superior court of justice - fuller landau · lawyers for canada mortgage and housing corporation...

Court File No.: 17-62183

SUPERIOR COURT OF JUSTICE

B E T W E E N:

TANDIA FINANCIAL CREDIT UNION LIMITED

Applicant

-and-

1322295 ONTARIO LTD.

Respondent

APPLICATION UNDER Subsection 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 Rule 14.05(3)(g) and (h) of the Rules of Civil Procedure

MOTION RECORD OF THE RECEIVER

(Motion returnable October 29, 2019)

October 18, 2019 BAKER & McKENZIE LLP

Barristers and Solicitors

181 Bay Street, Suite 2100

Toronto, ON M5J 2T3

Jonathan D. Cocker (LSO# 40805U)

e: [email protected]

t: 416 865 6908 / f: 416 863 6275

Michael Nowina (LSO #49633O)

Email: [email protected]

Tel.: 416.865.2312 / Fax: 416 863 6275

Lawyers for the Receiver



B E T W E E N:


Applicant

-and-


Respondent

APPLICATION UNDER Subsection 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 Rule 14.05(3)(g) and (h) of the Rules of Civil Procedure

SERVICE LIST

TO: BAKER & MCKENZIE LLP

Brookfield Place


Toronto, ON M5J 2T3



t: 416 865 6908 / f: 416 863 6275



t: 416 865 2312 / f: 416 863 6275


- 2 -

AND TO: DALE & LESSMAN LLP

181 University Avenue, Suite 2100

Toronto, ON M5H 3M7

Nedko M. Petkov (LSO#66429U)


t: 416 369 7821 / f: 416 863 1009

Lawyers for Canada Mortgage and Housing Corporation

AND TO: SIMPSONWIGLE LAW LLP

One Hunter Street East, Suite 200

Hamilton, ON L8N 3W1

David J. Jackson (#AO15656R)


t: 905 528 8411, ext. 304 / f: 905 528 9008

Lawyers for the Applicant

AND TO: FOLKES LAW LPC

21 Queen Street East, Suite 900

Brampton, ON L6W 3P1

Ron E. Folkes


t: 905 457 2118 / f: 905 457 3707

Lawyers for the Respondent

AND TO: White Star Group of Companies

12 Walnut Street South

Hamilton, ON L8N 2K7

Cliff Lloyd


t: 905 962 5129

Lawyers for the Respondent, 1255717 Ontario Ltd. and Marino

Rakovac

- 3 -

AND TO: MEYER WASSENAAR & BANACH LLP

Royal Bank Building

5001 Yonge Street, Suite 301

North York, ON M2N 6P6

Martin G. Banach


t: 416 223 9191 / f: 416 223 9405

Lawyers for Mike Turtel, Marsha Turtel

and Meteric Investments Limited

AND TO: CANADA REVENUE AGENCY C/O DEPARTMENT OF

JUSTICE

The Exchange Tower

130 King Street West, Suite 3400

Toronto, ON M5X 1K6

Diane Winters


t: 416 973 3172 / f: 416 973 0810

Peter Zevenhuizen


t: 416 973 3172 / f: 416 973 0810

AND TO: HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE

OF ONTARIO AS REPRESENTED BY THE MINISTRY OF

FINANCE

33 King Street West, 6th Floor

Oshawa, ON L1H 1A1

Kevin J. O'Hara


t: 905 433 6934 / f: 905 436 4510

AND TO: CITY OF HAMILTON

71 Main Street West

Hamilton, ON L8P 4Y5

Robert Divinski


t: 905 546 2424, ext. 6196

SERVICE LIST EMAILS

[email protected]

[email protected]

[email protected]

[email protected]

[email protected]

[email protected]

[email protected]

[email protected]

[email protected]

[email protected]

[email protected]



B E T W E E N:


Applicant

-and-


Respondent




MOTION RECORD OF THE RECEIVER

(Motion returnable October 29, 2019)

INDEX

TAB NO. DESCRIPTION PAGE

NO.

1 Notice of Motion, returnable October 29, 2019 1

2 Second Report of the Receiver dated October 18, 2019 10

App. A Appointment Order dated August 22, 2017 20

App. B First Report of the Receiver with Appendices I and P 38

App. C Consent Endorsement dated December 11, 2018 183

- 3 -

TAB NO. DESCRIPTION PAGE

NO.

App. D Consent Agreement 188

App. E Ruling dated May 27, 2019 192

App. F Court Orders dated May 27, 2019 198

App. G Pinchin's Soil Vapour Assessment Report dated July 16, 2019 212

App. H Pinchin's Indoor Air Quality Assessment Report dated

September 6, 2019

251

App. I Pinchin's Groundwater Report dated September 10, 2019 287

App. J Stakeholder Update Letter dated September 27, 2019 297

App. K Notice of Termination of Lease dated October 3, 2019 300

App. L Whitestar letter dated October 6, 2019 305

App. M Letter to Whitestar dated October 11, 2019 310



B E T W E E N:


Applicant

-and-


Respondent




NOTICE OF MOTION

(Returnable October 29, 2019)

THE FULLER LANDAU GROUP INC. in its capacity at the Court-appointed receiver

(the "Receiver") without security, of certain property of 1322295 Ontario Ltd. ("132" or the

"Debtor"), including, the real property located at 12 Walnut Street South, Hamilton, ON L8N

2K7 (the "Real Property"), shall make a motion to a Judge of the Court on Tuesday, October

29, 2019 at 10:00 am, or as soon after that time as the motion can be heard at the Court House

at 45 Main Street East, Hamilton, ON.

PROPOSED METHOD OF HEARING: The motion shall be heard orally.

1

- 2 -

THE MOTION IS FOR:

(a) an Order for directions from this Honourable Court, and in particular,

approving the notification of the Ministry of the Environment,

Conservation and Parks ("MECP") and adjacent landowners of the

groundwater contamination originating from the Real Property;

(b) if necessary, abridging the time for service of this Notice of Motion and

Motion Record and dispensing with further service hereof; and

(c) such other relief as this Honourable Court deems just.

THE GROUNDS FOR THE MOTION ARE:

1. On the application of Tandia Financial Credit Union Limited (the "Lender"), this

Honourable Court granted an order dated August 22, 2017 appointing the Receiver on

consent of the Lender and the Debtor (the "Appointment Order") which was effective

as of December 1, 2017.

2. The Real Property is a parcel of land developed with a two-storey commercial building

in downtown Hamilton with residential units in the basement and second floor. The

basement contains one residential unit. The main floor contains office spaces, and the

second floor contains additional residential units.

2

- 3 -

3. The Real Property was occupied by Langley Parisian Ltd. a laundry and dry-cleaning

facility, for approximately 92 years. As has been reported by the Receiver in prior court

reports, the extent of environmental contamination at the Real Property is a significant

and contentious issue.

4. The Receiver engaged an environmental expert, Pinchin Ltd. to prepare reports on

these environmental issues including:

(a) an Indoor Air Quality Assessment dated September 6, 2019; and

(b) an Groundwater Monitoring and Elevation Survey dated September 10,

2019.

5. The Indoor Air Quality Assessment found that tetrachloroethylene (PCE) and

trichloroethylene (TCE) exceeded limits found in the Health Based Indoor Air

Criteria (HBIAC) for residential land use in a non-potable groundwater scenario at

several indoor air sampling locations, and subsurface vapours have the potential to

affect indoor air quality through their migration into the overlying building.

6. The Groundwater Monitoring and Elevation Survey concludes that the groundwater

flow is toward the north-northeast (i.e. towards Lake Ontario).

3

- 4 -

7. In light of these reports, the Receiver has notified all tenants that they must vacate the

premises at the latest by February 29, 2020, and is also of the view that it must report to

MECP pursuant to the provisions of Ontario's Environmental Protection Act (EPA) and

should also report the issue to adjacent landowners.

8. The Receiver, while being of the view that it must notify, is also faced with the view of

the Debtor, 1255717 Ontario Ltd. and Marino Rakovac whose counsel has advised that

notification is premature and that his clients will be seeking the discharge of the

Receiver.

9. The Receiver is of the view that a motion for directions on notice to all interested

parties will allow all such parties to put forward their views regarding the intended

notification of the environmental issues.

10. The Receiver therefore seeks the advice and direction of this Honourable Court as

to whether in light of the information now known to the Receiver, the obligation to

notify the MECP has been triggered, and as such, the Receiver should notify the

MECP and adjacent landowners.

11. Section 249 and 250 of the Bankruptcy and Insolvency Act, Rules 3.02 and 37 of the

Rules of Civil Procedure.

4

- 5 -

12. Such further and other materials as counsel may submit and this Honourable Court

may consider.

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

motion:

(a) Second Report of the Receiver dated October 18, 2019 and the

appendices thereto; and

(b) such further and other material as counsel may advise and this

Honourable Court may permit.

October 18, 2019 BAKER & MCKENZIE LLP

Brookfield Place


Toronto, ON M5J 2T3



t: 416 865 6908 / f: 416 863 6275



t: 416 865 2312 / f: 416 863 6275


5

- 6 -

TO: DALE & LESSMAN LLP

181 University Avenue, Suite 2100

Toronto, ON M5H 3M7

Nedko M. Petkov (LSO#66429U)


t: 416 369 7821 / f: 416 863 1009

Lawyers for Canada Mortgage and Housing Corporation

AND TO: SIMPSONWIGLE LAW LLP

One Hunter Street East, Suite 200

Hamilton, ON L8N 3W1

David J. Jackson (#AO15656R)


t: 905 528 8411, ext. 304 / f: 905 528 9008

Lawyers for the Applicant

AND TO: FOLKES LAW LPC

21 Queen Street East, Suite 900

Brampton, ON L6W 3P1

Ron E. Folkes


t: 905 457 2118 / f: 905 457 3707

Lawyers for the Respondent

AND TO: White Star Group of Companies

12 Walnut Street South

Hamilton, ON L8N 2K7

Cliff Lloyd


t: 905 962 5129

Lawyers for the Respondent, 1255717 Ontario Ltd. and Marino

Rakovac

6

- 7 -

AND TO: MEYER WASSENAAR & BANACH LLP

Royal Bank Building

5001 Yonge Street, Suite 301

North York, ON M2N 6P6

Martin G. Banach


t: 416 223 9191 / f: 416 223 9405

Lawyers for Mike Turtel, Marsha Turtel

and Meteric Investments Limited

AND TO: CANADA REVENUE AGENCY C/O DEPARTMENT OF

JUSTICE

The Exchange Tower

130 King Street West, Suite 3400

Toronto, ON M5X 1K6

Diane Winters


t: 416 973 3172 / f: 416 973 0810

Peter Zevenhuizen


t: 416 973 3172 / f: 416 973 0810

AND TO: HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE

OF ONTARIO AS REPRESENTED BY THE MINISTRY OF

FINANCE

33 King Street West, 6th Floor

Oshawa, ON L1H 1A1

Kevin J. O'Hara


t: 905 433 6934 / f: 905 436 4510

7

- 8 -

AND TO: CITY OF HAMILTON

71 Main Street West

Hamilton, ON L8P 4Y5

Robert Divinski


t: 905 546 2424, ext. 6196

8

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Appendix A

Appendix "A"20

1

Appendix B

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