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Insolvency - BIA - Appeals - Time Extension. 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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