Court of Appeal for Ontario

Citation: Bushy (Re), 2013 ONCA 46

Date: 20130125

Docket: C55917

Before: Laskin, LaForme and Hoy JJ.A.

In the Matter of the Proposal of Owen Scott Bushey

Between

Andre Tardiff Agency Limited

Appellant

and

Burlingham Associates Inc., Administrator of the Proposal of Owen Scott Bushey

Respondent

Counsel: Jonathan H. Wigley, for the appellant No one appearing for the respondent

Heard and released orally: January 9, 2013

On appeal from the order of Justice H.M. Pierce of the Superior Court of Justice, dated July 13, 2012.

ENDORSEMENT

[1] The appellant appeals the motion judge’s order of July 13, 2012 dismissing its request that the Notice of Disallowance of its claim in the Consumer Proposal of Owen Scott Bushey be set aside.

[2] We agree with the motion judge that the appellant’s motion should have been brought before the Court of Queen’s Bench of Saskatchewan in Saskatoon where the Consumer Proposal was filed. See ss. 43(5) and 66.4 of the Bankruptcy and Insolvency Act (the “BIA”) and Sam Levy & Associates Inc. v. Azco Mining Inc., (2001) SCC 92, at para. 27.

[3] In our view, however, the motion judge erred by failing to consider whether she should exercise her discretion under s. 187(10) of the BIA to transfer the motion to the proper court, namely the Court of Queen’s Bench of Saskatchewan in Saskatoon. Section 187(10) provides:

Nothing in this section invalidates any proceedings by reason of their having been commenced, taken or carried on in the wrong court, but the court may at any time transfer the proceedings to the proper court.

[4] Her failure to do so appears to have resulted from her conclusion, which we do not endorse, that the appellant’s motion was in any event out of time because it was not heard by her within 30 days after the appellant was served with a Notice of Disallowance as required by s. 135(4) of the BIA.

[5] In the result, we set aside the motion judge’ order and transfer the appellant’s motion to the Court of Queen’s Bench of Saskatchewan in Saskatoon. We make no determination as to the effect of the failure of the appellant to file its motion with the proper court within the 30-day period prescribed by s. 135(4) of the BIA.

“John Laskin J.A.”

“H.S. LaForme J.A.”

“Alexandra Hoy J.A.”