



COURT OF APPEAL FOR ONTARIO

CITATION: Ting (Re), 2021 ONCA 425

DATE: 20210616

DOCKET: M52338 (C68764)

Rouleau, Hoy and van Rensburg
    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 269 of the
Bankruptcy and

Insolvency
    Act
, R.S.C., 1985, c. B-3, as amended

Ilan Ishai, for the moving
    parties, Cosimo Borrelli and Jacqueline Walsh of Borrelli Walsh Limited

Andrew Rogerson and Arash Jazayeri, for
    the responding party, Andrew Henry Ting

Heard: June 2, 2021 by video conference

REASONS FOR DECISION

[1]

This is a motion to quash an appeal.

[2]

The appellant, and responding party in this
    motion, Andrew Henry Ting, seeks to appeal two orders made against him in the
    context of bankruptcy proceedings in Ontario involving his father, James Henry
    Ting. Mr. Ting, Sr. was adjudged bankrupt by a Hong Kong court in 2016. The
    following year the bankruptcy order was recognized by the Superior Court under
    s. 270 of the
Bankruptcy and Insolvency Act
(the BIA), and the moving parties, who are the trustees in
    bankruptcy of the bankrupt, were appointed as foreign representatives of the
    bankrupt as defined in s. 268.

[3]

On January 15, 2019, Penny J. granted an order
    in the bankruptcy proceedings enforcing a letter of request from the Hong Kong
    court, requiring the appellant to make certain productions and to attend an
    examination. After an unsuccessful attempt to appeal that order (the appeal was
    quashed and the appellant was denied leave to appeal by the Supreme Court of
    Canada), the appellant failed to attend for examination. The trustees brought a
    motion for contempt. By order dated October 5, 2020, Dietrich J. found the
    appellant in contempt and allowed him to purge his contempt within ten days.
    The appellant delivered a notice of appeal of that order. On February 8, 2021,
    the appellant was sentenced to seven days incarceration for contempt, to come
    into effect seven days after the final adjudication of the appellants appeal.
    The appellant served an additional notice of appeal in respect of the penalty
    order.

[4]

The appellants notices of appeal assert that he
    has a right of appeal under s. 193(a) of the BIA. He has also served the
    trustees with a motion for leave to appeal both orders under s. 193(e). That
    motion, which is to be heard by a single judge of this court, is scheduled for
    September.

[5]

This court has repeatedly held that an appeal
    from an order made in bankruptcy proceedings is governed by s. 193 of the BIA:
Canada (Superintendent of Bankruptcy) v. 407 ETR Concession Company
    Limited
, 2012 ONCA 569, 95 C.B.R. (5th) 157, at
    para. 19;
Wallace (Re)
,
    2016 ONCA 958, 43 (C.B.R.) (6th) 2010, at para. 7;
Business
    Development Bank of Canada v. Astoria Organic Matters Ltd. and Astoria Organic
    Matters Canada LP
(7 January 2019), Ontario, M49872 (C65512) (C.A.)
    (In Chambers), at para. 20;
Shaver-Kudell Manufacturing
    Inc. v. Knight Manufacturing Inc.
, 2021 ONCA 202 (In Chambers), at
    para. 18
.
See also
2003945
    Alberta Ltd. v. 1951484 Ontario Inc.
, 2018 ABCA 48, 57 C.B.R. (6th)
    272, at para. 11. An order will also be subject to the appeal routes under s.
    193 (rather than under s. 6 of the
Courts of Justice Act
(the
    CJA))

where the order is made by a judge exercising powers conferred
    by the BIA:
Business Development Bank of Canada v. Astoria
    Organic Matters Ltd.
, 2019 ONCA 269, 69 C.B.R. (6th) 13, at paras.
    29-31.

[6]

While an order may involve a bankrupt, or be made during the
    currency of bankruptcy proceedings, this is not determinative of whether an
    appeal from that order is governed by the BIA or CJA:
Rusinek
    & Associates Inc. v. Arachchilage
, 2021 ONCA 112, 87 C.B.R.
    (6th) 1;
RREF II BHB IV Portofino, LLC v. Portofino
    Corporation
, 2015 ONCA 906, 33 C.B.R. (6th) 9. For example, in
Rusinek
, an order made on an application pursuant to r.
    14.05(3)(d) of the
Rules of Civil Procedure
,

determining that a bankrupts trustee did not have the right to commence
    an equalization claim against the bankrupts former spouse, was appealable
    under s. 6(1) of the CJA. It was not an order made in bankruptcy
    proceedings, nor was the application judge exercising a power conferred on her
    by the BIA: at para. 15.

[7]

In our view, in the present case, the orders are
    subject to the appeal routes under s. 193 of the BIA. The appellant commenced
    his appeal relying on the provisions of the BIA. The orders under appeal were
    made in the bankruptcy proceedings of Mr. Ting, Sr. The appellant was brought
    into his fathers bankruptcy proceedings through the order of Penny J., with which
    he failed to comply, leading to the contempt order and penalty order. Penny J. expressly
    exercised a power under s. 272(1)(b) of the BIA, that provides, on application
    by a foreign representative, for an order respecting the examination of
    witnesses concerning the debtors property, affairs, debts, liabilities and
    obligations. Penny J. stated that he was satisfied that the orders enforcing
    the Hong Kong courts letter of request and requiring the appellants
    examination, fall squarely within s. 27[2](1)(b) of the BIA. The orders under
    appeal were made in the context of the enforcement of the Penny J. order.

[8]

The appellant contends that he has a right to
    appeal the motion judges contempt order and the penalty order under s. 193(a)
    of the BIA, which provides for an appeal to this court if the point at issue
    involves future rights.

[9]

The appellant asserts that the appeal involves
    future rights because his appeal raises matters of procedural fairness  as one
    of his grounds of appeal, the appellant contends that the motion judge
    improperly refused to recuse herself after the moving parties counsel made
    allegations of criminal misconduct against him that were not supported by the
    evidence.

[10]

Future rights have been described as rights
    which could not at the present time be asserted but which will come into
    existence at a future time:
Elias v. Hutchison
, 1981 ABCA 31, 37 C.B.R. (N.S.) 149, at para. 28, cited with
    approval in
Re Ravelston Corp.
(2005), 24 C.B.R. (5th) 256 (Ont. C.A.), at para. 19. The question
    is whether the rights engaged in an appeal are future rights or presently
    existing rights that are exercisable in the future:
Business Development Bank of Canada v. Pine Tree Resorts Inc.
, 2013 ONCA 282, 115 O.R. (3d) 617 (In Chambers), at para. 16.

[11]

In support of the argument that
his appeal engages future rights, the appellant relies on
Canada
    Deposit Insurance Corp. v. Commonwealth Trust Co.
(1993)
, 35 C.B.R. (3d) 208 (B.C.C.A.) (In
    Chambers). In that case, the B.C. Court of Appeal held that the appeal of an
    order of a judge made under the
Winding-up Act
for refusing to recuse
    himself on the grounds of reasonable apprehension of bias, involved future
    rights. The statutory scheme however was different (s. 103 of the
Act
provided for appeal with leave from specific orders, including orders
    involving future rights), and the court did not analyze the issue, but
    accepted the concession of the respondent that the appeal as framed involved
    future rights, and that it was therefore open to the appellant to seek leave to
    appeal under the
Act
: at para. 3.

[12]

In
Re Ravelston,
Doherty J.A. noted
    that [e]arlier casesthat would give the phrase future rights a wide and
    liberal interpretation are inconsistent with the contemporary approach to
    statutory interpretation: at para. 17. Indeed, more recent case law applying
    s. 193 of the BIA confirms that issues of procedural fairness typically engage
    a partys present, and not future rights. In
2003945 Alberta Ltd.
,
    a case involving the appeal of an order in receivership proceedings, directing
    the summary trial of an issue, the court rejected the argument that future
    rights were engaged because the order restricted the appellants rights in a
    future trial to call necessary witnesses. The court concluded that an appeal of
    an order on the grounds of procedural fairness implicates a partys
present
,
    not future, rights: at para. 19.
See also
Simonelli v.
    Mackin
, 2003 ABCA 47, 39 C.B.R. (4th) 297 (In Chambers), at para. 11.

[13]

Similarly, in the present case, the appellants
    right to procedural fairness was a present right that existed at the time of
    the hearing before the motion judge. His appeal of the contempt order and the
    penalty order do not engage future rights within the scope of s. 193(a) of the
    BIA.

[14]

For these reasons the appeal is quashed. Costs to
    the moving parties in the agreed amount of $5,000, inclusive of HST and
    disbursements.

Paul
    Rouleau J.A.

Alexandra
    Hoy J.A.

K.
    van Rensburg J.A.


