



COURT OF APPEAL FOR ONTARIO

CITATION:
Ting (Re), 2022 ONCA 258

DATE: 20220328

DOCKET: M52856 (C68764)

Pardu, Paciocco and Thorburn
    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 272 of the
Bankruptcy
and Insolvency Act
, R.S.C. 1985, c. B-3, as
    amended

Arash Jazayeri, for the moving party,
    Andrew Henry Ting

Ilan Ishai and Adam Zur, for the
    responding parties, Cosimo Borrelli and Jacqueline Walsh

Heard: March 25, 2022 by video
    conference

REASONS FOR DECISION

[1]

On September 14, 2021, Lauwers J.A., sitting as
    a single judge, denied an application by Andrew Henry Ting for leave to appeal
    a judgment finding him to be in civil contempt of court for failing to attend
    an examination in aid of the foreign bankruptcy of his father, James Henry
    Ting. That application was brought pursuant to s. 193(e) of the
Bankruptcy
    and Insolvency Act
, R.S.C. 1985, c. B-3 (the 
BIA
).

The
    moving party now moves for an order setting aside Lauwers J.A.s decision. We
    deny his motion.

[2]

First, we lack jurisdiction to grant this
    motion. With rare exception, a panel of this court does not have jurisdiction
    to review the decision of a single appellate judge granting or denying leave to
    appeal under s. 193(e) of the
BIA
:
Business Development Bank of
    Canada v. Aventura II Properties Inc.
, 2016 ONCA 408, 132 O.R. (3d) 159
.
Although the decision in
Aventura II
has been questioned, it is
    binding on us:
McEwen (Re)
, 2020 ONCA 511, 452 D.L.R. (4th) 248, at
    para. 61.

[3]

Nor has the moving party satisfied us that this
    is an exceptional case where this court has the jurisdiction to review the
    decision of a single judge to deny leave to appeal.

[4]

Even if we had jurisdiction, this motion would
    fail because it lacks merit. Lauwers J.A. provided a careful decision in which
    he correctly applied the law, including the decision in
Susin v. Susin
,
    2014 ONCA 733, 379 D.L.R. (4th) 308 relating to the circumstances in which
    personal service can be dispensed with in civil contempt proceedings. His
    reasonable, indeed compelling, discretionary decision was made without any
    identifiable palpable or overriding errors. It is entitled to deference.

[5]

The motion to set aside the decision of Lauwers
    J.A. is dismissed. Costs are payable by the moving party to the responding
    party in the amount of $5,000 inclusive of HST and disbursements.

G. Pardu J.A.

David M. Paciocco J.A.

J.A. Thorburn J.A.


