Athabasca Workforce Solutions Inc v Greenfire Oil & Gas Ltd, 2021 ABCA 66 (CanLII)
Keywords: leave to appeal; decision of Supervising Judge; Bankruptcy and Insolvency Act, RSC 1985, c B-3, s. 193,
The Applicants seek a declaration that they do not require Leave to appeal the decision of a Supervising Judge under the Bankruptcy and Insolvency Act, RSC 1985, c B-3 (“BIA”). The decision approves a sale and vesting order, interim financing order, and an interim financing charge order in respect of corporate assets. The Court of Appeal determines that, pursuant to s. 193 of the BIA, Leave is required; that the test for Leave has not been met.
This case illustrates a significant issue for appellate practice: jurisdiction. Simply put, if the Court of Appeal cannot source jurisdiction to hear the matter, the Court may decline to hear it. While, for the vast majority of cases, the jurisdiction of the Court of Appeal is sourced at s. 3 of the Judicature Act, RSA 2000, c J-2, it is important to consider other statutes governing the appeal process. Often, those statutes impose additional requirements for litigants.
In the case of the BIA, ss. 193(a) to (d) provide that an appeal lies from the decision of a Supervising Judge “as of right” in specific enumerated circumstances (e.g. if the point at issue involves future rights, if the decision is likely to affect other cases of a similar nature, or if the property involved in the appeal exceeds $10K in value). For “any other case”, s. 193(e) provides that an appeal lies to the Court of Appeal only with Leave of a Judge of the Court of Appeal. (See para. 7).
For the Applicants herein, the question was whether the decision they wished to appeal fits within circumstances that would provide an appeal “as of right”, or whether Leave would be required. The Court of Appeal noted that, while ss. 193(a) to (d) appear “at first blush” to confer broad jurisdiction to the Court of Appeal, these sections have been “narrowly interpreted…to ensure bankruptcy proceedings are administered efficiently and expeditiously”. (See para. 8).
At paras. 10-16, the Court of Appeal reviewed the jurisprudence which narrows the interpretation of ss. 193(a) and (c) (i.e. the sections which had been raised by the Applicants herein), ultimately concluding that neither section could be applied to the proposed appeal.
The Court of Appeal then turned to the question of whether, in any event, Leave should be granted. Since the Applicants could not avail themselves of the appeal “as of right” contained in s. 193, a remaining opportunity was to obtain Leave from the Court. In making this determination, the Court of Appeal set out the following factors:
- a) whether the point on appeal is of significance to the practice;
- b) whether the point raised is of significance to the action itself;Case: Athabasca Workforce Solutions Inc v Greenfire Oil & Gas Ltd,
- c) whether the appeal is prima facie meritorious or frivolous; and
- d) whether the appeal will unduly hinder the progress of the action. (See para. 17).
Adding to this list of factors, the Court of Appeal noted that Leave “should only be granted if the judgment 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”. (See para. 18).
In this case, the Court of Appeal determined, at paras. 19-26, that the Applicants did not meet the test for Leave.
Counsel for Athabasca Workforce Solutions Inc.: Ryan Zahara and Jonathan Bourchier (MLT Aikins LLP, Calgary)
Counsel for Greenfire Oil & Gas Ltd. and Greenfire Hangingstone Operating Corporation: David LeGeyt, Ryan Algar, and James Murphy (Burnet, Duckworth & Palmer LLP, Calgary)
Counsel for Alvarez Marsal Canada Inc.: Adam Maerov and Kourtney Rylands (McMillan LLP, Calgary)
Counsel for Trafigura Canada General Partnership: Karen Fellowes, Q.C., Jakub Maslowski, and Robert Hamilton (Stikeman Elliot LLP, Calgary)
Counsel for McIntytre Partners: Kyle Kashuba and Jessie Mann (Torys LLP, Calgary)
Counsel for Behrokh Azarian et al.: Doug Nishimura (Filed Law, Calgary)
Counsel for Regional Municipality of Wood Buffalo: Gregory Plester (Brownlee LLP, Calgary)
Counsel for ABC Funding LLC: James Reid (Blake, Cassels & Graydon LLP, Calgary)