COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Prime Real Estate Holdings Corp., 2013 ONCA 346

DATE: 20130527

DOCKET: M42317-M42455-C56789

Doherty, Simmons and Rouleau JJ.A.

Prime Real Estate Holdings Corp.

Plaintiff (Respondent in Appeal)

and

Her Majesty the Queen, FirstOntario Credit Union Limited and Fercan Developments Inc.

Respondents (Appellants)

William Friedman and Patrick Bakos, for the respondent (appellant), Fercan Developments Inc.

Charles P. Criminisi and Louis A. Grilli, for the respondent (appellant) FirstOntario Credit Union Limited

Morris Pistyner, for the respondent (appellant), Her Majesty the Queen

L. Leslie Dizgun, for the plaintiff (respondent) Prime Real Estate Holdings Corp.

Heard: May 21, 2013

APPEAL BOOK ENDORSEMENT

[1] We are satisfied there is no right of appeal by Fercan from the order of Mulligan J.

[2] Mulligan J.’s order was made on a motion brought by FirstOntario (the mortgagee). That motion requested a variation of the original restraining order which had permitted the sale of the property subject to the requirement that the proceeds would be held by A.G. Canada pending further order. FirstOntario sought a variation allowing the sale with payment to FirstOntario of the amount owing under the mortgage plus certain additional costs. The remaining proceeds would be held by AG Canada. The Crown did not oppose the variation. Mulligan J. made the order as it related to funds owing under the mortgage, but did not make the order as it related to the additional costs.

[3] This is a criminal proceeding. There is no provision in the Controlled Drugs and Substances Act (“CDSA”) which expressly gives a right of appeal from an order varying a restraining order: see A.G. (Canada) v. 31165 B.C. Ltd. 2011 BCCA 409, 2011 B.C.C.A. 409.

[4] Fercan relies on s. 15(1) of the CDSA which incorporates s. 490 of the Criminal Code. That section contains a right of appeal from certain orders made under s. 490: see s. 490(17).

[5] The orders appealable under s. 490(17) all involve determinations of entitlement of seized property. From Fercan’s perspective, the motion to vary the restraining order had nothing to do with Fercan’s entitlement to the property. To the extent that s. 490(17) may create a right of appeal from an order varying a restraining order made under s. 14 of the CDSA (a matter on which we express no final opinion), it cannot be read as giving a party in the position of Fercan a right of appeal.

[6] We add for the sake of completeness, that we see no arguable ground of appeal had there been a right of appeal. We would not have stayed the order.

[7] The appeal is quashed. This being a criminal mater, there is no right to costs.