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Insolvency - BIA - Appeals (4). Heliotrope Investment Corporation v. 1073650 Ontario Inc.
In Heliotrope Investment Corporation v. 1073650 Ontario Inc. (Ont CA, 2024) the Ontario Court of Appeal dismissed an BIA s.193(e) leave for appeal motion, here in an insolvency receivership motion situation:[5] Mr. Beach filed the appeal from the receivership order as though that order could be appealed as of right. However, an order appointing a receiver under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (“BIA”) may not be appealed without leave by virtue of s. 193 of the BIA: Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, 115 O.R. (3d) 617, at para. 17. The BIA provisions govern the appeal rights, even though MNP was appointed as receiver under both the BIA and the Courts of Justice Act, R.S.O. 1990, c. C.43: Business Development Bank of Canada v. Astoria Organic Matters Ltd., 2019 ONCA 269, 69 C.B.R. (6th) 13, at para. 5.
[6] Recognizing this, Mr. Beach, now represented by counsel, acknowledges that he requires leave under s. 193(e) of the BIA for the appeal that he filed. He moves for leave and an extension of time within which to seek it. Heliotrope Investment Corporation (“Heliotrope”), which brought the motion to appoint the receiver, opposes the extension and the granting of leave. It brings its own motion contending that leave was required for the appeal (a point that is conceded) and that leave should not be granted.
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[8] The principles guiding consideration of a request for leave to appeal under s. 193(e) of the BIA were summarized in Pine Tree Resorts, Inc., at para. 29. The court is to consider whether the proposed appeal:a) raises an issue that is of general importance to the practice in bankruptcy/insolvency matters or to the administration of justice as a whole, and is one that this Court should therefore consider and address;
b) is prima facie meritorious, and
c) would unduly hinder the progress of the bankruptcy/insolvency proceedings. . AFC Mortgage Administration Inc. v. Sunrise Acquisitions (Elmvale) Inc.
In AFC Mortgage Administration Inc. v. Sunrise Acquisitions (Elmvale) Inc. (Ont CA, 2024) the Ontario Court of Appeal considered yet another of the BIA s.193 appeal route cases.
Here the court considers the BIA s.193 leave to appeal test:(2) Should leave to appeal be granted?
[32] The principles guiding the consideration of a request for leave to appeal under s. 193(e) of the BIA were summarized in Business Development Bank of Canada v. Pine Tree Resorts, Inc., 2013 ONCA 282, 115 O.R. (3d) 617, at para. 29. The court is to consider whether the proposed appeal:a) raises an issue that is of general importance to the practice in bankruptcy/insolvency matters or to the administration of justice as a whole, and is one that this Court should therefore consider and address;
b) is prima facie meritorious, and
c) would unduly hinder the progress of the bankruptcy/insolvency proceedings. . AFC Mortgage Administration Inc. v. Sunrise Acquisitions (Elmvale) Inc.
In AFC Mortgage Administration Inc. v. Sunrise Acquisitions (Elmvale) Inc. (Ont CA, 2024) the Ontario Court of Appeal considered yet another of the BIA s.193 appeal route cases:(1) Is leave to appeal required?
[16] The parties agree that the BIA governs the appeal rights in issue. A party seeking to appeal an order under the BIA may do so without leave if the appeal comes within one of the categories in ss. 193(a) through (d) of the BIA, which read as follows:(a) if the point at issue involves future rights;
(b) if the order or decision is likely to affect other cases of a similar nature in the bankruptcy proceedings;
(c) if the property involved in the appeal exceeds in value ten thousand dollars;
(d) from the grant of or refusal to grant a discharge if the aggregate unpaid claims of creditors exceed five hundred dollars [...] Any other appeal requires leave: s. 193(e).
[17] In my view, both the AVO and the SPO may be appealed only with leave.
[18] The Debtors’ arguments that the AVO is appealable as of right under ss. 193(a), (b) or (c) all fail in light of the decisions in 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, 369 D.L.R. (4th) 635; First National Financial GP Corporation v. Golden Dragon HO 10 Inc., 2019 ONCA 873, 74 C.B.R. (6th) 1; and Hillmount Capital v. Pizale, 2021 ONCA 364, 462 D.L.R. (4th) 228.
[19] The AVO authorizes and approves two sales and sets out the procedure for their completion. It does not affect future rights, only present rights; s. 193(a) is inapplicable: Bending Lake, at paras. 27-28.
[20] Section 193(b) is inapplicable because the AVO is not likely to affect other cases of a similar nature in the receivership. No other existing cases were referred to. Although the Debtors say they may raise the sequencing issue again when the Receiver proposes other sales, a party cannot “create a ‘case’ after the impugned order was made in order to invoke s. 193(b).” The sequencing argument was rejected at the time of the making of the receivership order which was not appealed: Bending Lake, at paras. 32, 41.
[21] Nor does s. 193(c) apply. The property involved in an appeal from the AVO does not involve more than $10,000, in the sense used in s. 193(c). The AVO converts one asset (land) into another (money). There is no evidence-based assertion of improvident sale, nor do the Debtors quarrel with the prices obtained, just the timing of the sales. Accordingly, the AVO does not put the value of the Debtors’ property into play or finally determine the economic interest of a claimant in the Debtors resulting in a gain or a loss. An order premised on the rejection of an argument that a sale should be postponed is not one that brings into play the value of the debtor’s property: see Bending Lake, at paras. 54, 59-60, 62, 64 and 69; First National, at para. 33; Hillmount, at para. 42.
[22] For similar reasons, the SPO is not an order that may be appealed without leave. The Debtors primary contention is that s. 193(c) applies to the appeal of the SPO. I disagree. Section 193(c) “does not apply to … orders concerning the methods by which receivers or trustees realize on an estate’s assets”: Bending Lake, at para. 54; Re Harmon International Industries Inc., 2020 SKCA 95, 81 C.B.R. (6th) 1, at paras. 31-35. The SPO is that type of order.
[23] I do not accept the argument that because the SPO included approval of the Stalking Horse Agreement as a step in a more extensive sales process, it no longer was an order concerning a method of realization. . Downing Street Financial Inc. v. 1000162497 Ontario Inc.
In Downing Street Financial Inc. v. 1000162497 Ontario Inc. (Ont CA, 2024) the Ontario Court of Appeal considered an appellate motion for directions, here regarding several procedural, appeal route and stay pending appeal aspects of the appeal:(3) Does this appeal fall within the categories of an automatic right of appeal to the Court of Appeal?
[11] The crux of the dispute between the parties is whether the appellants may appeal the AVO as of right under the BIA. Section 193 of the BIA provides:193 Unless otherwise expressly provided, an appeal lies to the Court of Appeal from any order or decision of a judge of the court in the following cases:
(a) if the point at issue involves future rights;
(b) if the order or decision is likely to affect other cases of a similar nature in the bankruptcy proceedings;
(c) if the property involved in the appeal exceeds in value ten thousand dollars;
(d) from the grant of or refusal to grant a discharge if the aggregate unpaid claims of creditors exceed five hundred dollars; and
(e) in any other case by leave of a judge of the Court of Appeal. [12] Section 195 of the BIA provides that an order subject to an appeal as of right under s.193 is automatically stayed on the filing of a notice of appeal.
[13] With respect to s. 193(a), the dispute in this appeal does not appear to involve future rights of the appellants. In 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, 396 D.L.R. (4th) 635, at para. 23, Brown J.A. affirmed that “future rights” are future legal rights, not procedural rights or commercial advantages or disadvantages that may accrue from the order challenged on appeal. They do not include rights that presently exist but that may be exercised in the future by those with an interest in the property (e.g., creditors, shareholders, and so forth). Subsections 193(b) and (d) do not appear to apply to the circumstances of this appeal.
[14] The parties focused their submissions on the application of s. 193(c), and whether the appellants’ assertion – that the property is worth far more than the offer accepted by the Receiver – meets the threshold of the case law interpreting the phrase “property involved in the appeal exceeds in value ten thousand dollars.”
[15] In Business Development Bank of Canada v. Pine Tree Resorts, Inc., 2013 ONCA 282, 115 O.R. (3d) 617, at para. 17, this court held that to allow an appeal as of right under s. 193(c) of the BIA every time property value exceeds $10,000 would be to permit an appeal as of right in almost every case. Later, in Bending Lake, this court held that this provision must focus rather on the value of the “loss” that results from or is put in jeopardy by the impugned order: see para. 64.
[16] In Bending Lake, this court considered whether s. 193(c) applied to an approval and vesting order where the debtor argued that the sale price achieved by the Receiver was less than what it should have been, resulting in a significant loss for the debtor’s shareholders. In determining that s. 193(c) did not apply, Brown J.A. noted that the allegations of improvident sale were procedural – it was a challenge to the method by which assets were sold and did not call into play the value of the debtor’s property. Brown J.A. considered that sufficient evidence needed to be adduced to call into play the value of the debtor’s property. Moreover, the mere fact that a stakeholder stood to suffer a loss, was not a sufficient basis for concluding that the sale would result in a loss exceeding $10,000.
[17] In Peakhill Capital Inc. v. 1000093910 Ontario Inc., 2024 ONCA 584, by contrast, this court upheld the dismissal of a receiver’s motion for an approval and vesting order, and instead approved the debtor’s motion to redeem the mortgages on the property. The Court found that the order under appeal resulted in proceeds of $23.788 million, while dismissing the Receiver’s AVO motion which, had it been approved, would have resulted in proceeds of $24.255 million. Accordingly, the impugned order in Peakhill brought “into play” a difference in the realized value of the debtor’s property in excess of $10,000 that entitled the debtor to appeal as of right under s.193(c) of the BIA: see para. 8. This court based its decision on the fact that the debtor in that case had a firm “cheque in hand” and clear evidence of the potential loss as a result of the impugned order.
[18] Similar principles appear applicable in this case. To trigger the automatic right of appeal under s. 193(c) of the BIA, the appeal must relate to a clear difference in value between the order under appeal and evidence in the record that a debtor could have obtained a higher value. On the whole, it is clear that the jurisprudence of this court has interpreted the scope of s. 193(c) narrowly, given the broad right to an automatic stay under s. 195 where the threshold of s. 193 is met: see Enroute Imports Inc. (Re), 2016 ONCA 247, 35 C.B.R. (6th) 1, at para. 5.
[19] The appellants do not take issue with this jurisprudence per se, although they see the case law as mixed on this question; relying, for example, on the reference in Trimor Mortgage Investment Corporation v. Fox, 2015 ABCA 44, 26 Alta. L.R. (6th) 291, at para. 10, that s.193(c) of the BIA refers to the amount of money “at stake” in an appeal. Rather, the appellants point to earlier assertions of the higher value of the properties at issue in this appeal, and an appraisal submitted during the receivership proceedings that the proper valuation of the properties is closer to $27 million.
[20] In light of this jurisprudence, and in particular the requirement of evidence of the purported loss, I conclude that the appeal does not meet the threshold in s. 193(c) of the BIA. The reference to the earlier letter of commitment (which Steele J. did not accept) or parts of the earlier record of the receivership proceedings, do not constitute sufficient evidence of a potential loss greater than $10,000 for purposes of the s.193(c) analysis. For example, in Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, 462 D.L.R. (4th) 228, at para. 57, Brown J.A. upheld the motion judge’s determination that two appraisals proffered by the party seeking to show a loss of over $10,000 pursuant to s. 193(c) of the BIA, were insufficient to prove the loss. In that case the appraisals referred only to the value of the property “as is” and not the value of the property in a finished state. In this case, there was no credible evidence before Steele J. which could establish that the transaction approved in the AVO represented a loss for the appellants.
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[24] The test for a stay of proceedings is well settled, based on the Supreme Court’s framework in RJR‑MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385. The test for lifting a stay pursuant to s. 195 of the BIA is adapted from this framework and was summarized by Brown J.A. in Grillone (Re), 2023 ONCA 844, 10 C.B.R. (7th) 209, at para. 35:[35] An applicant that seeks to cancel a BIA s. 195 stay bears the burden of establishing compelling reasons to support a cancellation: After Eight Interiors Inc. v. Glenwood Homes Inc., 2006 ABCA 121, 391 A.R. 202, at para. 5. The BIA s. 195 jurisprudence identifies several factors courts should consider when dealing with a request to lift an automatic stay:. The appellant’s litigation conduct, including whether the appellant is diligently prosecuting the appeal;
. The merits of the appeal;
. The relative prejudice to the parties of cancelling the stay. This typically involves applying a variation of the tripartite test in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 applied on stay applications, specifically whether: (i) there is a serious issue to be appealed; (ii) the applicants would suffer irreparable harm if the stay is not lifted; and (iii) the applicants would suffer greater harm than the respondents if the stay is not lifted;
. However, while all or part of the tripartite test may be relevant, the discretion granted by BIA s. 195 is broader. Accordingly, a contextual approach is appropriate that considers all the facts of the case, not merely those that engage the tripartite test, and the interests of justice generally. . Downing Street Financial Inc. v. 1000162497 Ontario Inc.
In Downing Street Financial Inc. v. 1000162497 Ontario Inc. (Ont CA, 2024) the Ontario Court of Appeal considered an appellate motion for directions, here regarding several procedural and appeal route aspect of the appeal.
Here the court notes that quashing an appeal lies only within the jurisdiction of a panel of the court:(1) Is the Notice of Appeal a nullity?
[9] The requested declaration by the Receiver could be interpreted as having the effect of quashing the appellants’ appeal. This is a remedy reserved for a panel of the Court of Appeal on a motion to quash, and lies outside the jurisdiction of a single judge of the Court of Appeal on a motion for directions or declaratory relief: see RREF II BHB IV Portofino, LLC v. Portofino Corporation, 2015 ONCA 906, 33 C.B.R. (6th) 9, at paras 5-6. I would decline to deal with this aspect of the requested relief, though I observe that it appears on its face that the appellants filed their notice of appeal within the 10-day period set out in the BIA. . Peakhill Capital Inc. v. 1000093910 Ontario Inc.
In Peakhill Capital Inc. v. 1000093910 Ontario Inc. (Ont CA, 2024) the Ontario Court of Appeal dismissed an insolvency (BIA) appeal.
Here the issue was the test on an appellate motion to vary interlocutory orders:[44] I will proceed on the basis that the analysis applicable to a request to vary or cancel a provisional enforcement order contains elements similar to those that govern a request to cancel or lift a BIA s. 195 automatic stay. Accordingly, in the present case, 255 bears the burden of establishing compelling reasons to support a variation or cancellation of Sutherland J.’s July 9, 2024, provisional enforcement order. I summarized those elements in Grillone (Re), 2023 ONCA 844, at para. 35:
The BIA s. 195 jurisprudence identifies several factors courts should consider when dealing with a request to lift an automatic stay:. The appellant’s litigation conduct, including whether the appellant is diligently prosecuting the appeal;
. The merits of the appeal;
. The relative prejudice to the parties of cancelling the stay. This typically involves applying a variation of the tripartite test in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 applied on stay applications, specifically whether: (i) there is a serious issue to be appealed; (ii) the applicants would suffer irreparable harm if the stay is not lifted; and (iii) the applicants would suffer greater harm than the respondents if the stay is not lifted;
. However, while all or part of the tripartite test may be relevant, the discretion granted by BIA s. 195 is broader. Accordingly, a contextual approach is appropriate that considers all the facts of the case, not merely those that engage the tripartite test, and the interests of justice generally. . Cardillo v. Medcap Real Estate Holdings Inc.
In Cardillo v. Medcap Real Estate Holdings Inc. (Ont CA, 2024) the Ontario Court of Appeal considered whether the BIA s.193 decision as to whether an appeal was 'as of right' or required leave, could be made by a single Court of Appeal judge or a panel:[1] In this motion, the moving parties/appellants (the “Cardillo Parties”) asked this court to review a decision made by a single judge of this court. The chambers judge allowed the motion brought by the Trustee in Bankruptcy of Medcap Real Estate Holdings (“Medcap”), B. Riley Farber Inc. (the “Trustee”), holding that the Cardillo Parties do not enjoy an automatic right of appeal to this court from the decision of Kimmel J., under ss. 193(a)-(d) of the Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3 (“BIA”), and denying leave to appeal pursuant to s. 193(e) of the BIA.
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DECISION BELOW
[11] The chambers judge allowed the Trustee’s motion, finding that there was no automatic right of appeal and denying the Cardillo Parties leave to appeal.
[12] The chambers judge found that Kimmel J. had simply directed where the adjudication of certain rights should take place, and that this was a procedural determination. He found that the case law was clear that there is no right of appeal in s. 193(a) and (c) from procedural determinations: Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, 115 O.R. (3d) 617, at paras. 15, 18; 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, 369 D.L.R. (4th) 635, at paras. 20-23, 54-58.
[13] The chambers judge found that there is well-established jurisprudence accepting that a single judge has authority to determine whether a party has a right of appeal under ss. 193(a)-(d) of the BIA or whether leave is required under s. 193(e), and, if leave is required, whether it should be granted: see e.g., Pine Tree Resorts; Robson (Re) (2002), 2002 CanLII 53241 (ON CA), 33 C.B.R. (4th) 86 (Ont. C.A.). He rejected the Cardillo Parties’ assertion that a three-judge panel was required pursuant to r. 61.16(2.2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and s. 7(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). Section 193(e) of the BIA explicitly grants a single judge the authority to grant or deny leave to appeal, while r. 61.16(2.2) of the Rules (and s. 7(3) of the CJA) requires that a motion in this court for an order that finally determines an appeal, other than an order dismissing the appeal on consent, must be heard by a three-judge panel. The chambers judge found that the doctrine of paramountcy operates to resolve the conflict between these provisions in favour of the federal BIA.
[14] The chambers judge further found that determining whether there is a right of appeal under ss. 193(a)-(d) of the BIA is a necessary preliminary step in the judicial process of deciding whether to exercise the statutory authority conferred by s. 193(e) on a single judge to grant leave.
[15] Finally, the chambers judge denied leave to appeal. He found that the appeal did not raise any issue of general importance to the practice of bankruptcy or insolvency matters, that the proposed appeal lacked merit, and that it would hinder the progress of the bankruptcy proceedings.
ANALYSIS
[16] The Cardillo Parties raise two main issues on this motion: first, whether the chambers judge was correct that a single judge can make an order that an appeal is not of right but rather requires leave and then go on to deny leave; and second, whether it was procedurally unfair that the chambers judge denied leave to appeal without affording the Cardillo Parties an opportunity to have a leave motion.
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[24] It is well established that, on a panel review of the order of a single judge pursuant to s. 7(5) CJA, the panel may interfere with the order if the chambers judge failed to identify the applicable principles, erred in principle or reached an unreasonable result: DeMarco v. Nicoletti, 2017 ONCA 417, at para. 3; Yaiguaje v. Chevron Corporation, 2017 ONCA 827, 138 O.R. (3d) 1, at para. 21; Struik v. Dixie Lee Food Systems Ltd., 2018 ONCA 22, at paras. 5-6. Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, 462 D.L.R. (4th) 228, at para. 18.
[25] None of these grounds exist here.
[26] In the course of extensive and careful reasons, the chambers judge addressed every ground raised by the Cardillo Parties. He specifically considered whether his decision would “finally determine” the appeal and found that it did not, relying on the clear provisions of s. 193(e) of the BIA. As such, he found that an order denying leave to appeal under s. 193(e) of the BIA would not fall within the language of r. 61.16(2.2). Moreover, as he found, even if it did, r. 61.16(2.2) could not be given effect in the circumstances due to the constitutional doctrine of paramountcy, which he referred to as the “more important reason” that r. 61.16(2.2) cannot affect the authority of a single judge under s. 193 of the BIA. There is no error in principle with these findings.
[27] The fact that the issue of leave was raised via a challenge to the asserted right of appeal, rather than by way of a motion for leave to appeal, does not affect a single judge’s authority to make a determination of whether leave should be granted. That decision is still made pursuant to s. 193(e) of the BIA and therefore any conflict with r. 61.16.(2.2) is resolved in favour of the federal BIA. . Peakhill Capital Inc. v. 1000093910 Ontario Inc.
In Peakhill Capital Inc. v. 1000093910 Ontario Inc. (Ont CA, 2023) the Court of Appeal considers whether a BIA appeal fell under s.193(c) ["the property involved in the appeal exceeds the value of $10,000"], and thus did not require leave to appeal:Discussion
[25] The Debtor’s primary position on this motion is that it is entitled to an automatic right of appeal under s. 193(1)(c) of the BIA. In the alternative, it requests leave to appeal under s. 193(1)(e) and a stay pending appeal under s. 195.
[26] Section 193 of the BIA provides, in relevant part, as follows:193 Unless otherwise expressly provided, an appeal lies to the Court of Appeal from any order or decision of a judge of the court in the following cases:
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(c) if the property involved in the appeal exceeds the value of $10,000;
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(e) in any other case by leave of a judge of the Court of Appeal. [27] The Debtor acknowledges that decisions from this court have interpreted s. 193(c) narrowly and restricted the automatic right of appeal so that it does not apply to decisions or orders that: are procedural in nature; do not bring the value of the debtor’s property into play; or do not result in a loss of more than $10,000: e.g. Cardillo v. Medcap Real Estate Holdings Inc., 2023 ONCA 852.
[28] The Debtor also acknowledges that, on its face, the Order appears to be procedural in that it simply approves a sale process.
[29] In that respect, because the Order simply approves a sale process, it is similar to the order at issue in Re Harmon International Industries Inc., 2020 SKCA 95, a decision on which the Receiver relies.
[30] In Re Harmon, the order at issue authorized a sale process that included a requirement to list one property for $3,800,000. The Saskatchewan Court of Appeal found that all the order in question did was “establish a process for the sale of the property”, with future transactions still requiring court approval. As a result, the Court found that any claim of loss was without foundation and that the order did not “directly have an impact on the proprietary or monetary interests of Harmon or crystallize any loss at this time.” The order therefore “concern[ed] a matter of procedure only” and was “merely an order as to the manner of sale”. As “no value was in jeopardy”, leave to appeal was required under s. 193(e) of the BIA.
[31] However, the Debtor submits that in assessing whether an automatic right of appeal exists under s. 193(c), the court must “make a critical examination of the effect of the order sought to be appealed.” In doing so, the court must undertake a fact-specific, evidence-based inquiry to “discern the operative effect of the order … does the order result in a loss or gain, or put in jeopardy value of property, in excess of $10,000”: Comfort Capital Inc. v. Yeretsian, 2023 ONCA 282 at paras. 20 and 21, citing Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, 462 D.L.R. (4th) 228 at paras. 35, 42 and 45.
[32] The Debtor asserts that in refusing to hear its cross-motion and also making the Order approving the Bidding Procedures and Stalking Horse APS but failing to terminate the original APS, the motion judge both left the original APS in place and also deprived it of the right to complete, or obtain an order for specific performance of, the original APS that had a fixed value of $31,000,000. The Debtor contends that by adopting the Bidding Procedures and Stalking Horse APS, which sets a floor price of $24,455,000 based on an offer from 255 (the purchaser under the original APS), the Order puts in play, and jeopardizes, the value of the Property for an amount in excess of $10,000. The Order is thus not merely procedural, it also affects substantive rights.
[33] The Receiver responds that the Order had no substantive effect on the original APS. Because of the receivership Order, the Debtor had no ability to complete the APS. As was the case in Re Harmon, the Order did nothing more than establish the sale process for the Property. It did not crystalize any loss and was merely procedural in its effect.
[34] I agree that, on their face, the motion judge’s decision not to entertain the Debtor’s cross-motion (the “refusal decision”) and the Order both appear to be procedural in nature. Nonetheless, I conclude that, in the particular circumstances of this case, at least the refusal decision, although procedural in nature, also had the effect of putting in play, and jeopardizing, the value of property by an amount exceeding $10,000.
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