Date: 20000828
Docket: A-371-00
| C O R A M: STRAYER J.A. |
B E T W E E N:
FREDERICK BLACK
Appellant
-- and --
THE CREDITORS OF THE NsC DIESEL POWER INC.
Respondent
REASONS FOR ORDER
STRAYER J.A.
[1] The moving party, the Superintendent of Bankruptcy, is entilted to be a party to this appeal.
[2] Although he was not named as a respondent in the appellant's application in the Trial Division, the mandamus order which the appellant requested there would have required the Superintendent to take certain steps. The Superintendent successfully sought to intervene to have that application quashed. He was entitled to be treated as a party there both because his presence would be necessary to deal with an application seeking an order against him, but also because, by paragraph 5(4)(a) of the Bankruptcy and Insolvency Act, he was entitled to intervene "as if he were a party" to such proceedings. Further, it was he who brought the motion to strike the original mandamus application and, by virtue of section 2 of the Rules of Court "party" is defined, in respect of a motion, to be "the person bringing the motion or a respondent thereto".
[3] This is all relevant to the entitlement of the Superintendent to be a party to an appeal from the order which resulted from his motion in the Trial Division. By paragraph 338(1)(a) of the Rules of Court the appellant was obliged to name, as a respondent, "every party in the first instance who is adverse in interest to the appellant in this appeal". It appears to me that the motions judge properly treated the Superintendent as a party to his motion to strike and, the resulting order to strike being the subject of this appeal, the Superintendent as a party below is clearly adverse in interest to the appellant who seeks the reversal of the striking out order.
[4] The Superintendent will therefore be confirmed as a respondent to this appeal.
(s) "B.L. Strayer"
J.A.