In Cascade Aerospace Inc v Viking Air Limited, 2025 BCCA 2 ("Viking Air"), the British Columbia Court of Appeal (the "Court of Appeal") upheld the chambers judge's grant of a "replevin order" requiring that the defendant, Cascade Aerospace Inc. ("Cascade"), return an airplane to the plaintiff, Viking Air Limited ("Viking") pending trial. A replevin order requires the temporary return of property to a party claiming to own it pending the outcome of a trial about the property. Viking Air articulates the legal test governing applications for replevin orders, and distinguishes it from tests for similar interim orders.
Background
Viking contracted Cascade to upgrade electronic navigational systems on certain aircraft. Amid a dispute about that contract's terms, Viking sold one of the planes that Cascade was upgrading. Viking demanded Cascade return the plane. Cascade refused on the basis that Viking owed outstanding invoices. Viking then sued Cascade to recover the plane. Cascade responded by claiming a lien over the plane, which it sought to keep only as security for the amounts it claimed.
The chambers judge granted Viking a replevin order under rule 10-1(4): Cascade was required to return the plane to Viking once Viking paid into court the amount of Cascade's outstanding invoices. Cascade appealed this decision. The Court of Appeal dismissed the appeal.
The Appeal Decision
The Court of Appeal's decision clarified the applicable legal test for replevin orders.
The decision to grant a replevin order is discretionary and fact-specific; it involves a two-part test. First, the judge determines which party has a "better claim" to the property through a fact‑specific inquiry. Second, the judge assesses the balance of the parties' interests, including whether and how the defendant's interests can be secured if the property is returned. A judge may grant a replevin order with or without conditions to ensure the order is tailored to the particular facts.
The Court of Appeal also discussed specific misconceptions about replevin orders that arose in this case:
- Replevin orders are distinct from preservation orders. The purpose of a replevin order under rule 10-1(4) is to give the party with better rights to the property the right to interim possession of the property. The purpose of a preservation order under rule 10-1(1) is to give a party disputed property to prevent the other party from damaging or disposing of it before trial.
- Replevin orders do not require risk of harm or disposition. To grant a replevin order a judge need not consider whether the property at issue may be damaged absent the order. Therefore, the typical test for an injunction from RJR-MacDonald, which requires a "demonstrable risk of irreparable harm", does not apply. Requiring otherwise would undermine the discretionary nature of replevin orders, whose point is to respect the possessory rights of the person who says they own the property.
In sum, Viking Air confirms the test for a replevin order involves evaluating which party has the better right to possession of the disputed property and what, if any, security must be provided to ensure a fair litigation process, but does not require the applicant to show that the property may be harmed or lost if it remains in the other party's possession.
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