IN THE MATTER OF THE BANKRUPTCY OF ANTHONY FALASCA, 2020 ONSC 4338

The error in the court’s order shall be subject to correction since clarity is an essential element of the order.

This was an appeal brought by Tony Falasca (Appellant) against the Goldcourt Developments Inc. (Respondent) regarding the order made by the registrar (Master Jean) on December 2, 2019. The matter of the appeal was the error in the words of the order. The facts of the case are – Respondent brought a bankruptcy application against the Appellant on June 2, 2018. The application was defended by the appellant on several grounds. Tasha Mazza (the daughter of Paul Mazza, who is related to the bankruptcy dispute) sweared the affidavit of verification but later refused to join for cross-investigation. Consequently, the appellant brought a motion requesting her appearance and some documents prior to her investigation. The registrar on the order of October 4, 2019, accepted the first proposition while rejecting the proposal to bring the documents. Accordingly, the order was drafted by the respondent. While the preamble of the order correctly describes the motion of appellant as “Advance production of the document before cross-examination” however, the word ‘advance’ was not mentioned in paragraph II of the order. The matter was notified to the registrar at the settlement of the Order (December 2, 2019) but she rejected it proclaiming it is congruent with the reference in the preamble. However, the appellant alleges that respondent is misusing the error in the order as per their convenience and thus served the notice of appeal on December 12, 2019, pursuant to Section 187(5) of the Bankruptcy and Insolvency Act (BIA) which states that the court may review or revise order made under its bankruptcy jurisdiction.

In response, the respondent brought a cross-motion to quash the appeal alleging that the appeal is not valid since it is inconsistent with the Rule 30.01 of the General Rules of the BIA, according to which the appeal against the order of the registrar must be done within 10 days. Further, the respondent submitted that the registrar hadn’t refused production of documents but annulled the motion since it was premature. Therefore, this was not the appropriate jurisdiction and appellant by examining Miss. Mazza had already waived the right to seek production of the documents.

The court on the question whether the appeal was out of time observed that it was not possible to appeal within 10 days since the draft order was not available in that time period and the possibility of such error can’t be comprehended. On the second issue, the court rejected the proposition that examining Miss. Mazza waives the right to seek the production and held that the respondent at different instances misused the error thus, there was a need of clarity which is an essential element of a Court Order, as reiterated in Booth v. Christensen, 2019 ABQB 878. Thus, the court allowed alteration in the order of the registrar and the respondent’s motion to quash the appeal was thereby dismissed.