Canada: Clarity In Appeal Procedures Part II: The BIA Prevails – Or Does It?

In January, we wrote about a decision of Justice Watt of the Ontario Court of Appeal, which addressed the question of which appeal procedure must be followed in appeals of Orders made in proceedings constituted under both the Bankruptcy and Insolvency Act (the “BIA”)1 and the Courts of Justice Act (the “CJA”).2 His decision in Business Development Bank of Canada v. Astoria Organic Matters Ltd. and Astoria Organic Matters Canada LP3 concluded that, even where the initial Order references both statutes, any appeal must follow the appeal procedures prescribed by s. 193 of the BIA and the Bankruptcy and Insolvency General Rules (the “BIA Rules”) due to Parliament’s exclusive jurisdiction over bankruptcy matters.

The appellant, SusGlobal Energy Belleville Ltd. (“SusGlobal”), appealed Justice Watt’s decision to a panel of the Court of Appeal. In reasons released April 8, 2019, Justice Zarnett, for a unanimous bench, upheld Justice Watt’s decision.4

Although the panel reached the same conclusion as Justice Watt, Justice Zarnett’s reasons introduce an additional nuance into the appeal route analysis by concluding that the appeal route to be followed is dependent upon the jurisdiction pursuant to which the specific Order under appeal was granted; it is not enough to look at the jurisdiction pursuant to which the proceeding was constituted. In so concluding, Justice Zarnett adopted the reasoning set out in a recent chambers decision from the B.C. Court of Appeal, wherein Justice Groberman stated:

I acknowledge that, in a case such as the present one, where relief is sought under both common law equitable principles and the Law and Equity Act as well as the Bankruptcy and Insolvency Act, there can be some question as to whether the appeal provisions of the Bankruptcy and Insolvency Act are engaged. In my view, the answer depends on whether the order under appeal is one granted in reliance on jurisdiction under the Bankruptcy and Insolvency Act. Where it is, the appeal provisions of that statute are applicable. (emphasis added by Justice Zarnett)5

In BDC v. Astoria, the Order under appeal arose out of paragraph 8 of the original receivership Order, being the standard prohibition on commencing proceedings against the receiver without leave of the Court (the “leave to sue provision”). Accordingly, Justice Zarnett held that the appeal route to be followed would depend upon whether the Court’s jurisdiction to include the leave to sue provision in the receivership Order was found in the BIA or the CJA.6

Ultimately, following a review of the history of leave to sue provisions and an analysis of the relevant principles of statutory interpretation, Justice Zarnett concluded that s. 243(1) of the BIA, which provides for the appointment of a national receiver, includes the power to order a leave to sue provision. He reached this conclusion having regard for the Supreme Court of Canada’s articulation of the purpose of s. 243 of the BIA in Lemare Lake Logging, as “the establishment of a regime allowing for the appointment of a national receiver, thereby eliminating the need to apply for the appointment of a receiver in multiple jurisdictions” and increasing efficiency.7

Justice Zarnett held that s. 243 of the BIA must authorize the Court to grant broad powers to receivers, stating that:

By expressly empowering a court, in the BIA, to appoint a receiver as a court officer authorized to take a broad range of actions when just or convenient to do so, Parliament must be taken to have clothed the court with the power to make orders that are essential to the functioning of its officer, the court-appointed national receiver, and to the court’s role in supervising it.8

Justice Zarnett also noted that, prior to the enactment of s. 243, receivership orders under provincial legislation included leave to sue provisions.9 Accordingly, the leave to sue provision could have been grounded in either the BIA or the CJA. In these circumstances, the doctrine of paramountcy mandates that the BIA appeal provisions govern SusGlobal’s appeal. Even though the leave to sue provision could also have been grounded in the CJA power to appoint a receiver, as long as the BIA is one of the sources that authorized the leave to sue provision, SusGlobal’s appeal must follow the appeal route prescribed by the BIA.10

On its face, BDC v. Astoria complicates the analysis that must be conducted by a party when deciding how to appeal an Order made in a proceeding constituted under both the BIA and the CJA. The intended appellant must consider the statutory authority pursuant to which the specific Orders it seeks to appeal were granted, rather than simply relying on the fact that the proceeding was initiated under the BIA.

However, given Justice Zarnett’s conclusion that s. 243 of the BIA provides the Court with broad jurisdiction to grant such powers to receivers as are necessary, it is likely that the majority of Orders made in receivership proceedings will continue to find their source of authority in the BIA. Applicants seeking to commence court-supervised receivership proceedings may wish to consider whether any of the relief they are seeking depends exclusively on the CJA. If no such relief is being sought, it may be appropriate to eventually eliminate the reference to the CJA in the model order altogether.


1 RSC, 1985, c B-3.

2 RSO 1990, c C43.

3 (7 January 2019), Toronto, M49872 (C65512) (Ont CA).

4  Business Development Bank of Canada v. Astoria Organic Matters Ltd., 2019 ONCA 269  [BDC v. Astoria].

5 Industrial Alliance Insurance and Financial Services Inc. v. Wedement Power Limited Partnership, 2018 BCCA 283 (B.C.C.A.) at para 21, cited in BDC v. Astoria at para 29.

6 BDC v. Astoria at para 31.

7 BDC v. Astoria at para 47, citing Saskatchewan (Attorney General) v. Lemare Lake Logging Ltd., [2015] 3 SCR 419, 2015 SCC 53 at paras 45, 67.

8 BDC v. Astoria at para 51.

9 BDC v. Astoria at paras 37-42.

10 BDC v. Astoria at para 66.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions