS AND INVESTMENTS LIMITED241 Snidercroft Road Concord, ON L4K 2J8

Attention: John SimmondsEmail: [email protected]

KYLE & van der STEEN LLP 416 North Service Road East, Suite 300 Oakville, ON L6H 5R2


Robert W. [email protected]

Lawyers for Goudas Food Products and Investments Limited








-2-

AND TO:

AND TO:

AND TO:

KYLE & ASSOCIATES416 North Service Road East, Suite 300Oakville, ON L6H 5R2

Attention: Robert W. WilsonTel: 905.845.5000Fax: 905.845.5800Email: [email protected]

Lawyers for , A.C. Simmonds and Sons Inc., Mozaic Foods Inc., Mozaic Brands Corp., Vertility Corporation, Vertility Oil & Gas Inc., Fertility Plas-Techs Inc., Fertility Waste Solutions and Equipment Inc., Fertility Group of Companies Corporation, Carino & Lally Developments Inc., Direct Reefer Services Inc., A. & F. Conveyors Limited, AFI Limited, 2409439 Ontario Inc. doing business as Wasaga Sands Golf Club also known as Wasaga Sands Golf & Country Club, RX100 Products Inc., and Tifco Foods Inc.

WILSON VUKELICH LLP60 Columbia Way, Suite 710 Markham, ON L3R 0C9

Attention: Jeff GoldenthalTel: 905.940.8744Fax: 905.940.8785Email: [email protected]

Lawyers for Peter Goudas and Goudas Food Products Co. Ltd.

OSLER, HOSKIN & HARCOURT LLPP.O. Box 50One First Canadian Place Toronto, ON M5X 1B8

Attention: Shawn T. Irving / Caitlin Fell / Rebecca Hall-McGuire Tel: 416.862.4733 / 416.862.6434 / 416.862.6738Fax: 416.862.6666Email: [email protected] / [email protected] / [email protected]

Lawyers for Royal Bank of Canada






AND TO:

AND TO:

AND TO:

AND TO:

-3 -

MACPHERSON & ASSOCIATES INC. Trustee in Bankruptcy 150 Ferrand Drive, Suite 900 Toronto, ON M3C 3E5

Attention: Jim MacphersonTel: 647.497.9753Email: [email protected]

Trustee for Goudas Food Products and Investments Limited and Breadko National Baking Ltd,

FASKEN MARTINEAU DUMOULIN LLP333 Bay Street, Suite 2400 Bay Adelaide Centre, Box 20 Toronto, ON M5H 2T6


Aubrey Kauffman 416.868.3538 416.364.7813 [email protected]

Lawyers for 562444 Ontario Limited and 562445 Ontario Limited

CASSELS BROCK & BLACKWELL LLP2100 Scotia Plaza 40 King Street West Toronto, ON M5H 3C2

Attention: Robert B. CohenTel: 416.869.5425Fax: 416.350.6929Email: [email protected]

Lawyers for Menkes GTA Industrial Holdings Inc.

CHAITONS LLP5000 Yonge Street, 10th Floor Toronto, ON M2N 7E9

Ben FrydenbergTel: (416)218-1146Fax: (416)218-1858Email: [email protected]

George BenchetritTel: (416)218-1141Fax: (416)218-1841Email: [email protected]

Lawyers for Business Development Bank of Canada






AND TO:

AND TO:

AND TO:

AND TO:

AND TO:

-4-

LAX O’SULLIVAN SCOTT LISUS LLPCounselSuite 2750, 145 King St. W,Toronto, ON M5H 1J8

Shaun LaubmanTel: (416) 360-8481Fax: (416) 598-3730Email: [email protected]

Andrew WintonTel: (416)644-5342Fax: (416) 598-3730Email: [email protected]

Lawyers for American Rice, Inc. and Riviana Foods Inc.

LOAD KING TRAILER RENTALS420 Rodinea Road Maple, ON L6A 4P5

Attention: Brad McCaugheyEmail: bradmccau@,bellnet.ca

R. GRAHAM PHOENIXLoopstra Nixon LLP Barristers & Solicitors 135 Queens Plate Drive, Suite 600 Toronto, Ontario M9W 6V7

Tel: (416)746-4710Fax: (416) 746-8319Email: [email protected]

Lawyers for Golden Food & Manufacture Ltd.

PALIARE ROLAND ROSENBERG ROTHSTEIN LLP155 Wellington Street West, 35th Floor Toronto, ON M5V 3H1

Tina LieTel: (416) 646-4332Fax: (416)646-4301Email: [email protected]

Lawyers for Tyrone Ganpaul

WELLS FARGO CAPITAL FINANCE CORPORATION40 King Street West, Suite 2500 Toronto, ON M5H 3Y2





-5-

AND TO: CLE LEASING ENTERPRISES LIMITED3390 South Service Road, 2nd level Burlington, ON L7N 3J5

AND TO: HER MAJESTY IN THE RIGHT OF ONTARIO REPRESENTED BY THE MINISTER OF FINANCE200-5 Park Home Avenue North York, ON M2N 5W8

AND TO: FOODCRAFTERS GROUP INC., FOODCRAFTERS GROUP, and FOODCRAFTERS INTERNATIONAL INC.111 Brockhouse Road Toronto, ON M8W 2W8

Tel: (416)251-3663Fax: (416)251-3662

AND TO: BARBARA PARRAVANO 111 Brockhouse Road Toronto, ON M8W 2W8

Email: bnarravanofS),rosers.com

AND TO: PETER SPYROS GOUDAS, PATRICIA GOUDAS and GOUDAS FOOD REALTY INC.77 Cheltenham Avenue Woodbridge, ON L4L 1K6

Email: peterfa),soudasfoods.com

AND TO: JOHN GRAHAM SIMMONDS and A.C. SIMMONDS AND SONS INC.3565 King Road, Suite 102 King City, ON L7B 1M3

AND TO: MOZAIC FOODS INC. and MOZAIC BRANDS CORP.3565 King Road, Suite 102 King City, ON L7B 1M3

AND TO: BREADKO NATIONAL BAKING LTD.6310 Kestrel Road Mississauga, ON L5T 1Z3

-6-

AND TO: VERTILITY CORPORATION,VERTILITY OIL & GAS INC.,VERTILITY PLAS-TECHS INC.,VERTILITY WASTE SOLUTIONS AND EQUIPMENT INC., and VERTILITY GROUP OF COMPANIES CORPORATION 3565 King Road, Suite 102 King City, ON L7B 1M3

AND TO: CARINO & LALLY DEVELOPMENTS INC.6 Dor-Ann Drive, Frankford, ON KOK 2C0 c/o 565 King Road, Suite 102 King City, ON L7B 1M3

AND TO: DIRECT REEFER SERVICES INC.7311 Kimbel Street Mississauga, ON L4T 3M6

AND TO: A. & F. CONVEYORS LIMITED180 Healey Road Bolton, ON L7E5B1

AND TO: AFI LIMITED188 Healey Road Bolton, ON L7E5B1

AND TO: BIOSEC ENVIRO INC.490 York Road, Building D Guelph, ON N1E 6V1

AND TO: 2409439 ONTARIO INC. doing business as WASAGA SANDS GOLF CLUB also known as WASAGA SANDS GOLF & COUNTRY CLUB131 Old Mosley Street Wasaga Beach, ON L9Z 2J5

AND TO: 2072906 ONTARIO LIMITED and 2293900 ONTARIO INC. both doing business as PLASTICAP177 Crosby Avenue Richmond Hill, ON L4C 2R3

AND TO: RX100 PRODUCTS INC.3565 King Road, Suite 102 King City, ON L7B 1M3

AND TO: TIFCO FOODS INC.3925 Steeles Avenue East, Suite #6 Brampton, ON L6T 5W5

AND TO: GOLDEN FOOD AND MANUFACTURE LIMITED241 Snidercroft Road Concord, ON L4K 2S2

AND TO: CARRIER FREE LLC (address unknown)

-7-

AND TO: BAYWOOD HOMES PARTNERSHIP& CORNER WORLD DEVELOPMENTS INC. c/o MarshallZehr Group, Suite 206 465 Phillip Street Waterloo, ON N2L 6C7

AND TO: CARRIE J. WEILER (address unknown)

AND TO: IAN BRADLEY (address unknown)

AND TO: KEN ADLEBERG (address unknown)

AND TO: HENRY KLOEPPER (address unknown)

AND TO: CHANDRA PANCHAL (address unknown)

AND TO: TED DANIEL (address unknown)

AND TO: DONALD FENTON (address unknown)

AND TO: JASON WILLIAMS (address unknown)

AND TO: MICHAEL GRIECO (address unknown)

AND TO: DEBORAH SIMMONDS (address unknown)

AND TO: TYRONE GANPAUL (address unknown)

AND TO: JOHN MPARDAKIS (address unknown)

Email Service:

[email protected]: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected];[email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected]

29222484.1























oooooovoo

>Oo£JDEt:ooCJ

n o P o-Ow <L>

-oPSc3

OOOV

voCN

>UoZEt:poO

u5mO59o 2 w §P'S> <«►J uP5 Q

TDC

ontario superior court of justice commercial … · court file no. cv-14-10680-00cl ontario...

Documents