Court of Appeal for Ontario

Date: 2022-03-28 Docket: M52856 (C68764)

Judges: Pardu, Paciocco and Thorburn JJ.A.

In the Matter of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended And in the Matter of a Proceeding in the Hong Kong Special Administrative Region Re: James Henry Ting (in Bankruptcy)

Application of Cosimo Borrelli and Jacqueline Walsh of Borrelli Walsh Limited under Section 272 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as amended

Counsel: Arash Jazayeri, for the moving party, Andrew Henry Ting Ilan Ishai and Adam Zur, for the responding parties, Cosimo Borrelli and Jacqueline Walsh

Heard: March 25, 2022 by video conference

Reasons for Decision

[1] On September 14, 2021, Lauwers J.A., sitting as a single judge, denied an application by Andrew Henry Ting for leave to appeal a judgment finding him to be in civil contempt of court for failing to attend an examination in aid of the foreign bankruptcy of his father, James Henry Ting. That application was brought pursuant to s. 193 (e) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the “BIA”). The moving party now moves for an order setting aside Lauwers J.A.’s decision. We deny his motion.

[2] First, we lack jurisdiction to grant this motion. With rare exception, a panel of this court does not have jurisdiction to review the decision of a single appellate judge granting or denying leave to appeal under s. 193 (e) of the BIA: Business Development Bank of Canada v. Aventura II Properties Inc., 2016 ONCA 408, 132 O.R. (3d) 159. Although the decision in Aventura II has been questioned, it is binding on us: McEwen (Re), 2020 ONCA 511, 452 D.L.R. (4th) 248, at para. 61.

[3] Nor has the moving party satisfied us that this is an exceptional case where this court has the jurisdiction to review the decision of a single judge to deny leave to appeal.

[4] Even if we had jurisdiction, this motion would fail because it lacks merit. Lauwers J.A. provided a careful decision in which he correctly applied the law, including the decision in Susin v. Susin, 2014 ONCA 733, 379 D.L.R. (4th) 308 relating to the circumstances in which personal service can be dispensed with in civil contempt proceedings. His reasonable, indeed compelling, discretionary decision was made without any identifiable palpable or overriding errors. It is entitled to deference.

[5] The motion to set aside the decision of Lauwers J.A. is dismissed. Costs are payable by the moving party to the responding party in the amount of $5,000 inclusive of HST and disbursements.

“G. Pardu J.A.”

“David M. Paciocco J.A.”

“J.A. Thorburn J.A.”