Replevin Orders – BC Court of Appeal Clarifies what the Test Is (and Is Not): Cascade Aerospace Inc. v. Viking Air Limited, 2025 BCCA 2

Rule 10-1 of the Supreme Court Civil Rules, BC Reg 168/2009 provides litigants with a suite of remedies for the preservation, return, and recovery of property before the final resolution of a lawsuit is determined.

One such remedy is known in law as a replevin order, an order for the return of disputed property to a party prior to trial. Applications for this type of relief can arise in a variety of situations, including where two parties are competing for the ultimate right to possess a piece of property, or where there is no realistic dispute over which party ultimately owns the property, but it is in the possession of another party who is claiming the right to possess it to secure a monetary claim of some kind.

In Cascade Aerospace Inc. v. Viking Air Limited, 2025 BCCA 2 [Cascade], the BC Court of Appeal clarified the test that a party must meet to obtain a replevin order and, perhaps more helpfully, distinguished a replevin order from other preservation orders.

Underlying Cascade was a contractual dispute between two aviation companies. The Respondent, Viking Air Limited (“Viking”), entered into an Integration Agreement with the Appellant, Cascade Aerospace Inc. (“CAI”), to install updated avionics systems onto its amphibious aircraft. As part of the Integration Agreement, Viking delivered two of its aircraft to CAI as prototypes for the installation. After disputes arose over the Integration Agreement, Viking asked for the return of its aircraft. CAI returned one but refused to return the other, arguing, among other things, that it held a general lien over the aircraft.

Viking commenced an action against CAI in detinue, to recover the aircraft. CAI filed a counterclaim against Viking, alleging a breach of the Integration Agreement. Viking filed an application for a replevin order.

Before the chambers judge, Viking was successful, and CAI was required to return the aircraft upon Viking posting security equal to Cascade’s claim for unpaid invoices. CAI appealed. The thrust of CAI’s appeal was two-fold:

1. First, the trial judge erred in not requiring some evidence from Viking that the property was at risk of transfer, disposition, damage, or degradation if the order was not granted; and
2. Second, the trial judge erred in concluding that Viking had proven a risk of irreparable harm if the aircraft was not returned.

What the Replevin Remedy Test is NOT

The Court of Appeal dismissed CAI’s appeal and, in doing so, clarified what the relevant test is (and is not).

First, the test for a replevin order does not, as a standalone element, require evidence of a risk that the property will be dissipated. Unlike preservation or simple possession orders (under Rule 10-1(1)) which are intended to primarily ensure that the integrity of disputed property is maintained pending resolution at trial, replevin orders are intended to permit the immediate return of property that has been wrongfully detained. Though the issues raised in each type of application may overlap, replevin and preservation orders are distinct and must be treated accordingly.

Second, the test for a replevin order is distinct from an injunction. Specifically, replevin orders do not require that the applicant demonstrate irreparable harm to secure a return of property.

What the Replevin Remedy Test IS

A replevin order is a broad and flexible remedy available in cases where one party has a better claim to possession of the asset than the other party, and the other party’s interest can be protected by means alternative to continued possession, such as an order of adequate security.

In granting a replevin order, judges must take into consideration the interests of both parties. The correct test under Rule 10-1(4) is the following:

1. The court must consider which party has the better claim to the property. This is a fact-specific inquiry, based on the evidence before it, rooted in legal principle.
2. The court must balance the interests of the parties and assess whether and how the defendant’s interests can be secured if the property is returned permanently or pending trial. This is a matter of discretion. Replevin orders are typically accompanied by ancillary orders or conditions, such as monetary security in place of the security provided by possessing the asset.
3. The overarching consideration in granting a replevin order is weighing, balancing, and protecting the interests of the parties to achieve what is just and equitable in the circumstances.

The Court of Appeal then applied the clarified legal framework to the case at bar. Despite the fact that the test applied by the chambers judge differed from the test set out by the Court of Appeal, those differences did not result in an incorrect judgment based on reversible legal error. The appeal was therefore dismissed.

On its face, Cascade can read as esoteric, legal wrangling but its practical value for litigants should not be understated. An application for the replevin remedy provides parties who have a strong claim to property that has been wrongfully detained by another a way to seek its immediate return, pending the ultimate resolution of the lawsuit at trial. By contrast, a successful application for a preservation order, often improperly conflated with the replevin remedy, would result in the property being retained by the wrongdoer until the outcome of the trial is known, which can take many months (or years).

If you have any questions relating to this article, please contact Matthew Nakatsu or a member of our Business Disputes Group.

With thanks to Sabrina Ouyang for her invaluable assistance in preparing this post.