AdvEn: the interim loan held in trust pending appeal

On August 26, 2026, 2841034 Alberta Ltd. sent US$550,000 to Alvarez & Marsal Canada Inc., in trust for AdvEn Inc. and AdvEn Industries Inc., the first money under the interim facility Justice G.S. Dunlop of the Court of King's Bench of Alberta had approved a week earlier. The same day, 2815793 Alberta Ltd. and Secure Property Development & Investment PLC filed their notice of appeal. Three weeks later the money had not moved. The facility is accruing interest to the lender, the proposal trustee reports, but its proceeds "have not been funded to the Companies as yet given the Appellants' position that a stay is in place," and the trustee "is not prepared to release the Interim Financing to the Companies in the absence of an order from the Court of Appeal or agreement of all parties," per the Report of the Proposal Trustee, Sept. 18, 2026, paras. 15(d), 20, 25.

The Nisku carbon developer's contested interim financing, and the appeal from it, were reported here on August 27. What has been filed since is an argument about whether that appeal exists at all. AdvEn applied on September 14 to strike the notice of appeal because no one sought leave; 281 and SPDI answered on September 16 with an application for a declaration that leave is not required, or for leave. Both were set down for 9:30 a.m. on September 23 before a single justice of the Court of Appeal of Alberta in Calgary, file 2601-0256AC, per the AdvEn's Application, filed Sept. 14, 2026, p. 3 and the Appellants' Application for Declaration that Leave to Appeal Is Not Required and for Permission to Appeal, filed Sept. 16, 2026, p. 3. The record AdvEn put before the appeal court includes the first transcript of what Justice Dunlop said when he ruled.

What the chambers judge said

The hearing on August 19, held by video in the afternoon, opened with the adjournment 281 and SPDI wanted. Their counsel, M.D. Jacka, appearing as agent for Scott Chimuk, asked for about ten days "so that we can get our ducks in a row here," suggested that professional fees due in the coming weeks could be deferred to ease the liquidity pressure, and spoke of materials "filed in the last kind of 3 and a 1/2 hours," per the Transcript of Proceedings, Aug. 19, 2026, pp. 1, 12, Ex. "I" to the Affidavit of Brenda Lewis-Besler, Sept. 14, 2026. Justice Dunlop refused. The 30-day clock had started when the notice of intention went out in July, and "anybody can do the math and figure out that the initial stay is going to expire today." He said he might have considered an adjournment with a stay attached "if there were not this cash flow crisis/wall coming up next week," and added: "I am sympathetic to counsel being unavailable and witnesses having medical appointments, but that is just the way it is with these kind of applications," per the Transcript of Proceedings, Aug. 19, 2026, p. 13.

On the merits, Mr. Jacka told the court he now had instructions to match whatever interest rate and maturity the new lender offered and to accept the sale process as presented; his clients' concern was "this sudden bid priming our secured position," with 281 having put "a little under $600,000 US" into the companies, per the Transcript of Proceedings, Aug. 19, 2026, pp. 27–29. For the trustee, Robyn Gurofsky said there were two term sheets before the court, "but one appears to be tied to a -- to SISP terms that we have not yet been able to determine," and that the other gave the certainty the company needed, per the Transcript of Proceedings, Aug. 19, 2026, p. 27.

The judge took the good-faith question under s. 50.4(9) of the BIA first, since the extension depended on it. He had heard the argument about directors of one company "switching horses," which "suggests some perhaps improper behaviour by those directors," he said, and he noted that 281 and SPDI did not oppose the extension. "So, I agree with Mr. Jacka, there may be some reason for suspicion, but it does not overcome in my view the evidence in Mr. Mueller's affidavit and in the proposal trustee's report, that the insolvent persons here are on the whole acting in good faith," per the Transcript of Proceedings, Aug. 19, 2026, p. 32. On prejudice he relied on page 19 of the trustee's first report: if the physical assets had to be liquidated, "the proceeds would be minimal, and it would not matter if one party was primed through," per the Transcript of Proceedings, Aug. 19, 2026, p. 33.

On the choice of lender, he had heard 281's facility described but had not seen it; Mr. Jacka explained that the affidavit had been filed but not sent to the commercial coordinator. "I am not prepared on the record before me to pick an interim financing this different from the one in the proposal trustee's materials other than the few changes counsel described," the judge said; in a contest between facilities, "I needed to see that, not just hear it described." He approved the new lender's facility "with those three changes that Ms. Jeffries described on the record," and AdvEn's counsel asked that the draft order's date for the agreement be revised to August 19 "because the amended agreement was signed today," per the Transcript of Proceedings, Aug. 19, 2026, pp. 29, 33–35.

Whether leave was needed

Section 193 of the BIA gives an appeal as of right in listed cases, among them where future rights are involved (s. 193(a)) or the property involved exceeds $10,000 in value (s. 193(c)), and otherwise only with leave under s. 193(e). AdvEn's position is that this order sits in the last category. The charges, their priority and a sale process whose result still needs court approval are procedural, it argues, citing the Court of Appeal's two decisions in Mantle Materials Group, Ltd v Travelers Capital Corp and its 2026 decision in MNP Ltd v Skyview Parking and RV Storage Ltd; the appellants have shown no proven loss over $10,000; and because the notice of appeal did not include an application for permission, it is "of no force and effect" under Rule 31(2) of the Bankruptcy and Insolvency General Rules, per the AdvEn's Memorandum of Argument, Sept. 14, 2026, paras. 16–26. In the alternative it asks the court to refuse an extension of time and refuse leave, and in the further alternative to lift the automatic stay under s. 195 so the order, the SISP and the charges take effect, per the AdvEn's Application, filed Sept. 14, 2026, paras. 2–4.

AdvEn frames the dispute as a narrow one. After losing the adjournment, it says, the appellants consented to everything except which lender would fund the process: "The result was two competing lenders seeking to fund a restructuring process but otherwise consenting to the relief." It calls the appellants' logic "difficult to understand considering that the restructuring process is now being funded regardless of who ultimately pays that amount," per the AdvEn's Application, filed Sept. 14, 2026, para. 7.