Balance was achieved by granting stay but on terms

Bankruptcy and Insolvency - Practice and procedure in courts - Appeals

Stay pending leave to appeal application. Bankrupt was adjudged bankrupt by Hong Kong court and recognition order was granted in Canada. Hong Kong court requested Ontario’s assistance in having applicant son of bankrupt produce relevant documents and attend examination for discovery, and court granted trustee’s motion for order enforcing letter of request. Applicant claimed initial recognition order was obtained on improper basis because trustee did not give him notice, and production and examination order was thereby tainted. Applicant’s application for leave to appeal and his appeal of production and examination order were dismissed. Applicant brought application for leave to appeal to Supreme Court of Canada. Applicant brought motion for stay of production and examination order pending determination of his leave to appeal application. Motion granted in part. Applicant’s grounds for appeal were very weak. It was unlikely there was question of public or national importance and court had discretion to dispense with service. Challenge to initial recognition order was impermissible collateral attack. Finding that there was no right of appeal under s. 193(b) of Bankruptcy and Insolvency Act in circumstances reflected jurisprudence and it was not clear it was open to applicant to pursue appeal after he was denied leave. Without stay, applicant would have to produce documents and attend examination, rendering his appeal moot. Supreme Court of Canada would likely decide in four to five months, which was not undue delay considering initial recognition order was made nearly two years prior. Applicant did not comply with order within 14 days as required and did not promptly bring application for leave to appeal and stay motion. Balance was achieved by granting stay, but on terms that applicant file documents in sealed envelope and swear compliance, and envelope would remained sealed pending determination of leave to appeal application.

Ting (Re) (2019), 2019 CarswellOnt 15263, 2019 ONCA 768, David Brown J.A. (Ont. C.A.).

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