watson JA

9.13: Re-opening case
14.37: Single appeal judges

Case Summary

An Approval and Vesting Order was granted by the Court of Queen’s Bench under the Bankruptcy and Insolvency Act, RSC 1985, c B-3 (the “BIA”) and a form of Order was filed shortly thereafter. On Appeal, the parties brought an Application and Cross-Application in respect of the Approval and Vesting Order to confirm or issue a stay, and to deny or lift a stay, respectively.

In first addressing variance of the Approval and Vesting Order, the Court observed that the entry of a formal Order acted to oust the Court’s ability to modify an Order under Rule 9.13. The Court then noted that Section 187(5) of the BIA permits “every court [to] review, rescind or vary any order made by it under its bankruptcy jurisdiction”, however, the parties had conceded that mere variance of the Order was not desired, and rather, they sought to determine whether or not an Appeal was available as of either right or leave.

Justice Watson acknowledged that a single Appeal Judge may only make rulings that are incidental to the operation of the Court of Appeal, pursuant to Rule 14.37, and therefore declined to rule on the availability of Appeal as of right on the authority of Section 193 of the BIA. However, His Lordship did grant leave to Appeal various points of law, including whether or not an Appeal as of right was available.

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