Simon's Legal Resources

Insolvency (BIA) - Appeals (8)

. Royal Bank of Canada v. 1512632 Ontario Inc. (Cheema & Sons Transport) [BIA s.193e leave test]

In Royal Bank of Canada v. 1512632 Ontario Inc. (Cheema & Sons Transport) (Ont CA, 2026) the Ontario Court of Appeal dismissed insolvency receivership-related appellate motions, here brought against "an Approval and Vesting Order (AVO) approving a sale transaction of the Real Properties of the Debtors .... and an Ancillary Relief Order (ARO), approving activities of the Receiver and authorizing it to make distributions from the proceeds of the sale transaction, among other things.".

Here the court considers granting leave to appeal under BIA s.193e:

Should Leave be Granted?

[56] The test for leave is well established and was recently articulated again by this court in KingSett Mortgage Corporation v. 30 Roe Investments Corp., 2022 ONCA 479, 100 C.B.R. (6th) 218, at para. 26:

(a) Does the proposed appeal raise an issue of general importance to the practice in bankruptcy/insolvency matters or to the administration of justice as a whole and therefore is one that an appellate court should consider and address?

(b) Is the proposed appeal prima facie meritorious and does it involve a point that is of significance to the proceeding? and

(c) Would the proposed appeal unduly hinder the progress of the bankruptcy/insolvency proceedings?

. Royal Bank of Canada v. 1512632 Ontario Inc. (Cheema & Sons Transport)

In Royal Bank of Canada v. 1512632 Ontario Inc. (Cheema & Sons Transport) (Ont CA, 2026) the Ontario Court of Appeal dismissed insolvency receivership-related appellate motions, here brought against "an Approval and Vesting Order (AVO) approving a sale transaction of the Real Properties of the Debtors .... and an Ancillary Relief Order (ARO), approving activities of the Receiver and authorizing it to make distributions from the proceeds of the sale transaction, among other things.".

Here the court considers whether an appeal lies under BIA s.193e (and thus requires leave to appeal) or not:

Is Leave Required?

[42] An appeal lies as of right only if the circumstances set out in one of subsections 193(a) – (d) applies; otherwise leave from a judge of this court is required pursuant to subsection 193(e).

[43] Due to the broad automatic stay on appeal contained in s. 195, this court has expressly taken a narrow approach to the interpretation of the appeal rights in s. 193 (a) – (d): Hillmount Capital Inc. v. Pizale, 2021 ONCA 364, 462 D.L.R. (4th) 228, at para. 28; and Enroute Imports Inc. (Re), 2016 ONCA 247, 35 C.B.R. (6th) 1, at para. 5.

[44] In this case, none of subsections (a) – (d) applies.

[45] “Future Rights” required to engage s. 193(a) are rights that cannot be presently asserted, but will come into existence at a future date: 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, 396 D.L.R. (4th) 635, at paras. 21-22. Future rights are not procedural rights or commercial advantages that may accrue from the order sought to be challenged on appeal: Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, 115 O.R. (3d) 617, at para. 15; and North House Foods Ltd. (Re), 2025 ONCA 563, 20 C.B.R. (7th) 1, at para. 25.

[46] No future rights of the Debtors are engaged by their proposed appeal. They seek to challenge the procedure related to the hearing of the Receiver’s motion below. They do not identify any legal right that did not exist when the AVO and ARO were granted but will arise at some point in the future. I agree with the submission of the Receiver that the fact that closing of the Sale Transaction would (necessarily) occur after the date of the AVO does not convert existing interests of the Debtors into future rights. Accordingly, s. 193(a) does not apply.

[47] Nor does s. 193(b). The issues here are very fact specific. The order or decision is not likely to affect other cases of a similar nature in the bankruptcy proceedings: see Bending Lake, at para. 32. Again, the complaint of the Debtors, boiled down, is a challenge to the decision of the motion judge to deny their request for an adjournment of the July 14, 2026 hearing.

[48] With respect to s. 193(c), a proper interpretation requires an approach which meets the needs of modern, “real-time” insolvency litigation. This court has been clear that this subsection does not apply to orders that are procedural in nature, orders that do not bring into play the value of the debtor’s property, or orders that do not result in a loss: Bending Lake, at paras. 53, 59.

[49] To be clear, an order concerning the method by which a receiver or trustee disposed of assets does not engage s. 193(c) even if the assets at issue had a value that exceeds the statutory threshold: Continental Forwarding Limited v. Canadian Credit Men's Association Limited, 1965 CanLII 596 (MB CA), [1965] M.J. No. 49 (M.B.C.A), at para. 18. Note: the section was at the time of that case numbered as s. 150(c).

[50] That decision is consistent with the jurisprudence of this court to the effect that grounds of appeal involving, among other things, a receiver’s negotiation process and treatment of persons affected by the sale agreement that was the subject of the AVO sought to be appealed were procedural in nature and did not fall within s. 193(c): Bending Lake, at para. 58.

[51] Finally, with respect to this subsection, a “determination of whether the property involved in the appeal exceeds $10,000” is necessarily fact specific. Here, the Debtors have not demonstrated that the granting of the AVO has resulted or would result in a loss of more than $10,000 because the Receiver could have obtained a higher price for the Real Properties. A mere bald assertion is not sufficient: Bending Lake, at para. 64; and Trimor Mortgage Investment Corporation v. Fox, 2015 ABCA 44, at para. 8.

[52] In any event, the Debtors here do not allege that the Sale Transaction was improvident or that a higher offer (let alone higher by at least $10,000), ought to have been accepted. Rather, they want the Sale Transaction quashed in order that they themselves can attempt (yet again) to obtain refinancing and not have the Real Properties sold at all.

[53] The observation of this Court in Marshallzehr Group Inc. v. La Pue International Inc., 2025 ONCA 124, at para. 11 applies equally here: “the AVO is procedural in nature, does not bring into play the value of the debtor’s property, and does not result in a direct loss to any interested party.”

[54] There is no issue that s. 193(d) has no application here.

[55] Accordingly, leave to appeal is required.

. Royal Bank of Canada v. 1512632 Ontario Inc. (Cheema & Sons Transport)

In Royal Bank of Canada v. 1512632 Ontario Inc. (Cheema & Sons Transport) (Ont CA, 2026) the Ontario Court of Appeal dismissed insolvency receivership-related appellate motions, here brought against "an Approval and Vesting Order (AVO) approving a sale transaction of the Real Properties of the Debtors .... and an Ancillary Relief Order (ARO), approving activities of the Receiver and authorizing it to make distributions from the proceeds of the sale transaction, among other things."

Here the court considers an issue of competing appeal routes, applying the doctrine of legislative paramountcy:

Do the Procedures Set Out in the BIA Apply?

[40] The provisions of the BIA govern rights of appeal and appeal routes in this matter. The Receiver was appointed under both s. 243 of the BIA and s. 101 of the CJA. The doctrine of paramountcy prevents an appellant from resorting to the CJA appeal provisions where they are in operational conflict with those of the BIA in respect of timing and leave requirements: Business Development Bank of Canada v. Astoria Organic Matters Ltd., 2019 ONCA 269, 69 C.B.R. (6th) 13, at paras. 66-67.

. 2615333 Ontario Inc. v. Central Park Ajax Developments Phase 1 Inc.

In 2615333 Ontario Inc. v. Central Park Ajax Developments Phase 1 Inc. (Ont CA, 2026) the Ontario Court of Appeal dismissed a insolvency leave to appeal motion [BIA s.193e], this brought against "an order approving the sale of properties to the Corporation of the Town of Ajax (the “Town”)".

Here the court considers a BIA s.193e leave to appeal motion:

[45] The test for leave to appeal under s. 193(e) of the BIA is set out in Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, 115 O.R. (3d) 617, at para. 29, and it 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.

[46] The test for leave is not met in this case.

....

b. The proposed appeal is not prima facie meritorious

[52] This factor considers whether there are arguable grounds of appeal or whether the appeal is frivolous: Bank of Montreal v. 11977636 Canada Inc., 2025 ONCA 561, at para. 6. Examples include where the order under appeal appears to be contrary to law, amounts to an abuse of judicial power or involves an obvious error causing prejudice for which there is no remedy: Pine Tree, at para. 31.

. 2615333 Ontario Inc. v. Central Park Ajax Developments Phase 1 Inc.

In 2615333 Ontario Inc. v. Central Park Ajax Developments Phase 1 Inc. (Ont CA, 2026) the Ontario Court of Appeal dismissed a insolvency leave to appeal motion [BIA s.193e], this brought against "an order approving the sale of properties to the Corporation of the Town of Ajax (the “Town”)".

Here the court considers the BIA s.193c as-of-right appeal route issue:

[30] In this case, 261 relies on s. 193(c) of the BIA to submit that it has a right of appeal from the motion judge’s order. 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”.

[31] This court has consistently held that the right of appeal under s. 193(c) of the BIA is to be interpreted narrowly: North House, 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. In Enroute, at para. 5, the court explained that this 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.

[32] Based on this narrow approach, this court has held that, to qualify as an appeal as of right under s. 193(c), in addition to the $10,000 statutory threshold, an appellant must meet three criteria: (1) the order must be more than procedural in nature; (2) the order must involve the value of the debtor’s property; and (3) the order must result in a loss to the appellant: North House, at para. 28, citing 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, 396 D.L.R. (4th) 635, at para. 53; Proex, at paras. 48-49.

[33] In this case, the Receiver submits that the order does not fall within the scope of s. 193(c) because 261 has not demonstrated that it suffered a loss. I agree.

[34] In considering whether the appeal of an order falls within s. 193(c), a court must critically examine the effect of the order from which an appeal is sought. This inquiry is fact-specific and evidence-based: North House, at para. 28, citing Hillmount, at paras. 41-42. The loss must be based on the evidentiary record: North House, at para. 30. 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: Proex, at para. 52, citing Downing Street Financial Inc. v. 1000162497 Ontario Inc., 2024 ONCA 639, 176 O.R. (3d) 37, at paras. 18, 20.

[35] The question is not simply whether a higher value for the property could be obtained: Proex, at para. 50, citing First National Financial GP Corporation v. Golden Dragon HO 10 Inc., 2019 ONCA 873, 74 C.B.R. (6th) 1, at para. 18. Loss should be determined by way of a “substantive assessment of competing offers” as opposed to a “mere comparison of formal prices”: Downing Street Financial Inc. v. Harmony Village-Sheppard Inc., 2017 ONCA 611, 49 C.B.R. (6th) 173, at para. 28; First National, at para. 18.

. 2615333 Ontario Inc. v. Central Park Ajax Developments Phase 1 Inc.

In 2615333 Ontario Inc. v. Central Park Ajax Developments Phase 1 Inc. (Ont CA, 2026) the Ontario Court of Appeal dismissed a insolvency leave to appeal motion [BIA s.193e], this brought against "an order approving the sale of properties to the Corporation of the Town of Ajax (the “Town”)".

Here the court considers a procedural/practice issue regarding BIA s.193e leave to appeal motions:

[29] 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.” The issues of whether leave is required and whether leave should be granted are generally to be decided by a single judge of this court on a preliminary motion. However, in “some unusual but necessary circumstances”, such a motion may be heard by a panel: North House Foods Ltd. (Re), 2025 ONCA 563, 20 C.B.R. (7th) 1, at para. 34. This includes circumstances, such as here, where the appellant asserted there was a right of appeal but sought leave in the alternative: North House, at para. 34; Crown Capital Private Credit Fund v. Mill Street & Co. Inc., 2022 ONCA 194, at para. 5; and Proex Logistics Inc. (Re), 2025 ONCA 832, at para. 11.

. KingSett Mortgage Corporation v. Mapleview Developments Ltd.

In KingSett Mortgage Corporation v. Mapleview Developments Ltd. (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here involving "the issue of how the quantum of any deficiency in holdbacks is to be calculated under s. 78(2) of the Construction Act, R.S.O. 1990, c. C.30 (the “Act”) for the purpose of determining a priority dispute between a lienholder and a building mortgagee in circumstances where there are no subcontractor lien claims at the time of the dispute".

Here the court considers the insolvency appeal route under BIA s.193(e):

[31] In any event, if necessary, I would grant leave under s. 193(e). Granting leave to appeal under s. 193(e) is “discretionary and must be exercised in a flexible and contextual way”: Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, 115 O.R. (3d) 617, at para. 29. This court has previously granted leave under s. 193(e) in cases where, as here, the appeal raised a matter of statutory interpretation “of some importance” and where it would be helpful for this court, as an appellate court, to resolve the questions raised by the parties: see BCIMC Construction Fund Corporation v. 33 Yorkville Residences Inc., 2023 ONCA 1, 4 C.B.R. (7th) 253, at para. 10.

. KingSett Mortgage Corporation v. Mapleview Developments Ltd.

In KingSett Mortgage Corporation v. Mapleview Developments Ltd. (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, here involving "the issue of how the quantum of any deficiency in holdbacks is to be calculated under s. 78(2) of the Construction Act, R.S.O. 1990, c. C.30 (the “Act”) for the purpose of determining a priority dispute between a lienholder and a building mortgagee in circumstances where there are no subcontractor lien claims at the time of the dispute".

Here the court considers the insolvency appeal route under BIA s.193(c):

[29] As to jurisdiction, I am satisfied that an appeal to this court lies as of right pursuant to s. 193 of the BIA. The motion resulting in the order under appeal was brought pursuant to the direction of the Superior Court in the AVO and in the context of the receivership proceeding. Decisions relating to s. 78 of the Act and applications for directions in receivership proceedings may be (and in my view should be in this case), governed by the appeal routes set out in the BIA, and not the Act: Dal Bianco v Deem Management Services Limited, 2020 ONCA 585, 82 C.B.R. (6th) 161, at paras. 11-12.

[30] This appeal satisfies the criteria for s. 193(c) of the BIA as set out by this court in 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, 369 D.L.R. (4th) 635, at para. 53. The order under appeal is more than procedural since it determines the lien claimants’ entitlements; it involves the value of Debtor property since the claims are paid out of the Lien Claimants’ Reserve (which comes out of the sale price of the Debtor’s property); and the order under appeal results in a loss to the appellants (i.e., receiving a ten percent holdback on only unpaid invoices as opposed to all invoices). This appeal also clearly involves property exceeding $10,000 in value.

. Grozelle (Re) [BIA s.193(e)]

In Grozelle (Re) (Ont CA, 2026) the Ontario Court of Appeal dismissed a motion, this seeking "leave to amend their notice of appeal to seek leave to appeal the costs order".

Here the court considers the appellate jurisdiction of BIA s.193(e):

ii. Is leave to appeal required under s. 193(e) of the BIA?

[9] I reject the moving parties’ argument that their proposed appeal from the $180,000 costs order is as of right under s. 193(c) of the BIA. It is well-established that s. 193(c) is to be construed narrowly, rejecting an expansive application of the automatic right of appeal contained in that section. The approach to be followed is “alive to and satisfies the needs of modern, ‘real-time’ insolvency litigation” and dictates that: “s. 193(c) does not apply to (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”: 2403177 Ontario Inc. v. Bending Lake Iron Group Limited, 2016 ONCA 225, 396 D.L.R. (4th) 635, at para. 53.

[10] The essence of the bankruptcy regime is to promote the efficient and expeditious resolution of a bankruptcy, one of the principal objectives of bankruptcy legislation, which necessarily requires the court to control the appeal process in bankruptcy matters: 2403177 Ontario Inc., at para. 47. It would be contrary to the legislative purpose of the bankruptcy regime to allow an automatic right of appeal for costs orders that under any other regime, including the CJA, would require leave to appeal.

[11] The proposed appeal relates to the monies that the appellants have to pay in costs, not the bankrupt’s property or any loss to the bankrupt’s property exceeding $10,000. Rather, the costs order serves to reimburse the trustee for its costs in responding to the unsuccessful cross-motion. The costs order is therefore entirely procedural. As a result, leave to appeal is required under s. 193(e) of the BIA: Osztrovics Estate v. Osztrovics Farms Ltd., 2015 ONCA 463, 27 C.B.R. (6th) 156.

iii. Should leave to appeal the costs order be granted under s. 193(e) of the BIA?

[12] The moving parties submit that the issue of leave to appeal should be left to the appeal panel. There is no justification for doing so. As a single judge of this court, I clearly have jurisdiction to determine the question of leave to appeal under s. 193 of the BIA. Moreover, as this court recently instructed in North House Foods Ltd. (Re), 2025 ONCA 563, 20 C.B.R. (7th) 1, at para. 34: “Motions for leave to appeal under s. 193(e) are to be brought to a single judge in chambers.” Motions for leave to appeal may be put before an appeal panel but it is not mandatory to do so. Further, delaying this issue to the appeal panel would only interfere with the speedy administration of the appeal and simply cause more costs to be incurred in this bankrupt estate.

[13] I turn finally to the question of whether leave to appeal the costs order should be granted. I am not persuaded that it is in the interests of justice to do so, having regard to the well-established criteria set out by this court in Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, 115 O.R. (3d) 617, at para. 29, and as followed in subsequent cases of this court:

(1) The proposed appeal does not raise any issue of general importance to the practice in bankruptcy or insolvency matters. The costs order was a run-of-the-mill costs order following an unsuccessful motion.

(2) The proposed appeal is not prima facie meritorious. It is a high hurdle to obtain leave to appeal a costs order because of its discretionary nature and the considerable appellate deference owed to the judge’s exercise of discretion in making it. This deference is only displaced where the costs order is the product of an error in principle or plainly wrong: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.

(3) Finally, the proposed appeal would hinder the progress of the bankruptcy proceedings. If leave to appeal were granted, the trustee would have to use non-existent or scant resources to respond to an appeal that prima facie lacks merit and to delay the reimbursement of its costs expended to respond to the cross-motion.

[14] Leave to appeal the costs order is therefore denied.

. Grozelle (Re)

In Grozelle (Re) (Ont CA, 2026) the Ontario Court of Appeal dismissed a motion, this seeking "leave to amend their notice of appeal to seek leave to appeal the costs order".

Here the court considers whether a proposed appeal amendment is subject to BIA s.193(e), or is under the general provisions of the CJA:

i. Does s. 193 of the BIA apply?

[6] I disagree with the moving parties’ submissions that the costs order was a freestanding order related to the fraudulent conveyances declaration and should be subject to the appeal provisions of the CJA.

[7] The jurisdiction of the court for the purposes of appeal is governed by the substance of the order made: RREF II BHB IV Portofino, LLC v. Portofino Corporation, 2015 ONCA 906, 33 C.B.R. (6th) 9, at para. 12; Dal Bianco v. Deem Management Services Limited, 2020 ONCA 585, 82 C.B.R. (6th) 161, at para. 11. The costs order followed the moving parties’ unsuccessful cross-motion, which focused on administrative and procedural matters within the bankruptcy. Myers J. made the costs order pursuant to the authority conferred under s. 197(1) of the BIA. That there was authority for the court to make the costs order under the CJA is of no moment. Where the authority to make the order is under the BIA and under provincial legislation in bankruptcy proceedings, the appeal is governed by the BIA as a matter of paramountcy: Business Development Bank of Canada v. Astoria Organic Matters Ltd., 2019 ONCA 269, 69 C.B.R. (6th) 13, at paras. 5, 66-67; Dal Bianco, at para. 6.

[8] Accordingly, the moving parties’ proposed appeal of the costs order is under s. 193 of the BIA.

. Avida 2015 Inc. (Re)

In Avida 2015 Inc. (Re) (Ont CA, 2026) the Ontario Court of Appeal considered a BIA s.193(e) issue:

[6] The appellant asserts he has an appeal as of right under s. 193 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, but he has also sought leave to appeal in case it is required. The respondent denies that there is a right to appeal without leave and argues that leave to appeal should not be granted.

[7] We are satisfied that there is no appeal as of right in this case. Accordingly, leave to appeal is required pursuant to s. 193(e).

[8] This is an appropriate case to grant leave. The test set in Business Development Bank of Canada v. Pine Tree Resorts Inc., 2013 ONCA 282, 115 O.R. (3d) 617, at para. 29, is satisfied. Specifically, although it appears to be well established that credit bidding is permitted, whether a creditor may use a credit bid to acquire an asset that does not attach to its security is not well settled. This is a matter of importance beyond this appeal to bankruptcy proceedings more generally. The proposed appeal is prima facie meritorious, and the respondent confirmed that no harm would be caused by hearing the appeal.

[9] Accordingly, leave to appeal is granted. Appeal management is available to assist the parties in having the appeal heard expeditiously and to address any requests for intervention that may be made.