Business Development Bank of Canada v. Aventura II Properties Inc. et al.
[Indexed as: Business Development Bank of Canada v. Aventura II Properties Inc.]
Ontario Reports
Court of Appeal for Ontario,
Feldman, Rouleau and Huscroft JJ.A.
May 26, 2016
132 O.R. (3d) 159 | 2016 ONCA 408
Case Summary
Bankruptcy and insolvency — Appeals — Court of Appeal not having jurisdiction to review decision of single judge of Court of Appeal granting or denying leave to appeal under s. 193 of Bankruptcy and Insolvency Act — Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 193(e).
The moving party moved for a review of an order by a single judge of the Court of Appeal denying leave to appeal under s. 193 of the Bankruptcy and Insolvency Act.
Held, the motion should be dismissed.
The Court of Appeal does not have jurisdiction to review a decision of a single judge granting or denying leave to appeal under s. 193 of the Bankruptcy and Insolvency Act.
R. v. Scherba (2001), 54 O.R. (3d) 555, [2001] O.J. No. 2235, 146 O.A.C. 99, 155 C.C.C. (3d) 512, 2001 CanLII 4208, 50 W.C.B. (2d) 148 (C.A.), apld
Other cases referred to
Business Development Bank of Canada v. Aventura II Properties Inc., [2016] O.J. No. 2918, 2016 ONCA 300, 37 C.B.R. (6th) 219
Statutes referred to
Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 193(e)
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 7(5)
Criminal Code, R.S.C. 1985, c. C-46, s. 839(1)
Rules and regulations referred to
Criminal Appeal Rules, SI/93-169 [as am.]
MOTION for the review of an order denying leave to appeal.
Sean N. Zeitz, for moving parties Revital Druckmann and Jean-Jacques Myara.
Catherine Francis, for respondent Duca Financial Services Credit Union Ltd.
Kelli Preston, for respondent receiver Pollard & Associates Inc.
Endorsement
[1] BY THE COURT: -- The moving party seeks a review of the order of van Rensburg J.A. dated April 22, 2016 [[2016] O.J. No. 2918, 2016 ONCA 300], which denied leave to appeal to Ms. Druckmann under s. 193(e) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 ("BIA") and which ordered Mr. Myara to pay security for costs of the appeal. Counsel for the moving parties advised the court that Mr. Myara relies on the grounds of appeal asserted by Ms. Druckmann.
[2] The first issue is whether this court has jurisdiction to review a decision of a single judge granting or denying leave to appeal under s. 193 of the BIA.
[3] We agree with the respondents that this court does not have jurisdiction to review the order. We apply the decision of this court in R. v. Scherba (2001), 54 O.R. (3d) 555, [2001] O.J. No. 2235, 2001 CanLII 4208 (C.A.), where the court held that there is no right of review of a decision of a single judge to grant or deny leave under s. 839(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-46. The court based its decision on two grounds: the first was that the Criminal Appeal Rules, SI/93-169, do not provide for such an appeal. The BIA also does not provide for such an appeal.
[4] The second ground was that s. 7(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43, which gives a panel of the court the authority to review a decision of a single judge, does not apply to a leave motion, which must be decided by a panel. The analysis in the second ground applies equally to this case. We add that having heard full submissions, we would not have granted leave.
[5] The motion for leave is therefore dismissed. Counsel advised that if leave is not granted to Ms. Druckmann, then Mr. Myara does not intend to post security for costs, the motion for review of that order may be dismissed, and the appeal should be quashed. So ordered.
[6] Costs to each of the respondents on the partial indemnity scale: to Duca Financial Services Credit in the amount of $15,699.44; to the receiver in the amount of $13,700 in fees, plus $375.27 in disbursements. The liability for costs will be joint and several to the two moving parties.
Motion dismissed.
End of Document