DATE: 20041216

DOCKET: M32003

COURT OF APPEAL FOR ONTARIO

RE:

IN THE MATTER OF THE COMPANIES’ CREDITORS ARRANGEMENT ACT, R.S.C. 1985, c. C-36, as amended

AND IN THE MATTER OF A PLAN OF COMPROMISE OR ARRANGEMENT OF 1078385 ONTARIO LIMITED, ISLAND COVE DEVELOPMENT LTD., 1128625 ONTARIO LIMITED, 1362317 ONTARIO LIMITED, 1164801 ONTARIO LIMITED, 1099164 ONTARIO LIMITED, O.B. PROPERTIES CANADA LTD., JAM SOUND SPECIALISTS CANADA LTD., and O.B. PROPERTIES LIMITED PARTNERSHIP (Applicants)

BEFORE:

SIMMONS J.A. (In Chambers)

COUNSEL:

William V. Sasso and Evlynn Lipton

for the moving party, Randy Oram

Richard B. Jones

for Amico Contracting & Engineering (1992) Inc., Amicone Design Build Inc., Amicone Holdings Limited and Boblo Property Finance Inc.

John D. Leslie and Angelo D’Alessandro

for Monitor G.S. MacLeod & Associates Inc., as Receiver and Manager

and for New Century Bank, assignee Pramco, IL, LLC and Bank One (Michigan)

HEARD & RELEASED ORALLY:

December 14, 2004

Motion to transfer to a panel of this court the motion for leave to appeal from the orders made by Justice Joseph G. Quinn of the Superior Court of Justice dated November 22, 2004 and November 25, 2004.

E N D O R S E M E N T

[1] Amico Contracting & Engineering (1992) Inc., supported by the Monitor, requests that I exercise my jurisdiction under s. 7(4) of the Courts of Justice Act, R.S.O. 1990, c. C.43, to transfer this leave motion to a panel of this court. In essence, Amico contends that the procedure set out in rule 61.03.1 of the Rules Civil Procedure, R.R.O. 1990, Reg. 194, is the preferable procedure for dealing with this matter for the following reasons:

i) the order the moving party seeks to appeal is a final order that has been implemented by means of a vesting order. The matter therefore has significant and far-reaching implications for all of the affected parties;

ii) rule 61.03.1 sets out timelines and procedures that address appropriately the exigencies of a leave application. The motion procedure adopted by the moving party does not provide similar timelines and procedural protections. Amico will be better able to address the significant issues raised by this motion if the rule 61.03.1 procedure is followed;

iii) there is no urgency in this matter requiring that the leave motion be dealt with by motion to a single judge; and

iv) the rule 61.03.1 procedure would bring finality to the leave motion, whereas any order I make will be subject to review.

[2] I am not persuaded that I should make the order Amico requests. Section 13 of the Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, provides the moving party with the procedural option of bringing a leave motion to a single judge. Amico has provided no authority indicating a distinction in procedure under s. 13 for seeking leave to appeal final orders versus interlocutory orders. Amico and the Monitor have already indicated they are ready to proceed today if the requested order is not granted. I will give them a further opportunity to seek a short adjournment to better prepare in light of my decision.

[3] In contrast to Amico, absent an undertaking from Amico that the status quo will be maintained, the moving party views this matter as being of some urgency. Amico is unwilling to give the undertaking the moving party requests. In the circumstances, I see no reason to compel the moving party to adopt a procedure that he did not choose.

[4] The preliminary request to transfer this leave motion to a panel of this court is therefore dismissed.

“Janet Simmons J.A.”