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Insolvency (BIA) - Appeals (7). 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.
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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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