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Insolvency (BIA) - Appeals (7). Aquino (Re)
In Aquino (Re) (Ont CA, 2026) the Ontario Court of Appeal dismissed a BIA insolvency appeal, this brought against two orders: the first "adjudging the appellant bankrupt and appointing [a] trustee of his bankrupt estate" and the second "determining that a pre-existing Mareva injunction, granted in litigation that resulted in a substantial judgment against the appellant (the “TUV litigation”), remained and continued in full effect until further order of the court (the “Mareva Order”)."
Here the court considers the BIA s.193(c) appeal route:[20] The appellant relies on Royal Bank v. Bodanis, 2020 ONCA 185, 78 C.B.R. (6th) 165, which held that a bankruptcy order was appealable as of right under s. 193(c) of the BIA. That section provides for an appeal as of right “if the property involved in the appeal exceeds in value ten thousand dollars”. Nordheimer J.A., sitting as a single judge, contrasted a bankruptcy order with an order appointing a receiver over the property of a debtor, which can only be appealed with leave. He pointed to differences in the power of a bankruptcy trustee, compared to a receiver, to dispose of the bankrupt’s property without court approval: at paras. 5 to 6.
[21] The Monitor submits that a bankruptcy order is not appealable without leave. It submits that Bodanis was incorrectly decided and has been indirectly overturned by North House Foods Ltd. (Re), 2025 ONCA 563. Although North House does not deal with a bankruptcy order[1] nor does it mention, let alone question, the correctness of Bodanis, the Monitor stresses the restrictive approach applied in North House to the interpretation of what constitutes an appeal as of right under s. 193(c). The Monitor says the restrictive approach is inconsistent with the result in Bodanis.
[22] I disagree with the Monitor’s position that the restrictive approach, properly understood, undermines the correctness of the conclusion in Bodanis. The restrictive approach referred to in North House is not new. Rather, and as noted in North House, it has long been part of our court’s jurisprudence: see 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, 347 O.A.C. 226, at para. 53; First National Financial GP Corporation v. Golden Dragon HO 10 Inc., 2019 ONCA 873, 74 C.B.R. (6th) 1, at para. 15 (both cases predate Bodanis). The restrictive approach was noted in Bodanis, but did not entail the conclusion that the bankruptcy order was not appealable as of right. In Bernard v. Laurentian Bank of Canada, 2025 QCCA 1145, the Quebec Court of Appeal declined to decide whether it would follow the restrictive approach. But it held that even if the restrictive approach is followed, an appeal from the grant of a bankruptcy order was as of right under s. 193(c): at para. 8.
[23] The conclusion that the Bankruptcy Order is appealable as of right under s. 193(c) of the BIA follows from a consideration of the text, context and purpose of s. 193(c), which are the touchstones of statutory interpretation: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at para. 11; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 118.
[24] The purpose of the BIA has led this court to endorse the restrictive approach to s. 193(c). Appeals as of right attract an automatic stay of proceedings, and there is a need to address bankruptcy proceedings expeditiously wherever possible. Accordingly, an appellant must meet three criteria to fit under s. 193(c). The appeal must be more than procedural in nature, involve the value of the debtor’s property, and result in a loss to the appellant: North House, at paras. 21, 28, citing Bending Lake at para. 53.
[25] The BIA specifies the effect of the Bankruptcy Order. Section 71 of the BIA states: “On a bankruptcy order being made …a bankrupt ceases to have any capacity to dispose of or otherwise deal with their property, which shall, subject to this Act and to the rights of secured creditors, immediately pass to and vest in the trustee named in the bankruptcy order…”.[2]
[26] Bearing in mind that effect, the appeal of the Bankruptcy Order, which seeks to reverse its effect, fits within the plain wording of the text of s. 193(c) of the BIA read in in light of its context and the factors made relevant by a consideration of purpose. The Bankruptcy Order stripped the appellant of any capacity to dispose of or deal with any or all of his property, and it vested that property in B. Riley Farber Inc. as trustee of his bankrupt estate. It was clearly more than a procedural order. It directly brought into play the value of the appellant’s property, and it caused a loss to the appellant by vesting the property in someone else. No one disputes that the property involved, which the Bankruptcy Order vested out of the appellant’s ownership in favour of the bankruptcy trustee, exceeds $10,000 in value.
[27] Another element of the context supports this interpretation. Section 193(d) provides that any decision granting or refusing to grant a discharge from bankruptcy is appealable as of right if the unpaid claims of creditors exceed $500. It would be strange if an order placing someone in bankruptcy required leave to appeal, while orders about exiting bankruptcy are appealable as of right.
[28] Accordingly, I conclude that the Bankruptcy Order is appealable as of right. . Unity Health Toronto v. 2442931 Ontario Inc. [CA has jurisdiction to panel review motion orders only in 'exceptional circumstances']
In Unity Health Toronto v. 2442931 Ontario Inc. (Ont CA, 2026) the Ontario Court of Appeal considered a BIA s.193(c) [appeal as of right] versus s.193(e) [leave to appeal required] issue.
The court considered the CA's jurisdiction under CJA s.7(5) ['panel set aside of motion'], here in this BIA insolvency context:1. Jurisdiction of the court
[29] As indicated above, Unity Health takes the position that a panel of this court does not have jurisdiction to review the chambers judge’s decision. I only agree with Unity Health in part. As I explain below, a panel of this court has jurisdiction to review the chambers judge’s determination that there is no appeal as of right under s. 193 of the BIA. However, a panel of this court only has jurisdiction to review the chambers judge’s decision denying leave under s. 193(e) of the BIA in exceptional circumstances.
[30] Section 193 of the BIA sets out the circumstances under which an appeal lies to this court from a decision under the Act. Sections 193(a) to (d) provide a direct right of appeal in enumerated circumstances. Section 193(e) provides for a right of appeal “in any other case by leave of a judge of the Court of Appeal”. A single judge of this court can decide the issue of whether there is an appeal as of right under ss. 193(a) to (d) of the BIA on a motion for directions: Cardillo v. Medcap Real Estate Holdings Inc., 2023 ONCA 852, at para. 25, motion to review dismissed, 2024 ONCA 278; Global Royalties Limited v. Brook, 2016 ONCA 50, at para. 17.[4] A single judge can also decide a motion for leave to appeal as directed by the language of s. 193(e) of the BIA.
[31] Pursuant to s. 7(5) of the Courts of Justice Act, a panel of this court has jurisdiction to review the decision of a single judge deciding a motion for directions regarding the issue of whether an appeal can proceed as of right under ss. 193(a) to (d) of the BIA: Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, 462 D.L.R. (4th) 228, at para. 18. However, a panel reviewing such a decision owes deference to the chambers judge’s determination that leave is required. The panel will only interfere if the chambers judge failed to identify the applicable principles, erred in principle or reached an unreasonable result: Hillmount, at para. 18.
[32] In contrast, as a general proposition, the decision of a single judge on a leave motion under s. 193(e) of the BIA is not subject to review by a panel of this court: Business Development Bank of Canada v. Aventura II Properties Inc., 2016 ONCA 408, 132 O.R. (3d) 159, at paras. 3-4, leave to appeal refused, [2016] S.C.C.A. No. 280; Ting (Re), 2022 ONCA 258, 98 C.B.R. (6th) 199, at paras. 2-3. Despite this jurisdictional constraint, however, a panel of this court may review the decision of a single judge dismissing a motion for leave to appeal under s. 193(e) of the BIA in very exceptional circumstances. In McEwen (Re), 2020 ONCA 511, 452 D.L.R. (4th) 248, the court held that a panel may review such a decision where the chambers judge “mistakenly declines jurisdiction”, such as where the chambers judge did not reach a decision “on the merits of [the] leave to appeal motion”: at paras. 70-71.
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3. There is no basis to review the chambers judge’s denial of leave
[45] The Agent submits that the chambers judge erred in refusing leave to appeal from the Lift Stay Order pursuant to s. 193(e) of the BIA. As addressed above, the panel may only assume jurisdiction to review the chambers judge’s decision denying leave in exceptional circumstances.
[46] As indicated above, in McEwen, at paras. 70-71, the court described the exceptional circumstances that might justify intervention by a panel as including where the chambers judge “mistakenly declines jurisdiction”, for instance if the chambers judge did not reach a decision “on the merits of [the] leave to appeal motion”.
[47] There is no basis for making such a finding in this case. In dismissing leave to appeal, the chambers judge articulated the well-established test for leave to appeal under s. 193(e) of the BIA set out in Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, 115 O.R. (3d) 617, at para. 29, which requires the court to look at 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. [48] The chambers judge then applied each of these factors to the circumstances of this case. He found that the proposed appeal does not raise issues of general importance because it concerns “a decision about specific contracts in a unique set of circumstances”. He addressed the merits of the proposed appeal, finding that the Agent “would face a difficult task in convincing a panel of this court to interfere with [the motions judge’s] decision to lift the stay”. He also addressed the impact that the appeal would have on the progress of the receivership, concluding that delay in terminating the Project Agreement would delay the progress of the insolvency proceedings, given that the Project Agreement is ProjectCo’s only asset.
[49] While the Agent may not agree with the chambers judge’s analysis and may be persuaded that it contains serious errors, it has not demonstrated that the chambers judge declined jurisdiction in the sense that he applied the wrong test or that he did not decide the issue of leave on the merits. On the contrary, the chambers judge clearly decided not to grant leave based on an application of the correct test to the circumstances of the case.
[50] The Agent argues that the chambers judge failed to recognize that his refusal to grant the appeal will render its appeal from the Dismissal Order moot. In other words, if Unity Health is allowed to terminate the Project Agreement, the Agent will no longer be able to pursue any rights it claims as under the Project Agreement. The Agent submits that the chambers judge’s alleged failure to recognize this issue amounts to the type of exceptional circumstances that warrants the panel’s intervention. I disagree. Even if the chambers judge had failed to address an issue raised by the Agent, that does not amount to declining jurisdiction or a failure to apply the correct test. In any event, while the chambers judge did not address this issue explicitly in his reasons for dismissing leave to appeal, it is evident from his reasons as a whole that he was aware of this issue. Specifically, when describing the parties’ positions on the motion, the chambers’ judge explicitly recited the Agent’s concern “that if it cannot appeal the Lift Stay Order, its appeal of the Dismissal Order will be rendered moot because the respondent will terminate the Project Agreement once the stay is lifted and any claim to the TIC payment will be extinguished.”
[51] There are no exceptional circumstances that would justify this panel’s interference. . Unity Health Toronto v. 2442931 Ontario Inc.
In Unity Health Toronto v. 2442931 Ontario Inc. (Ont CA, 2026) the Ontario Court of Appeal considered a BIA s.193(c) [appeal as of right] versus s.193(e) [leave to appeal required] issue:2. The motion judge did not err in finding that leave was required
[34] The Agent submits that the motion judge erred in finding that it does not have a right to appeal the Lift Stay Order. I disagree.
[35] The Agent relies on s. 193(c) of the BIA in support of its position that it can appeal the Lift Stay Order as of right. Section 193(c) of the BIA provides that an appeal lies to the Court of Appeal from an order or decision “if the property involved in the appeal exceeds in value ten thousand dollars”.
[36] As recognized by the chambers judge, this right of appeal has consistently been interpreted narrowly: North House Foods Ltd. (Re), 2025 ONCA 563, 20 C.B.R. (7th) 1, at para. 28; Hillmount, at para. 28; Enroute Imports Inc. (Re), 2016 ONCA 247, 35 C.B.R. (6th) 1, at para. 5; Romspen Investment Corporation v. Courtice Auto Wreckers Limited, 2017 ONCA 301, 138 O.R. (3d) 373, at para. 22, leave to appeal refused, [2017] S.C.C.A. No. 238. In Enroute, at para. 5, the court explained that the narrow approach derives from the “broad nature” of the automatic stay imposed by s. 195 of the BIA that applies to appeals to this court under the Act.
[37] Based on this narrow approach, this court has identified three types of orders that do not fall within the scope of the right of appeal under s. 193(c), namely orders that: (1) are procedural in nature, (2) do not bring into play the value of the debtor’s property, or (3) do not result in a loss: North House Foods, at para. 28, citing 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, 369 D.L.R. (4th) 635, at para. 53; Hillmount, at para. 25.
[38] In this case, the chambers judge explicitly set out these principles. He then carefully reviewed the nature and effect of the Lift Stay Order and concluded that it was procedural in nature, that it did not bring into play the value of the property and that it did not directly result in a loss. The chambers judge did not fail to identify the applicable principles, err in principle or reach an unreasonable result. On the contrary, his reasoning and conclusion were rooted in the applicable legal principles and the record.
[39] First, on its face, as found by the chambers judge, there is no doubt that the Lift Stay Order is procedural in nature. It simply lifts the stay of proceedings for the purpose of allowing Unity Health to terminate the Project Agreement. The Lift Stay Order does not terminate the Project Agreement. It restores Unity Health’s power to do so. That power ultimately flows from the Project Agreement itself, not from the Lift Stay Order.
[40] Second, I see no error in the chambers judge’s determination that the Lift Stay Order did not bring into play the value of property. In reaching this conclusion, the chambers judge considered the nexus between lifting the stay and any loss the Lenders may suffer. He found that there was no direct nexus because, even if the Agent succeeded in appealing the Lift Stay Order, “[a]t best, the [Agent] would have the opportunity to sue [Unity Health] for the TIC payment. The order’s effect, then, is to deny the [Agent] the chance to try to obtain the TIC payment, not to deny the [Agent] the actual TIC payment due” (emphasis in original). I see no error in this reasoning. The motion judge’s Dismissal Order found that the Lenders did not have standing to seek the TIC Payment. Even if the Agent succeeded in appealing this determination, it would still have to establish that Unity Health had an obligation to make the TIC Payment. Accordingly, there is a far distance between keeping the stay in place and the Lenders receiving the TIC Payment.
[41] Third, for similar reasons, I see no error in the chambers judge’s conclusion that the Lift Stay Order does not result in a loss. Even if the Agent succeeded in appealing the Lift Stay Order, it would also have to succeed in appealing the Dismissal Order and in establishing its entitlement to the TIC Payment as well as the quantum of the payment. As the chambers judge stated, relying on Hillmount, at para. 42, “a determination of whether an order falls under s. 193(c) requires a critical examination of the evidence – bald assertions of a $90 million loss are not enough.”
[42] The Agent argues that the chambers judge failed to appreciate that the Lift Stay Order effectively renders its appeal from the Dismissal Order moot. If Unity Health terminates the Project Agreement in accordance with the Lift Stay Order, the Agent will no longer be able to pursue the TIC Payment, which the Agent claims is worth approximately $90 million. There is no basis for concluding that the chambers judge did not appreciate the effect of his order on the Agent’s other appeal. More importantly, the impact of the Lift Stay Order on the other appeal does not transform what was clearly a procedural order into an order involving property that exceeds $10,000 in value. As recognized by the chambers judge, even if the Agent were to succeed on the other appeal and were permitted to pursue a claim against Unity Health for the TIC Payment, it would simply have a “chance” of success.
[43] The Agent also argues that the chambers judge erred when he used the word “directly” in stating that the Lift Stay Order did not “directly put any property of the debtor into play” or “directly result in loss” (emphasis added). The Agent submits that the chambers judge improperly imported a requirement that the loss be direct or that the appeal directly involve the debtor’s property, and that this was an error in principle. However, the motion judge’s use of the word “directly” is supported by this court’s case law. In Enroute, at para. 5, this court stated that an appeal under s. 193(c) of the BIA must “directly involve property exceeding $10,000” (emphasis added); see also Proex Logistics Inc. (Re), 2025 ONCA 832, at para. 49; Romspen, at para. 22; Crate Marine Sales Limited (Re), 2016 ONCA 140, 33 C.B.R. (6th) 169, at para. 7. In any event, the Agent’s focus on the use of the word “directly” is misplaced. It is evident that the chambers judge made no errors in principle nor is his decision unreasonable. He had proper regard to the applicable legal principles requiring him to apply the right of appeal under s. 193(c) narrowly, which he did.
[44] Accordingly, I see no basis for interfering with the chambers judge’s conclusion that there is no direct right of appeal from the Lift Stay Order. . Cameron Stephens Mortgage Capital Ltd. v. 2011836 Ontario Corp. [BIA s.193c AND test for leave under s.193e]
In Cameron Stephens Mortgage Capital Ltd. v. 2011836 Ontario Corp. (Ont CA, 2026) the Ontario Court of Appeal dismissed a BIA insolvency appeal, here brought against the granting to the receiver (on motion) of "a declaration that the appeal cannot be brought as of right under s. 193 of the Bankruptcy and Insolvency Act".
The central issue is whether the involved appeals require leave to appeal [BIA s.193(e)] or not [here, BIA s.193(c)]:Appeal rights under the BIA
[21] Section 193 of the BIA sets out the circumstances under which an appeal lies to this court from a decision under the Act. Sections 193(a) to (d) give parties a direct right of appeal in enumerated circumstances, including, pursuant to s. 193(c), “if the property involved in the appeal exceeds in value ten thousand dollars”. Section 193(e) provides for a right of appeal “in any other case by leave of a judge of the Court of Appeal”.
[22] In addition, s. 195 BIA provides for an automatic stay of all proceedings under an order or judgment under appeal. The court has the power to lift an automatic stay under s. 195. In addition, s. 195 does not apply to orders subject to a motion for leave to appeal, unless and until leave is granted or unless the court grants a stay on a motion brought by the proposed appellant: North House Foods Ltd. (Re), 2025 ONCA 563, 20 C.B.R. (7th) 1, at para. 21.
....
Issue 1: Is there a direct right of appeal?
[23] Mr. Wang relies on s. 193(c) of the BIA in support of his position that he can appeal the order as of right. Again, s. 193(c) of the BIA provides that an appeal lies to the Court of Appeal from an order or decision “if the property involved in the appeal exceeds in value ten thousand dollars”.
[24] This right of appeal has consistently been interpreted narrowly: North House Foods, at para. 28; Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, 462 D.L.R. (4th) 228, at para. 28; Enroute Imports Inc. (Re), 2016 ONCA 247, 35 C.B.R. (6th) 1, at para. 5; and Romspen Investment Corporation v. Courtice Auto Wreckers Limited, 2017 ONCA 301, 138 O.R. (3d) 373, at para. 22, leave to appeal refused, [2017] S.C.C.A. No. 238. This narrow approach derives from the “broad nature” of the automatic stay imposed by s. 195(c) of the BIA to ensure consistency with “the needs of modern, ‘real-time’ insolvency litigation”: 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, 369 D.L.R. (4th) 635, at para. 53.
[25] Based on this narrow approach, this court has identified three types of orders that do not fall within the scope of the right of appeal under s. 193(c), namely orders that: (1) are procedural in nature, (2) do not bring into play the value of the debtor’s property, or (3) do not result in a loss: North House Foods, at para. 28, citing Bending Lake, at para. 53; Hillmount, at para. 25. The court has also consistently held that any loss of $10,000 or more must be “direct”: Enroute, at para. 5; Proex Logistics Inc. (Re), 2025 ONCA 832, at para. 49; Romspen, at para. 22; and Crate Marine Sales Limited (Re), 2016 ONCA 140, 33 C.B.R. (6th) 169, at para. 6.
[26] In this case, Mr. Wang suggests that the motion judge’s orders will result in a loss of more than $10,000 because the sales prices are significantly lower than the sales prices agreed to in agreements of purchase and sale that predated the receivership. This is not sufficient to meet the requirements of s. 193(c).
[27] In order to show that the orders will result in a loss of more than $10,000, Mr. Wang would have to demonstrate that the appeal relates 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”: Proex, at para. 52. He has failed to do so. Other than his reliance on a chart setting out pre-receivership prices, Mr. Wang has provided no compelling evidence that the prices obtained by the Receiver could have been higher. For example, there is no evidence of alternative offers or no evidence to demonstrate that the sales are improvident. Mr. Wang’s suggestion that the appeal arises from a loss is therefore entirely speculative.
[28] Accordingly, I see no basis for finding that Mr. Wang has established that his proposed appeal falls within the scope of s. 193(c). Therefore, there is no appeal as of right.
Issue 2: Should leave to appeal be granted?
[29] As set out in Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, 115 O.R. (3d) 617, at para. 29, in deciding whether to grant leave, the court looks at 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 bankruptcy/insolvency proceedings. [30] I am not satisfied that Mr. Wang’s proposed appeal meets any of these factors:(a) The proposed appeal does not raise any issues of general importance. It is entirely focused on whether the motion judge erred in approving sales at prices below the pre-receivership prices in the circumstances of this case.
(b) I see no merit to the proposed appeal. First and foremost, Mr. Wang is essentially seeking to relitigate issues that have already been decided by the court below multiple times. Most recently, Kimmel J. approved the minimum pricing proposed by the Receiver. Mr. Wang did not seek to appeal that order. His proposed appeal therefore appears to be a collateral attack on earlier court orders. In any event, this court owes significant deference to the motion judge’s decision approving the sales of the two properties: York (Regional Municipality) v. Thornhill Green Co-operative Homes Inc., 2010 ONCA 393, 68 C.B.R. (5th) 73, at para. 20, leave to appeal refused, [2010] S.C.C.A No. 320; Marchant Realty Partners Inc. v. 2407553 Ontario Inc., 2021 ONCA 375, 90 C.B.R. (6th) 39, at para. 18. This court’s deference on appeal interacts with the reluctance of commercial court judges to second-guess the business decisions of a court-appointed receiver: York, at para. 20, citing Regal Constellation Hotel Ltd. (Re) (2004), 2004 CanLII 206 (ON CA), 71 O.R. (3d) 355 (C.A.), at paras. 22-23; Marchant Realty, at para. 19. The court will not interfere with the receiver’s decisions if they are within the broad bounds of reasonableness and the receiver proceeded fairly, having considered the interests of all stakeholders: Ravelston Corp. (Re) (2005), 24 C.B.R. (5th) 526 (Ont. C.A.), at para. 40; Marchant Realty, at para. 19. Mr. Wang has identified no errors other than his belief that the Receiver should have been able to achieve higher prices more consistent with the pre-receivership pricing. Mr. Wang’s chances of success on appeal are therefore very low.
(c) Granting leave to appeal will unduly prejudice the progress of the receivership, given that this would lead to an automatic stay. The units are ready for sale. The two agreements of purchase and sale may be in jeopardy with the uncertainty and delay caused by an appeal. Other potential sales may be in jeopardy or delayed. In addition, the interest on the amount owed to Cameron is accruing at a rate of approximately $400,000 per month, which reduces Cameron’s ability to recover the full amount owing with the passage of time. . Royal Bank of Canada v. 1434399 Ontario Inc. [leave to appeal]
In Royal Bank of Canada v. 1434399 Ontario Inc. (Ont CA, 2025) the Ontario Court of Appeal granted a motion "seeking an order declaring that the responding party, 1434399 Ontario Inc. (“143”), has no right of appeal under ss. 193(a) or (c) of the Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3 (the “BIA”) from three orders of Sheard J., dated May 27, 2025: an approval and vesting order, an ancillary order, and a discharge order".
Here the court considers leave to appeal under the BIA:[21] The receiver opposes the grant of leave on the basis that 143 did not request leave in its notice of appeal, as required by r. 31(2) of the Bankruptcy and Insolvency General Rules, C.R.C., c. 368 1 (the “BIA Rules”). This court has stated that leave should generally be refused where it is not sought in the notice of appeal: North House Foods, at para. 43. However, in rare circumstances, based on the combined operation of r. 3 of the BIA Rules and r. 61.08(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, an order may be granted to amend a notice of appeal to seek leave nunc pro tunc: North House Foods, at paras. 44-46.
[22] I do not think this is the rare case in which such an order should be made. But I add that I would not have granted leave even if it had properly been sought. Applying the test from Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, 115 O.R. (3d) 617, at para. 29, this appeal concerns a fact-based matter rather than a matter of general importance to the law. 143 was unsuccessful in its attempt to redeem the mortgage for less than the amount owing. It had ample time to make an offer if it wished to do so – some 20 months – and it failed to do so. Finally, this matter has been subject to considerable delay – it proved difficult to sell the property and for a variety of reasons the court’s processes did not work efficiently. There is no basis to delay things further by granting leave to appeal. . Royal Bank of Canada v. 1434399 Ontario Inc.
In Royal Bank of Canada v. 1434399 Ontario Inc. (Ont CA, 2025) the Ontario Court of Appeal granted a motion "seeking an order declaring that the responding party, 1434399 Ontario Inc. (“143”), has no right of appeal under ss. 193(a) or (c) of the Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3 (the “BIA”) from three orders of Sheard J., dated May 27, 2025: an approval and vesting order, an ancillary order, and a discharge order".
Here the court considers the BIA s.193(c) ['under $10,000'] appeal route:There is no right of appeal under s. 193(c)
[15] Section 193(c) provides a right of appeal “if the property involved in the appeal exceeds in value ten thousand dollars”.
[16] 143 focuses on the $10,000 threshold, arguing that it is clearly surpassed by the value of the property in this case and the loss it says it will incur if the sale is completed.
[17] However, it is well established that the right of appeal under s. 193(c) must be construed narrowly to avoid undermining the stay imposed by s. 195: see e.g., Cosa Nova Fashions Ltd. v. The Midas Investment Corporation, 2021 ONCA 581, 95 C.B.R. (6th) 240, at para. 22, citing First National Financial GP Corporation v. Golden Dragon HO 10 Inc., 2019 ONCA 873, 74 C.B.R. (6th) 1, at para. 15; Bending Lake, at para. 53. In Bending Lake, Brown J.A. held that s. 193(c) does not provide for an appeal as of right from: “(i) orders that are procedural in nature, (ii) orders that do not bring into play the value of the debtor’s property, or (iii) orders that do not result in a loss.”
[18] At the hearing of the motion, 143 argued that “loss” was established because two people were willing to lend 143 $1.4 million and were seeking mortgages as security for their loans. From this, 143 argued that it could be inferred that the value of the property was $1.4 million. Although the price obtained by the receiver is subject to a sealing order, for the purposes of this motion, the receiver agreed that the price could be assumed to be $1 million. Thus, 143 argued that it had suffered a “loss” of $400,000 – the difference between the value of the property and the approved sale price.
[19] I do not accept this argument. The inference I am invited to draw as to the value of the property is simply not available. Affidavit evidence as to what a friend and a family member were willing to lend says nothing about the objective value of the property. Moreover, the affidavits are an unenforceable statement of intention. They state that someone is willing to make a loan, but no such loan was made at the relevant time. 143 characterized its attempt to redeem the mortgage as “essentially” an offer but acknowledged that it was not articulated as an offer to purchase the property for $1.4 million, and that there was a difference between affidavits promising money and money held in a trust account, available to complete a purchase. All that was available on May 27 was the affidavits.
[20] Essentially, 143 attempted to redeem its debt to RBC, albeit for significantly less than the amount of the debt. This was no offer to purchase, and even if it could be so characterized, it was contingent on raising monies that it did not have. 143 had only non-binding promises of money. The receiver was under no obligation to act on these promises, and its decision not to do so occasioned no loss, let alone the loss of $400,000 that 143 contends. . Royal Bank of Canada v. 1434399 Ontario Inc.
In Royal Bank of Canada v. 1434399 Ontario Inc. (Ont CA, 2025) the Ontario Court of Appeal granted a motion "seeking an order declaring that the responding party, 1434399 Ontario Inc. (“143”), has no right of appeal under ss. 193(a) or (c) of the Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3 (the “BIA”) from three orders of Sheard J., dated May 27, 2025: an approval and vesting order, an ancillary order, and a discharge order".
Here the court considers the BIA s.193(a) ['future rights'] appeal route:There is no right of appeal under s. 193(a)
[10] Section 193(a) of the BIA establishes a right of appeal “if the point at issue involves future rights”.
[11] 143 argues that its appeal involves future rights because Mr. Fulton, as guarantor of the mortgage, will be subject to greater liability when RBC seeks to enforce its claim against him personally.
[12] I do not accept this argument. It is well established that “future rights” mean future legal rights. As explained in North House Foods Ltd. (Re), 2025 ONCA 563, 20 C.B.R. (7th) 1, at para. 25:Future rights under s. 193(a) mean future legal rights. The phrase has been interpreted to mean “rights which could not at the present time be asserted but which will come into existence at a future time”. The question is whether the rights engaged in an appeal are future rights or presently existing rights that are exercisable in the future. Future rights do not include procedural rights or commercial advantages or disadvantages that may accrue from the order challenged on appeal. [citations omitted.] [13] There is no question that, as guarantor of 143’s debt, Mr. Fulton’s commercial interests are affected by the approval and vesting order. That order determines the extent of his liability on the guarantee, but that is his present liability, not a future right: see 2403177 Ontario Inc. v. Bending Lake Iron Group Ltd., 2016 ONCA 225, 396 D.L.R. (4th) 635, at paras. 27-28.
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