14.5: Appeals only with permission
14.8: Filing a notice of appeal

Case Summary

The Defendant applied under rule 14.5(1)(a) for permission to appeal part of an earlier Court of Appeal Application Decision to a full panel of the Court of Appeal. In that Decision, the Court dismissed two Applications by the Defendant to seek Leave to appeal a Receivership Order under section 193(e) of the Bankruptcy and Insolvency Act, RSC 1985, c B-3, and to extend the time to appeal under section 31(1) of the Bankruptcy and Insolvency General Rules, CRC, c 368 (“BIA Rules”). Rowbotham J.A. first noted that an Application for permission to appeal the decision of a single Appellate Judge was not a rehearing. The Applicant must demonstrate an error of law, jurisdiction or principle; that discretion was exercised unreasonably; or that the decision was based on a misapprehension of important facts. The Court, at the Application for permission to appeal, could also consider the Appeal’s chance of success, the standard of appellate review and any ensuing delay. In this case, the Application raised no serious questions of law, jurisdiction or principle. Further, Justice Rowbotham found that the proposed grounds of Appeal were not of overall importance to the bankruptcy practice.

The Defendant argued that the Court erred in law in not granting the time extension, and that the Court must extend the time to appeal under rule 31(1) of the BIA. Rowbotham J.A. noted that a common consideration to both the Leave Application under the BIA and time extension under rule 31(1) of the BIA Rules, was whether the proposed Appeal had a reasonable chance of success. Justice Rowbotham held that the Defendant’s argument was not frivolous, and had some reasonable merit. However, when considered in the context of the importance of the issue to the Bankruptcy practice, Her Ladyship was not persuaded to grant Leave. Even though the Defendant’s argument had some reasonable merit, there was not enough of a chance of success to warrant a hearing by a full panel.

The Defendant argued further that the Court must extend the time for Leave to appeal because the Court had made a decision on the Leave Application. Rowbotham J.A. stated that this was a technical argument which ignored the practical reality of the situation. Based on the circumstances, Rowbotham J.A. refused permission to appeal to a full panel.

Finally, Justice Rowbotham considered the relevant time period for commencing the present Application. The Decision was issued on March 31, 2016, and the Defendant filed its Application on April 28, 2016. The Appellant argued that rule 14.8(2)(a)(iii) gave it one month after the date of the Decision by which to apply. The Plaintiff argued that it should have been brought within the ten-day period contemplated by BIA Rules, rule 31(1). Rowbotham J.A. noted that there was a potential for mischief if the BIA Rules, rule 31(1) did not apply; however, this issue did not need to be decided, given the Court’s earlier conclusions. Rowbotham J.A. stated that, where a party fails to bring a Leave Application within ten days, and then files to obtain an extension of time, it can further delay the process by waiting a month rather than ten days to apply for permission to appeal to a full panel of the Court. The Defendant’s Applications were dismissed.

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