



COURT OF APPEAL FOR ONTARIO

CITATION:
Bushy
    (Re), 2013 ONCA 46

DATE: 20130125

DOCKET: C55917

Laskin, LaForme and Hoy JJ.A.

In the Matter of the Proposal of Owen Scott
    Bushey

BETWEEN

Andre Tardiff Agency Limited

Appellant

and

Burlingham Associates Inc., Administrator of the
    Proposal of Owen Scott Bushey

Respondent

Jonathan H. Wigley, for the appellant

No one appearing for the respondent

Heard and released orally: January 9, 2013

On appeal from the order of Justice H.M. Pierce of the Superior
    Court of Justice, dated July 13, 2012.

ENDORSEMENT

[1]

The appellant appeals the motion judges order of July 13, 2012
    dismissing its request that the Notice of Disallowance of its claim in the Consumer
    Proposal of Owen Scott Bushey be set aside.

[2]

We agree with the motion judge that the appellants motion should have
    been brought before the Court of Queens Bench of Saskatchewan in Saskatoon
    where the Consumer Proposal was filed.  See ss. 43(5) and 66.4 of the
Bankruptcy
    and Insolvency Act
(the BIA) and
Sam Levy & Associates Inc. v.
    Azco Mining Inc.
, (2001) SCC 92, at para. 27.

[3]

In our view, however, the motion judge erred by failing to consider
    whether she should exercise her discretion under s. 187(10) of the BIA to
    transfer the motion to the proper court, namely the Court of Queens Bench of
    Saskatchewan in Saskatoon.  Section 187(10) provides:

Nothing in this section invalidates any proceedings by reason
    of their having been commenced, taken or carried on in the wrong court, but the
    court may at any time transfer the proceedings to the proper court.

[4]

Her failure to do so appears to have resulted from her conclusion, which
    we do not endorse, that the appellants motion was in any event out of time
    because it was not heard by her within 30 days after the appellant was served
    with a Notice of Disallowance as required by s. 135(4) of the BIA.

[5]

In the result, we set aside the motion judge order and transfer the
    appellants motion to the Court of Queens Bench of Saskatchewan in Saskatoon. 
    We make no determination as to the effect of the failure of the appellant to
    file its motion with the proper court within the 30-day period prescribed by s.
    135(4) of the BIA.

John Laskin J.A.

H.S. LaForme J.A.

Alexandra Hoy J.A.


