Fred Myers

The respondent brought a motion before a single judge of the Divisional Court to quash the applicant's appeal on the grounds of mootness and estoppel.

The underlying appeal concerned the applicant's standing to challenge the respondent's election to satisfy debenture obligations by issuing shares.

The single judge concluded that the issues raised on the motion to quash were intertwined with the merits of the appeal and potential prejudice to the parties.

Pursuant to section 21(4) of the Courts of Justice Act and Rule 61.16(2.1), the judge adjourned the motion to be heard by the full panel of the Divisional Court hearing the appeal.

The applicant held debentures issued by the respondent and applied for an oppression remedy under the Business Corporations Act to prevent the respondent from converting the debentures to common shares.

The application judge dismissed the application, finding the applicant lacked standing under the trust indenture.

The applicant appealed to the Court of Appeal.

The respondent brought a motion to quash the appeal, arguing jurisdiction lay with the Divisional Court.

The Court of Appeal granted the motion, holding that the dismissal of the oppression application was an order made under the Act, and therefore the appeal must be heard by the Divisional Court.