Amy Lok

The moving party, a construction lien claimant, sought an extension of time to appeal an order that granted priority to a mortgagee over the proceeds of sale of a property in receivership.

The notice of appeal was filed 18 days late, after the receiver had already distributed the funds.

The Court of Appeal dismissed the motion, finding no bona fide intention to appeal within the time limit, no adequate explanation for the delay, and no merit to the proposed appeal.

The Court also noted that leave to appeal would have been required under the Bankruptcy and Insolvency Act and would not have been granted.

A court-appointed receiver sought directions regarding priority to remaining sale proceeds between a mortgagee and a construction lien claimant.

The mortgagee had advanced funds partly to refinance an earlier mortgage before the lien claimant’s work began.

The court held that advances used to discharge the prior mortgage constituted non‑construction advances under s. 78(3) of the Construction Lien Act and therefore had priority over the lien claim.

The lien claimant failed to establish that its work related to the same improvement financed by the earlier mortgage.

Subrogation principles also supported the mortgagee’s priority position.