Veldhuis JA

14.38: Court of Appeal panels
14.74: Application to dismiss an appeal
14.8: Filing a notice of appeal

Case Summary

The Applicants sought to strike two Notices of Appeal filed by the Respondent, which arose out of restructuring proceedings.

As background, the Applicants shared an interest in certain resources with a party over which a receiver had been appointed. The Respondent was a creditor whose lien claims had been ordered to only be paid in part during the receivership proceedings. The Decision respecting the Respondent’s lien claims was made orally on September 8, 2017, and the written Decision was provided on November 30, 2017. However, an Order was not signed on that date. The Respondent filed its first Notice of Appeal on January 2, 2018.

The Applicants argued that the first Notice of Appeal was filed out of time, because it was not filed within 10 days as required by s. 31 of the Bankruptcy and Insolvency General Rules, CRC c 368 (the “BIA Rules”), or within one month of the written Decision as required by Rule 14.8 of the Rules. The Applicants argued that the Notice of Appeal should have been filed within 10 days of the oral Decision on September 8, 2017. Alternatively, they argued that the Appeal period should have begun no later than November 30, 2017, when the written Decision was issued.

Veldhuis J.A. held that the shorter time period to file a Notice of Appeal required by the BIA Rules applied, as the Notice of Appeal clearly related to the distribution of assets as a result of a receivership. The truncated time period in the BIA Rules assists in avoided delay in restructuring proceedings. Her Ladyship also held that the Appeal period began on November 30, 2017 when the written Decision was issued, despite the fact that a final Order had not been signed on that date. The Order was only delayed so specific numbers could be decided upon, and it did not differ substantively from the Justice’s written reasons.

The Respondent had also filed a second Notice of Appeal on April 9, 2018, in respect of an Order that was made on March 29, 2018. The Applicants sought to dismiss the second Notice of Appeal on the basis that it was an abuse of process and based on the merits of the Appeal. Veldhuis J.A. noted that applications to dismiss an Appeal on its merits, or as an abuse of process, must be heard by a full Court of Appeal panel, not a single Appeal Justice, pursuant to Rules 14.38(2)(a) and 14.74. Her Ladyship also noted that while she has no authority to strike the second Notice of Appeal, it appeared to be ill-advised.

As such, the first Notice of Appeal was struck, but the second Notice of Appeal was not.

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