



COURT OF APPEAL FOR ONTARIO

CITATION: Business Development Bank of Canada v. Aventura II
    Properties Inc., 2016 ONCA 408

DATE: 20160526

DOCKET: M46447 (C61854)

Feldman, Rouleau and Huscroft JJ.A.

BETWEEN

Business Development Bank of Canada

Applicant

and

Aventura
    II Properties Inc., Pavilion Sports Clubs Inc. Pavilion Sports Ice Inc.,
    Pavilion Sports Food and Beverage Inc.,

and
    Pavilion Aquatic Club Inc.

Respondents

Sean N. Zeitz, for the moving parties, Revital Druckmann
    and Jean-Jacques Myara

Catherine Francis, for the respondent, Duca Financial
    Services Credit Union Ltd.

Kelli Preston, for the respondent, Receiver, Pollard
    & Associates Inc.

Heard and released orally: May 17, 2016

ENDORSEMENT

[1]

The moving party seeks a review of the order of van Rensburg J.A. dated
    April 22, 2016, which denied leave to appeal to Ms. Druckmann under s. 193(e)
    of the
Bankruptcy and Insolvency Act
, RSC 1985, c B-3 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(e)
    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 CanLII 4208 (ON CA) 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
, S.I./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 $13,700.00 in fees, plus $375.27 in disbursements.  The liability for
    costs will be joint and several to the two moving parties.

K.
    Feldman J.A.

Paul
    Rouleau J.A.

"Grant
    Huscroft J.A."


