THIRD EYE CAPITAL a broad, commercially pragmatic jurisdiction to issue vesting orders. The law of insolvency and the power of receivers has evolved beyond “vesting in” of a purchaser’s rights (as was originally contemplated under s.100 CJA), to “vesting out” or removing all encumbrances, liens, reservations of rights from the asset held by the debtor, because without a broad and purposive reading of s.100 CJA and 243 BIA, “statutory insolvency schemes will not work.” Third Eye Capital Corporation submitted that consequently, the insolvency practice has developed to the point that any interest, including an ownership interest or other property right may be vested out, if (i) the Court is advised what particular rights are being affected, and (ii) the persons affected are given notice. Furthermore, Third Eye Capital Corporation submitted that equitable principles and the inherent jurisdiction of the Superior Court are important considerations in deciding whether to vest a third party proprietary interest: first, it argued that vesting orders, being an equitable remedy, are always subject to the discretion of the court; and second, it argued that contrary to 235. Co.’s assertions, the inherent jurisdiction of the court is not limited to solely procedural issues, but may be relied upon “where it is necessary to promote the objects of the BIA…where there is no other alternative available…and to accomplish what justice and practicality require.”9 4.  ANALYSIS OF THE COURT’S JURISDICTION TO VEST Based on the relevant case law, it would appear irrefutable that in certain circumstances where a motion court vests property to an entitled party, certain third-party proprietary interests may be extinguished and jurisdiction to vest out real property interests only arises where the party in whom the property is to be vested, has at equity or common law “a valid and independent entitlement to possession or ownership.”10 Although Canadian courts have exercised this discretion in narrow circumstances, its scope and limitations remain unclear. The answer to the question posed by the Ontario Court of Appeal appears to be in case law. Canadian courts have relied on the equitable nature of vesting orders to extinguish third party proprietary rights. The justification for this discretion is that it grants the courts the necessary flexibility to achieve a just result on a case- by-case basis and to prevent undesirable outcomes. The inherent jurisdiction of the court should be exercised where a statutory instrument (in this case, the BIA) is “silent on a point or [may] not have dealt with a matter exhaustively.”11 Since the BIA does not contain provisions which expressly address the vesting out of property, the Superior Court must be able to “fill the gap” by using its inherent jurisdiction. In deciding whether vesting out is appropriate and just under the circumstances, the courts have been weighing the equities of the parties on a principled basis, while at the same time considering the prejudice to the third party whose property rights are being transformed or vested out. CONCLUSION The Third Eye Capital appeal is highly anticipated. Steven J. Weisz of Brauti Thorning LLP was retained to intervene in the appeal on behalf of the Insolvency Institute of Canada. The decision will significantly impact all parties to restructuring proceedings, including for purchasers of distressed assets going forward. This appeal presents the Ontario Court of Appeal with an opportunity to establish a principled approach to determining the jurisdiction of a motion judge to vest out certain rights and proprietary interests. A cornerstone objective of the Canadian insolvency regime is to promote transparency and predictability of result in proceedings. The regime must provide guidance to parties in the sale of a debtor’s assets, whereby a trustee or a receiver is able to provide certainty to a purchaser that it will indeed take title to the assets free and clear of all encumbrances and claims in a manner that is approved by the court. RS Note to reader: The author notes that many of the concepts reviewed and analyzed in this article are considered from a common law perspective under the laws of Ontario and the analysis could be very different from a civil law perspective under the applicable laws of Quebec. 4  Trick v. Trick, [2006] O.J. No. 2737, at paras. 19-20. 5  2004 CarswellOnt 2653. 6  Lynch v. Segal (2006), 82 O.R. (3d) 641 (Ont. C.A.). 7  BTR Global Opportunity Trading Ltd. v. RBC Dexia Investors Services Trust, 2012 ONSC 1868.. 8  Third Eye Capital at para. 120. 9  Residential Warranty Co. of Canada Inc., Re, 2006 ABCA 293 at paras. 20-21. 10  Third Eye Capital at para. 111. 11  G.R. Jackson and J. Sarra, “Selecting the Judicial Tool to get the Job Done: An Examination of Statutory Interpretation, Discretionary Power and Inherent Jurisdiction in Insolvency Matters”, Annual Review of Insolvency Law 2007, To- ronto, ON: Thompson Reuters, 2008 at p. 41. Duncan Craig LLP is a recognized leader in providing restructuring and insolvency services in Northern Alberta. Alberta. Our Insolvency and Restructuring team acts for debtors, major secured and unsecured lenders, trustees in bankruptcy, receivers and monitors in a wide variety of engagements. We possess broad knowledge of Northern Alberta industry sectors and have significant experience in assisting clients find Legal Solutions to unique and challenging financial issues. Volume 19 Issue 1 Rebuilding Success 29