Horowitz v. Greenberg / In re Joyce Dress Corp. Ltd., [1934] SCR 212

Supreme Court of Canada

Horowitz v. Greenberg / In re Joyce Dress Corp. Ltd., [1934] S.C.R. 212

Date: 1934-02-03.

In the matter of Joyce Dress Corporation Limited, in Liquidation.

Max Horowitz Applicant;

and

Isaacher Greenberg (Trustee). Respondent.

1934: February 3.

Rinfret J. in chambers.

ON APPEAL FROM THE COURT OF KING’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.

Bankruptcy—Application to judge of Supreme Court of Canada for special leave to appeal—Judgment declaring a person to be a contributory—Liability of the latter being over $2,000—No order for immediate payment of any sum of money—Winding up Act, R.S.C., 1927, c. 213, ss. 58, 59, 108.

A judge of the Supreme Court of Canada has jurisdiction to grant leave of appeal to this Court, under section 108 of the Winding Up Act, from a judgment ordering that the name of a person should be put on the list of contributories, its effect being to fix his liability at an amount over $2,000, although such judgment does not condemn him to pay immediately a definite sum of money. As a direct result of that judgment, such person may at any time be ordered by the bankruptcy court to make payments to the extent of the liability so fixed (ss. 58 and 59) and, therefore, the amount to which that liability extends is truly the amount involved in the appeal within the meaning of section 108.

APPLICATION for special leave to appeal to the Supreme Court of Canada from the judgment of the Court of King’s Bench, appeal side, province of Quebec, affirming the judgment of the Superior Court, sitting in bankruptcy, Boyer J., and declaring the appellant a contributory of the Joyce Dress Corporation, Limited, in liquidation, for the sum of $2,524.25.

The application came before Rinfret J. who dismissed it, holding that, although he had jurisdiction to hear it, no principle of law or matter of public interest was involved such as would justify the granting of the petition.

B. Robinson for the applicant.

J. G. Ahem K.C. for the respondent.

Rinfret J.—The appellant was declared a contributory of the Joyce Dress Corporation, Limited, in liquidation, to the amount of $2,524.25, by judgment of the Superior Court

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(Boyer J.), unanimously confirmed by the Court of King’s Bench (appeal side). He prays that he be given leave to appeal from that judgment to the Supreme Court of Canada.

This matter is covered by the Winding Up Act (R.S.C. 1927, c. 213). The authority to grant leave is given by section 108 of the Act, which requires that the amount involved in the appeal should exceed two thousand dollars. It was contended by the respondent that, in the premises, no amount was involved, since the decision goes merely to put the name of the appellant on the list of contributories, and does not condemn him to pay any specified sum. On that ground, objection was made to my jurisdiction to hear or to grant the appellant’s petition.

In my view, the objection was not well taken. It may be that the judgments do not condemn the appellant immediately to pay a definite sum of money; but their effect is to fix the liability of the appellant as a contributory at the amount of $2,524.25. As a direct result of the judgments, the appellant may at any time be ordered by the court to make payments to the extent of the liability so fixed (sections 58 and 59). The amount to which that liability extends is truly the amount involved in the appeal within the meaning of section 108. The respondent’s objection, therefore, fails.

It is not sufficient, however, that the amount involved in the appeal should exceed two thousand dollars, the appellant must get “leave”. That implies that he must show special reasons in support of the petition, which may not be granted as a matter of course, but only in the exercise of judicial discretion (In the matter of: Ontario Sugar Company)[1]. The object of the enactment is undoubtedly to avoid unnecessary delay and improvident incurring of costs in the winding up of insolvent estates.

After having considered very carefully the record of proceedings in this case, I am unable to convince myself that any principle of law or matter of public interest is involved such as would justify the granting of the petition now presented to me. As I understand the judgments rendered against the appellant without a dissenting opinion, they

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are based on concurrent appreciations of the special facts of the case rather than on a particular construction of the relevant statutes, or the application of any new point of law.

The petition will therefore be dismissed with costs.

Application dismissed with costs.