Schrager, Mainville, Hamilton
Motion for leave to appeal de bene esse a judgment of the Superior Court dismissing an application to appoint an interim receiver. Refused.
At trial, the appellant filed an application to have the applicant appointed as interim receiver of the property of the respondent corporations, pursuant to the Bankruptcy and Insolvency Act (R.S.C. 1985, c. B-3), to sell their businesses on a going concern basis by soliciting offers. Since that application was dismissed, the appellant was granted leave to appeal the judgment rendered. The applicant also seeks leave to appeal and claims that its interest is distinct from that of the appellant. It also argues that since it was a party to the trial proceedings, as proposed receiver and then as interim proposed receiver, it may initiate an incidental appeal. In addition, it claims that such an incidental appeal can be initiated as of right when the principal appeal was properly initiated, in accordance with the relevant provisions of the Code of Civil Procedure (CQLR, c. C-25.01).
Section 193 of the Act and s. 31 of the Bankruptcy and Insolvency General Rules (C.R.C. 1978, c. 368) govern the appeal. Indeed, the Court is not convinced that the rules governing the incidental appeal stipulated in the Code of Civil Procedure can be transposed to appeals in matters of bankruptcy and insolvency given the mandatory wording of the relevant provisions of the Act. Therefore, an extension of the time to appeal and leave to appeal pursuant to s. 193 (e) of the Act and s. 31 of the Rules are necessary to allow the applicant to appeal.
That being the case, leave to appeal must be refused since the applicant does not have true standing to be an appellant in the file. Thus, the wording of s. 243 (1) of the Act concerning the appointment of an interim receiver, easily leads to the conclusion that the receiver may only be appointed on application by a creditor, or where appropriate, by an insolvent debtor. Since the proposed receiver and the interim proposed receiver cannot seek their own appointment, the applicant has no standing to appeal the court’s decision to refuse its appointment.
Text of the decision: Http://citoyens.soquij.qc.ca