Budd v. Gentra Inc. et al. [Indexed as: Budd v. Gentra Inc.]
56 O.R. (3d) 414
[2001] O.J. No. 4476
Docket No. 104/98
Ontario Superior Court of Justice
Divisional Court
Blair R.S.J. and McRae and McWilliam JJ.
October 18, 2001*
- Note: Reasons released on November 16, 2001.
Appeal -- Jurisdiction -- Divisional Court -- Court of Appeal for Ontario appellate court for judge's orders under Canada Business Corporations Act, R.S.C. 1985, c. C-44.
Corporations -- Appeal -- Federal legislation -- Court of Appeal for Ontario appellate court for judge's orders under Canada Business Corporations Act, R.S.C. 1985, c. C-44.
An appeal from a judge's order under the Canada Business Corporations Act is to the Court of Appeal for Ontario, although an appeal from a similar order under the Ontario Business Corporations Act, R.S.O. 1990, c. B.16 would be to the Divisional Court. The Divisional Court is a statutory court, and s. 249 of the Canada Business Corporations Act is clear that appeals are to the Court of Appeal.
APPEAL from an order under the Canada Business Corporations Act, R.S.C. 1985, c. C-44.
Cases referred to Ferguson and Imax Systems Corp., Re (1983), 1983 1646 (ON CA), 43 O.R. (2d) 128, 150 D.L.R. (3d) 718 (C.A.), varg (1982), 1982 3245 (ON SCDC), 38 O.R. (2d) 59, 134 D.L.R. (3d) 519, 28 C.P.C. 290 (Div. Ct.), revg (1980), 12 B.L.R. 209 (Ont. H.C.J.) Statutes referred to Business Corporations Act, R.S.O. 1990, c. B.16 Canada Business Corporations Act, R.S.C. 1985, c. C-44, ss. 2(1), 229, 241(3)(m), 242(4) [as am.], 249
Howard C. Cohen and L. Leslie Dizgun, for appellant. James C. Tory and M. Paul Mitchell, for Gentra. Bernie McGarva and John J. Longo, for Trilon, Arteco et al.
The judgment of the court was delivered by
[1] BLAIR R.S.J. (orally): -- This is an appeal from the order of the Honourable Mr. Justice Farley, dated January 26, 1998 in which he (a) dismissed a motion for an interim award of costs, pursuant to s. 242(4) of the Canada Business Corporations Act, R.S.C. 1985, c. C-44 ("CBCA"), (b) dismissed a motion for the appointment of an inspector under ss. 241(3) (m) and 229 of the CBCA and (c) awarded costs.
[2] The appeal is taken under s. 249 of the CBCA which states as follows:
249(1) An appeal lies to the court of appeal of a province from any order made by a court of that province under this Act.
[3] The question therefore arises whether this appeal lies to the Court of Appeal as opposed to a Divisional Court in this province. Counsel argue that the "Court of Appeal" for purposes of s. 249 of the CBCA in Ontario means the Divisional Court. They rely upon the decision of this court in Re Ferguson and Imax Systems Corp. (1982), 1982 3245 (ON SCDC), 38 O.R. (2d) 59, 134 D.L.R. (3d) 519 (Div. Ct.) in which the central issue addressed was whether or not leave to appeal was required from an interlocutory order under the CBCA.
[4] The Divisional Court ruled in that case that leave was not required, and in the course of his reasons on behalf of the court, Gallaghan J. made the following comments (at p. 60 O.R.):
It was contended by the respondent that this Court has no jurisdiction to entertain this appeal because leave to appeal has not been granted by a judge of the High Court. It is, of course, common ground, that if this were an appeal from an interlocutory order made in proceedings authorized by an Ontario statute, this Court would have jurisdiction only if leave were granted. However, these are proceedings under a federal statute and are governed by the appeal provisions contained in that statute. Section 242 of the Canada Business Corporations Act provides that an appeal lies to the Court of Appeal from any order made by a court under that Act. Section 2(1) [amended 1978-79, c. 11, s. 10(1)] of the Act defines the Court of Appeal as follows:
"court of appeal" means the Court to which an appeal lies from an order of a court.
It is common ground that the Divisional Court is the Court of Appeal for the purposes of that definition.
The problem arises because of the provisions of the Judicature Act, R.S.O. 1980, c. 223, which provide that an appeal from an interlocutory order may only be taken with leave of a judge of the High Court. However, s. 242 of the Canada Business Corporations Act does not restrict the right of appeal in any such way, it grants an absolute right of appeal, from an order. It is therefore, my opinion that this Court does have jurisdiction to hear this appeal. I do not think that an Act of the Legislature of Ontario can derogate from rights of appeal specifically created by a federal statute.
(Italics added)
[5] We note the comment that "[it was] common ground that the Divisional Court is the Court of Appeal for purposes of [the definition in s. 249 of the CBCA]". It appears, therefore, that the issue which is presently before us was presumed and not addressed specifically in Ferguson v. Imax.
[6] With deference to this earlier decision, we are all of the view that the language of s. 249 of the CBCA is clear and that the appeal lies to the Court of Appeal for Ontario and not the Divisional Court under that section.
[7] Resort to the definition of Court of Appeal in s. 2(1) of the CBCA is not helpful. It says: "'court of appeal' means the court to which an appeal lies from an order of a court" [emphasis added]. The definition simply begs the question at issue, namely, what is the court to which an appeal lies from the order in question?
[8] The Divisional Court is a statutory court and has no jurisdiction other than what is given to it by statute. While it may prove anomalous that appeals under the CBCA go to the Court of Appeal whereas appeals from essentially similar orders under the Ontario Business Corporations Act, R.S.O. 1990, c. B.16 go to [the] Divisional Court, the language of s. 249 is clear, in our opinion, and therefore must govern.
[9] We do not find it necessary in the circumstances to determine the question of whether leave to appeal is required. That is a matter for the Court of Appeal to consider. Accordingly, the appeal must be dismissed on jurisdictional grounds.
[10] No order as to costs.
Order accordingly.