



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Prime Real Estate Holdings Corp., 2013 ONCA
    346

DATE: 20130527

DOCKET: M42317-M42455-C56789

Doherty, Simmons and Rouleau JJ.A.

Prime Real Estate Holdings Corp.

Plaintiff (Respondent
    in Appeal)

and

Her Majesty the Queen, FirstOntario Credit Union
    Limited and
Fercan Developments Inc.


Respondents
    (Appellants)

William Friedman and Patrick Bakos, for the respondent (appellant),
    Fercan Developments Inc.

Charles P. Criminisi and Louis A. Grilli, for the
    respondent (appellant) FirstOntario Credit Union Limited

Morris Pistyner, for the respondent (appellant), Her
    Majesty the Queen

L. Leslie Dizgun, for the plaintiff (respondent) Prime
    Real Estate Holdings Corp.

Heard:  May 21, 2013

APPEAL BOOK ENDORSEMENT

[1]

We are satisfied there is no right of appeal by Fercan from the order of
    Mulligan J.

[2]

Mulligan J.s order was made on a motion brought by FirstOntario (the
    mortgagee).  That motion requested a variation of the original restraining
    order which had permitted the sale of the property subject to the requirement
    that the proceeds would be held by A.G. Canada pending further order. 
    FirstOntario sought a variation allowing the sale with payment to FirstOntario
    of the amount owing under the mortgage plus certain additional costs.  The
    remaining proceeds would be held by AG Canada.  The Crown did not oppose the
    variation.  Mulligan J. made the order as it related to funds owing under the
    mortgage, but did not make the order as it related to the additional costs.

[3]

This is a criminal proceeding.  There is no provision in the
Controlled
    Drugs and Substances Act
(
CDSA
)
which expressly gives a right of appeal from an order varying a restraining
    order:  see
A.G. (Canada) v. 31165 B.C. Ltd.
2011 B.C.C.A. 409.

[4]

Fercan
relies on s. 15(1)
    of the
CDSA
which incorporates s. 490 of the
Criminal Code
. 
    That section contains a right of appeal from certain orders made under s. 490: 
    see s. 490(17).

[5]

The orders appealable
    under s. 490(17) all involve determinations of entitlement of seized property. 
    From Fercans perspective, the motion to vary the restraining order had nothing
    to do with Fercans entitlement to the property.  To the extent that s. 490(17)
    may create a right of appeal from an order varying a restraining order made
    under s. 14 of the
CDSA
(a matter on which we express no final opinion), it cannot be read as giving a
    party in the position of Fercan a right of appeal.

[6]

We add for the sake of
    completeness, that we see no arguable ground of appeal had there been a right
    of appeal.  We would not have stayed the order.

[7]

The appeal is quashed.  This being a
    criminal mater, there is no right to costs.


