Executive Summary: Key Legal and Evidentiary Issues

• Appellant sought to vary or set aside a chambers order dismissing his application for an extension of time to file appeal materials, which resulted in his appeal being declared abandoned.

• Failure to file the notice of appeal within the mandatory 10-day period under Rule 31(1) of the Bankruptcy and Insolvency General Rules undermined the appellant's position throughout the proceedings.

• Insufficient evidentiary support — including the absence of a sworn affidavit — left the appellant unable to satisfy the Davies factors for bona fide intention to appeal.

• Prejudice to creditor Nora Chonchuir was established, as further extensions would delay recovery of a substantial debt and increase her legal costs.

• Merits of the underlying appeal were assessed as very low, given the appellant's failure to particularize allegations of voting irregularities or address the legal test for annulment of bankruptcy.

• The Court applied a highly deferential standard of review for discretionary orders and found no palpable and overriding error of fact, law, or principle in the chambers justice's analysis.

The bankruptcy proposal and its rejection

David Lloyd William Jones was the owner of several companies that became the subject of ongoing bankruptcy proceedings. After a proposal Mr. Jones made under section 57(a) of the Bankruptcy and Insolvency Act (BIA) was rejected by a majority of his creditors, bankruptcy arose by operation of law. Mr. Jones subsequently applied to annul the bankruptcy, and creditor Nora Patricia Ni Chonchuir applied to lift a statutory stay so she could proceed with a debt action against Mr. Jones and one of his companies.

Chief Justice Skolrood's decision

On July 23, 2025, Chief Justice Skolrood dismissed Mr. Jones' annulment application, finding that he had not provided sufficient evidence to justify annulling the bankruptcy. The Chief Justice emphasized that annulments were a discretionary remedy, to be exercised rarely, and concluded that granting one in this case would undermine the integrity of the bankruptcy process and prejudice Mr. Jones' creditors. He also granted Ms. Chonchuir's application to lift the statutory stay.

The missed appeal deadline and the extension application

Under Rule 31(1) of the Bankruptcy and Insolvency General Rules, Mr. Jones was required to file his notice of appeal by August 5, 2025. He did not file until August 22, 2025, and did not serve the respondents — David Bottom and J. Bottom and Associates Ltd. (the "Trustee Respondents") and Ms. Chonchuir — until September 2, 2025. On October 22, 2025, Mr. Jones applied to the Court for an order extending the time to file and serve his appeal record, transcripts, and factum, by 30 days. He had not applied to extend the time to file and serve his notice of appeal.

Justice Winteringham's chambers ruling

The application came on for hearing before Justice Winteringham on November 20, 2025. The justice treated Mr. Jones' application as one to extend the time for commencement of an appeal and filing of materials, and applied the factors set out in Davies v. C.I.B.C. (1987), 15 B.C.L.R. (2d) 256 (the "Davies factors"). She concluded Mr. Jones had not demonstrated a bona fide intention to appeal, an extension would result in prejudice to the respondent creditor Nora Chonchuir, and the merits of the appeal were very low. She determined that overall, it was not in the interests of justice to grant the extensions sought by Mr. Jones and dismissed his appeal as abandoned.

Mr. Jones' arguments before the Court of Appeal panel

Appearing in person before a three-justice division of the Court of Appeal on January 22, 2026, Mr. Jones argued that he had erroneously believed the filing deadline for his appeal was 30 days. He pointed to notices he had given — to his insolvency trustee, David Bottom, on July 24, 2025, and to counsel for Ms. Chonchuir on August 1, 2025 — as evidence of his intention to appeal. He attributed further delays between August and November 2025 to difficulty retaining pro bono counsel to assist him with progressing his appeal and to caring for his aging parents in Kelowna. He also stated he was unrepresented at the hearing before the justice on November 20, 2025, and misunderstood the nature of the hearing. He said he did not receive the Trustee Respondents' and Ms. Chonchuir's response materials until November 17 and 18, 2025, respectively. On the merits, he contended there were voting or other irregularities in the procedures carried out by the Trustee Respondents, leading to rejection of his bankruptcy proposal by his creditors.

The Court of Appeal's analysis and the applicable standard of review

Justice Mayer, writing for the unanimous panel, noted that under section 29 of the Court of Appeal Act, S.B.C. 2021, c. 6, a division of the Court may cancel or vary an order made by a single justice sitting in chambers, but will not do so unless satisfied the justice was wrong in law, or in principle, or misconceived the facts, citing Haldorson v. Coquitlam (City), 2000 BCCA 672, at para. 7. The standard of review for discretionary orders was described as highly deferential, citing Ashraf v. Jazz Aviation LP, 2024 BCCA 45, at para. 3. An application to vary an order is not a fresh hearing or a rehearing of the original application, citing Sparwood (District) v. Teck Coal Ltd., 2023 BCCA 353, at para. 9.

The panel found that Justice Winteringham had correctly applied the Davies factors. On the question of bona fide intention, the chambers justice had concluded that, given the absence of evidence to support his statements about the steps he had taken to continue his appeal, Mr. Jones had not met his burden. The panel noted Mr. Jones had not filed an affidavit setting out his evidence concerning the delays. The panel saw no palpable and overriding error in that finding. On prejudice, the justice had correctly noted the focus of a prejudice assessment was the prejudice resulting from delay and not to the appeal itself, referring to Fidler v. Forensic Psychiatric Institute, a Hospital, 2016 BCCA 83, at para. 33. The justice accepted submissions of Ms. Chonchuir that granting Mr. Jones a further extension would result in prejudice to her, including a delay in recovering a substantial debt from Mr. Jones and increased legal costs. On the merits, the justice noted that Mr. Jones had not provided submissions in this respect in his written materials and had not particularized his allegations about the creditors' meeting in the record before her. The justice also considered that Mr. Jones had not addressed the relevant circumstances for annulment set out in EncoreFX Inc. (Re), 2023 BCSC 39, at para. 31. The panel confirmed that a division of the Court will not interfere with a single justice's assessment of the merits of an appeal absent a manifest error of fact, or in the applicable principles of law, citing Friedlander v. Claman, 2015 BCCA 483, at para. 10. Mr. Jones had not identified any such errors.

Ruling and outcome

The Court of Appeal unanimously dismissed Mr. Jones' application to vary. Justices Dickson and Abrioux concurred with Justice Mayer's reasons. The panel held that Justice Winteringham applied the correct principles, and it had not been shown that the justice was wrong in law or misapprehended the facts. As a result, the earlier chambers order stands and the appeal remains dismissed as abandoned. No specific monetary award was ordered in this decision; the document references only "a substantial debt" owed to Ms. Chonchuir but does not specify an exact amount.