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PROCEEDINGS - Appeals and judicial review - Practice and procedure

Thursday, May 09, 2019 @ 8:35 AM  


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Motion by SusGlobal Energy to set aside the decision of a chambers judge that terminated its attempt to appeal. SusGlobal wished to appeal two orders that denied it leave to sue the respondent BDO Canada in its capacity as court-appointed receiver of Astoria Organic and denied its request to re-open its original application for leave so that it could file fresh evidence. The Superior Court dismissed SusGlobal’s request to sue the receiver in reliance on the leave to sue provision in the receivership order. The chambers judge found the Bankruptcy and Insolvency Act, and not the Courts of Justice Act, governed SusGlobal’s appeal. He further found the provisions of the Bankruptcy and Insolvency Act that provided for appeals as of right were not applicable and no grounds for granting leave to appeal existed.

HELD: Motion dismissed. The proper appeal route was the Bankruptcy and Insolvency Act as the orders sought to be appealed were made in reliance on jurisdiction under that Act. The court’s authority to include the leave to sue provision in the receivership order flowed by necessary implication from the statutory power to appoint a receiver under s. 243(1) of the Bankruptcy and Insolvency Act. Since the authority for the leave to sue provision was found both in the Bankruptcy and Insolvency Act and the Courts of Justice Act and since the receiver was appointed under both statutes, the appeal was governed by the Bankruptcy and Insolvency Act as a matter of paramountcy.

Business Development Bank of Canada v. Astoria Organic Matters Ltd., [2019] O.J. No. 1742, Ontario Court of Appeal, K.N. Feldman, D. Paciocco and B. Zarnett JJ.A., April 8, 2019. Digest No. TLD-May62019010