Khan v. 1791450 Ontario Incorporated
The appeal was dismissed because s.255 of the OBCA grants the right of appeal from any order made under the Act to the Divisional Court and the decision not to adjourn was an order ancillary to the OBCA oppression remedy proceeding (s.248); therefore the Court of Appeal lacked jurisdiction to hear the appeal.
Source-derived case information.
- Citation
- 2012 ONCA 167
- Parties
- Appellant: Asaad Khan (as Director of 1791450 Ontario Incorporated); Appellant: Assad Khan (personally); Appellant: Saida Khan; Respondent: 1791450 Ontario Incorporated; Respondent: Sharjeel Khan (shareholder and director of 1791450 Ontario Incorporated)
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 16 March 2012
- Procedural Posture
- Appeal From Superior Court of Justice / Preliminary Jurisdictional Determination on Whether Appeal Lies to Court of Appeal or Divisional Court
- Outcome
- Appeal dismissed for lack of jurisdiction; matter may be pursued before the Divisional Court at the appellant's option; costs awarded to respondents.
- Legal Topics
- Oppression Remedy, Jurisdiction of Appeal, Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Asaad Khan (as Director of 1791450 Ontario Incorporated)
Appellant
Assad Khan (personally)
Appellant
Saida Khan
Appellant
1791450 Ontario Incorporated
Respondent
Sharjeel Khan (shareholder and director of 1791450 Ontario Incorporated)
Respondent
Procedural Posture
Appeal From Superior Court of Justice / Preliminary Jurisdictional Determination on Whether Appeal Lies to Court of Appeal or Divisional Court
Legal Issues
- 1 Whether the Court of Appeal or the Divisional Court has jurisdiction to hear the appeal under s.255 OBCA
- 2 Whether the decision not to adjourn was an order ancillary to an OBCA proceeding (oppression remedy under s.248) and therefore appealable to the Divisional Court
Ratio Decidendi
The appeal was dismissed because s.255 of the OBCA grants the right of appeal from any order made under the Act to the Divisional Court and the decision not to adjourn was an order ancillary to the OBCA oppression remedy proceeding (s.248); therefore the Court of Appeal lacked jurisdiction to hear the appeal.
Court Disposition
Appeal dismissed for lack of jurisdiction; matter may be pursued before the Divisional Court at the appellant's option; costs awarded to respondents.
Orders
- Appeal dismissed.
- Costs to the respondents fixed at $15,000.00 inclusive of disbursements and HST.
Full Case Text
Judgment text and source record
1 paragraphs
Khan v. 1791450 Ontario Incorporated Collection Decisions of the Court of Appeal Date 2012-03-16 Neutral citation 2012 ONCA 167 Docket numbers C53580 Judges Feldman, Kathryn N.; Hoy, Alexandra; Spence, James M. Subject Civil Decision Content COURT OF APPEAL FOR ONTARIO CITATION: Khan v. 1791450 Ontario Incorporated, 2012 ONCA 167 DATE: 20120316 DOCKET: C53580 Feldman and Hoy JJ.A. and Spence J. (Ad Hoc) BETWEEN Asaad Khan as Director of 1791450 Ontario Incorporated and Assad Khan Personally and Saida Khan Appellants (Respondents) and 1791450 Ontario Incorporated and Sharjeel Khan Shareholder and Sharjeel Khan as Director of 1791450 Ontario Incorporated Respondents (Applicants) R. Matthew Barteaux, for the appellants Anser Farooq and H. Syed, for the respondents Heard and released orally: February 17, 2012 On appeal from the judgment of Justice Lorna-Lee Snowie of the Superior Court of Justice, dated March 18, 2011. ENDORSEMENT [1] The preliminary issue before the court is whether the jurisdiction to hear the appeal lies with this court or the Divisional Court. Section 255 of the Business Corporations Act, R.S.O. 1990, c.B.16, (the “OBCA”) provides: An appeal lies to the Divisional Court from any order made by the court under this Act. [2] The appellant relies on the decision in Kelvin Energy v. Lee, [1992] 3 S.C.R. 235 (S.C.C.) 33, as to jurisdiction in respect of orders in Canada Business Corporations Act cases. The Ontario cases dealing with the jurisdiction issue in respect of the OBCA that are relevant here – McCormick Estate (Trustee of) v. Murphy, 2005 CarswellOnt 1194, Ontario Securities Commission v. McLaughlin 2009 CarswellOnt 1749, (2009), ONCA 280, 248 O.A.C. 54 and Amaranth LLC v. Counsel Corp., 2004 CarswellOnt 2026, 186 O.A.C. 395, 71 O.R. (3d) 258 – all support the conclusion that the decision not to adjourn was an order ancillary to the OBCA proceeding for an oppression remedy under s. 248. As such, it is appealable to the Divisional Court under s. 255 of the OBCA and not to this court, and cannot be heard here. [3] The appellant seeks an order to transfer this case to the Divisional Court, but how the appellant now proceeds must be left up to him. [4] Accordingly, the appeal is dismissed. [5] Costs to the respondents fixed at $15,000.00 inclusive of disbursements and HST. “K. Feldman J.A.” “Alexandra Hoy J.A.” “Spence J. (ad hoc)”