Leave to appeal is required for orders that are “made under” the Companies’ Creditors Arrangement Act, RSC 1985, c C-36 (the “CCAA”). However, not all orders that are made in the context of the CCAA are made under the CCAA.
In GEC (Richmond) GP Inc. v. Romspen Investment Corporation, 2025 BCCA 9 (“GEC”), the court had made a procedural order to deal with three related actions related to a construction loan agreement between certain of the secured creditors, debtors and guarantors involved in CCAA proceedings. Those three related actions were tried together and trial decisions were made. Those trial decisions were appealed. A single judge of the Court of Appeal in chambers held that the decisions had not been made under the CCAA, meaning leave was not required.
The respondent brought an application before a three-judge panel to cancel the chambers order. The panel examined the underlying procedural order, holding that it was related only to how the process for the three related actions would be managed. It specifically did not preclude any appeal rights. The order furthered the purposes of the CCAA by minimizing any delay in the monitor’s ability to carry out a sales and investment solicitation process for the debtors’ assets. The related actions were all commenced as independent originating process, not under the CCAA and the trial decisions appealed from were not informed by the CCAA nor did the CCAA govern any exercise of discretion on the court’s part. The chambers order was upheld.
Similar to GEC, in J.R. 23andMe Holdings Co., 2025 BCCA 235, the court was again asked to determine if an order under appeal was “made under” the CCAA. Leave had not been sought and the respondents applied to quash the appeal.
The order in the Supreme Court arose in connection with an application under the CCAA to recognize a Chapter 11 bankruptcy proceeding in the US as the main proceeding in the insolvency. The appellant was a plaintiff in two substantially identical proposed class proceedings on behalf of all Canadian customers affected by the October 1, 2023 cyber data breach that 23andme had experienced. At the same time that the recognition order was sought, the appellant had brought an application to provide class action notices of claims in the US Chapter 11 proceedings. The US bankruptcy court had already issued an order for how proofs of claims were to be given to the bankruptcy trustee. The court dismissed the application and the appellant appealed.
The appellant argued that the application had not been made under the CCAA and therefore leave was not required. The court did not agree, holding that though the Supreme Court had not adjudicated the substantive rights and remedies in the insolvency, it did exercise jurisdiction under the CCAA. In dismissing the application, the judge had exercised a discretion under the CCAA. The appeal was quashed.