COURT OF APPEAL FOR ONTARIO

CITATION: Wallace (Re), 2016 ONCA 958

DATE: 20161216

DOCKET: C61514

Cronk, Juriansz and Brown JJ.A.

In the Matter of the Bankruptcy of Alma Maria Wallace (aka Alma Maria Belacic) of the City of Toronto, in the Province of Ontario

Sean N. Zeitz, for the appellant/responding party, Brief & Associates Inc.

Chris Dockrill, for the respondent/moving party, Alma Maria Wallace

Heard: October 11, 2016

On a motion to quash the appeal from the order of Justice Barbara A. Conway of the Superior Court of Justice, dated November 17, 2015.

ENDORSEMENT

[1] The moving party, the bankrupt Alma Maria Wallace (the “Bankrupt”), seeks to quash the appellant Trustee’s appeal from the dismissal of its motion for a contempt finding against the Bankrupt.

[2] During oral argument, the sole ground advanced by the Bankrupt in support of her motion to quash was that the order sought to be appealed is interlocutory in nature and, consequently, any appeal from it falls within the Divisional Court’s jurisdiction under s. 19 of the Courts of Justice Act, R.S.O. 1990, c. C.43, with leave. Argument of the motion to quash therefore focused exclusively on whether the dismissal order is final or interlocutory.

[3] Following oral submissions, the Panel indicated its view that the dismissal order did not finally determine the bankruptcy proceeding. Further, no contempt finding was made against the Bankrupt, the bankruptcy proceeding was ongoing and it was open to the Trustee to obtain relief in that proceeding arising out of the Bankrupt’s admitted failure to abide by the terms of Patillo J.’s order dated April 8, 2015 or any other court order. The Panel also noted that, under the order in question, the motion judge granted relief to the Trustee in the bankruptcy proceeding, although not of the type sought by the Trustee.

[4] In these circumstances, on the authority of Chirico v. Szalas, 2016 ONCA 586 and The Catalyst Capital Group Inc. v. Moyse, 2015 ONCA 784, it appeared that the impugned order was interlocutory in nature and, consequently, that this court lacked jurisdiction to hear the appeal.

[5] Within hours of the hearing of the motion to quash, counsel for the Trustee requested “clarification and directions” from the court in light of s. 193(e) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the “BIA”). Prior to receipt of this request, neither counsel had relied on or drawn this court’s attention to s. 193 of the BIA. The Trustee’s communication to the court led to the request by the Panel for further submissions from both counsel regarding the effect, if any, of s. 193 of the BIA on this motion and the appeal.

[6] Section 193 of the BIA reads:

Unless otherwise expressly provided, an appeal lies to the Court of Appeal from any order or decision of a judge of the court in the following cases:

(a) if the point at issue involves future rights;

(b) if the order or decision is likely to affect other cases of a similar nature in the bankruptcy proceedings;

(c) if the property involved in the appeal exceeds in value ten thousand dollars;

(d) from the grant of or refusal to grant a discharge if the aggregate unpaid claims of creditors exceed five hundred dollars; and

(e) in any other case by leave of a judge of the Court of Appeal.

[7] We have now received and reviewed counsels’ submissions concerning s. 193 of the BIA. Based on those submissions and the record before us, we are satisfied that the Trustee’s contempt motion was brought in the context of the bankruptcy proceeding, based on the Bankrupt’s conduct in the bankruptcy. The order in question being an order of a judge of the Superior Court of Justice vested with original jurisdiction under s. 183(1) of the BIA, we also conclude that the motion judge’s determination of the Trustee’s request for a contempt finding against the Bankrupt was an “order or decision of a judge of the court” within the meaning of s. 193 and the definition of “court” under s. 2 of the BIA.

[8] It follows that an appeal from the dismissal order lies to this court either as of right under ss. 193(a) to (d), or with leave of a judge of this court under s. 193(e). On this analysis and in light of the unlimited introductory language of s. 193, the issue whether the challenged dismissal order is interlocutory or final is irrelevant. Section 193 authorizes the appeal of both interlocutory and final orders to this court in the circumstances described in ss. 193(a) to (e): see RREF II BHB IV Portofino LLC v. Portofino Corp., 2015 ONCA 906, at para. 9.

[9] Counsel made no submissions to the court concerning the potential application of any of ss. 193(a) to (d) in this case. Further, counsel disagree as to whether s. 193(e) authorizes the Trustee’s appeal to this court, no formal leave motion having been brought by the Trustee and granted by a judge of this court.

[10] The allegations advanced by the Trustee against the Bankrupt in support of the Trustee’s contempt motion are serious and, in our view, raise issues that are of general importance to the practice in bankruptcy matters. Moreover, the Bankrupt has admitted her non-compliance with an outstanding order of the Superior Court of Justice. The subject matter of the appeal therefore also engages issues relating to the administration of justice.

[11] Accordingly, we are persuaded that if leave to appeal to this court is required by reason of s. 193(e) of the BIA, this is an appropriate case for the granting of such leave. See Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, at para. 29. As we have said, if leave to appeal is not required, the Trustee’s appeal lies to this court as of right upon demonstration that one or more of ss. 193(a) to (d) apply.

[12] In the result, the motion to quash is dismissed. The Trustee’s appeal shall be scheduled for argument in this court on the first available date obtained from the Registrar of the court. Given the manner in which argument of this motion ultimately evolved, this is not an appropriate case for any award of the costs of this motion.

“E.A. Cronk J.A.”

“R.G. Juriansz J.A.”

“David Brown J.A.”