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Insolvency - BIA - Appeals - Time Extension. Toronto-Dominion Bank v. 1871 Berkeley Events Inc.
In Toronto-Dominion Bank v. 1871 Berkeley Events Inc. (Ont CA, 2026) the Ontario Court of Appeal considered the insolvency provisions of R31(1) of the Bankruptcy and Insolvency General Rules, which upon filing an appeal which is grounded under BIA 193(e), also requires a leave to appeal application.
The court considers a motion to extend time to commence a leave to appeal application, here in this insolvency context:MOTION 1: EXTENSION OF TIME TO FILE A MOTION FOR LEAVE TO APPEAL
[7] An extension of the ten day timeline in r. 31(1) of the BIA Rules may be granted if the presiding judge is satisfied that the justice of the case requires it, after considering relevant factors, including: (1) a bona fide intention to appeal during the appeal period; (2) the length and explanation for the delay; (3) prejudice to the responding party; and (4) the merits of the proposed appeal: Shaver-Kudell Manufacturing Inc. v. Knight Manufacturing Inc., 2021 ONCA 202, 88 C.B.R. (6th) 1, at para. 11. I am not satisfied that the moving parties have met their onus of establishing that the justice of the case requires the extension.
[8] As stated, I am satisfied that the moving parties had an intention to appeal within the appeal period. However, both motions they bring are impeded by the fact that Mr. Wheler does not provide affidavit evidence in support of the relevant factual foundation for either motion, other than an affidavit that was prepared in the proceedings below. As such, the affidavit he provides does not address the factual foundation required to meet the legal tests for an extension or the requested stay of proceedings. The moving parties have therefore failed to provide a persuasive explanation for the delay, which is almost four times longer than the designated appeal period. Instead of providing evidence to justify the delay, Mr. Wheler relies primarily on bald assertions about unspecified errors caused by court staff. This is not a satisfactory explanation.
[9] The delay that has occurred has been prejudicial to the Receiver. This sale could be imperiled because of the delay. Indeed, the APS contains a condition precedent that is breached if an appeal or threatened appeal has been entered that prohibits or restricts the closing. Moreover, the motion judge found that Mr. Wheler’s conduct – specifically in making public confidential information about the price the Receiver was prepared to accept and the marketing details about the Property – will prejudice a future bidding process, if the proposed APS does not close and a re-listing becomes necessary. Meanwhile, the Receiver is carrying the ongoing costs of the Property until it is sold. There is ample prejudice caused by the delay.
[10] I also agree with the Receiver that the proposed motion for leave to appeal lacks merit. First, the moving parties would likely require leave to bring this appeal: see Marshallzehr Group Inc. v. La Pue International Inc., 2025 ONCA 124. Therefore, the test for leave to appeal BIA matters is relevant to my consideration of the merits of the appeal, even though I am not deciding a leave motion: see Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at paras. 18-22. Relevant leave considerations include whether the proposed appeal: (1) raises an issue that is of general importance to the practice in bankruptcy/insolvency matters or to the administration of justice as a whole; (2) is prima facie meritorious; and (3) would unduly hinder the progress of the bankruptcy and insolvency proceedings: Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, 115 O.R. (3d) 617, at para. 29.
[11] As is clear from my earlier comments, granting leave would unduly hinder the progress of bankruptcy and insolvency proceedings in this case (consideration #3). In my view, the proposed appeal does not raise issues of general importance in bankruptcy and insolvency law (consideration #1), and it is not meritorious on its face (consideration #2).
[12] The lack of merits in the moving parties’ proposed grounds of appeal can best be illustrated by grouping those grounds of appeal into two thematic categories: (a) the unfairness of the process below; and (b) attempts to reargue the motion below by identifying reasons why the sale is not provident, including conflicts of interest affecting the receivership process and irregularities in the valuation and marketing. The category (a) procedural fairness submission focuses primarily on the removal of the moving parties’ counsel. The motion record lacks supporting material or meaningful detail as to why the disqualification of counsel was unfair, which is the material issue. The moving parties also note that this issue is the subject of a separate action, raising concern that this proposed ground of appeal may be duplicative. Meanwhile, the category (b) submissions do not identify any legal errors or palpable and overriding errors of fact and they are not developed with any clarity, despite the moving parties’ onus. They simply represent the moving parties’ disagreement with the motion judge’s conclusions about the providence of the sale, which would be entitled to deference on appeal.
[13] Prejudice to the responding party caused by the delay and lack of merit in the proposed appeal can alone justify dismissing the extension. They do so in this case, in my view, even leaving aside the unsatisfactory explanation for the delay. The motion for an extension is therefore dismissed. . Gidda Estate v. Gidda
In Gidda Estate v. Gidda (Ont CA, 2025) the Ontario Court of Appeal dismissed a motion for an extension of time to file a BIA appeal [under BIA s.31(1)]:[6] On June 3, 2025, Ms. Saini attempted to file a notice of appeal of the Order. Since this is a bankruptcy matter, a ten-day filing deadline applied pursuant to r. 31(1) of the Bankruptcy and Insolvency General Rules, C.R.C., c. 368 (“BIA Rules”). It is not contested that her notice of appeal was more than two weeks late.
[7] Rule 31(1) of the BIA Rules and s. 187(11) of the Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, each provide me with discretion to extend the time to file a notice of appeal. The test to decide whether that discretion should be exercised is the same test employed for motions brought under r. 3.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, namely, whether it is in the interests of justice to do so: Comfort Capital Inc. v. Yeretsian, 2023 ONCA 282, 7 C.B.R. (7th) 17, at paras. 9-10; Ontario Wealth Management Corporation v. Sica Masonry and General Contracting Ltd., 2014 ONCA 500, 17 C.B.R. (6th) 91, at para. 26. The factors include: (i) an intention to appeal within the appeal period; (ii) the length of the delay in appealing and whether that delay is persuasively explained; (iii) the degree of prejudice to the responding party; and (iv) the merits of the proposed appeal: Enbridge Gas Distribution Inc. v. Froese, 2013 ONCA 131, 114 O.R. (3d) 636, at para. 15; Liu v. Chan, 2024 ONCA 699, at para. 16.
[8] I do not take issue with Ms. Saini’s claim that she formed the intention to appeal within the appeal period but mistakenly utilized the wrong procedure. Her explanation for the delay before filing the appeal is also understandable. As Trotter J.A. recognized in Liu, at para. 15, “deadlines are sometimes missed”. It is evident that her counsel did not appreciate the appeal deadline applicable in bankruptcy cases.
[9] It is nonetheless concerning that Ms. Saini has taken four months to bring this motion forward to be argued. She has not explained this delay, which I find to be relevant. This delay in advancing the extension motion is prejudicial to the bankrupt estate which cannot be wound up until the ownership of the property is finally settled. The process arising from the delay has increased the costs of the bankruptcy and inconvenienced Mr. Gidda’s creditors.
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[15] In these circumstances I would not exercise discretion to extend the time to appeal. Indeed, in my view the justice of the case requires that, as important as the right to appeal is, it should not be accommodated by an order extending the time in aid of an appeal that is entirely lacking in merit, after the moving party has already delayed the completion of the bankruptcy estate through the delay she has caused. There is no merit in doing so.
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