Amherst Crane Rentals v. Perring

• Jurisdiction: Ontario
• Judge: Laskin, Goudge and Feldman, JJ.A.
• Date: 03 October 2003
• Citation: (2004), 187 O.A.C. 336 (CA)
• Subject Matter: WILLS,BANKRUPTCY,BANKS AND BANKING,PRACTICE
• Court: Court of Appeal (Ontario)

Amherst Crane Rentals v. Perring (2004), 187 O.A.C. 336 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. JN.064

Amherst Crane Rentals Limited (applicant/appellant) v. Arlene Clare Perring, personally and as trustee of the estate of Ashley Perring, deceased (respondent/respondent)

(C38627)

Indexed As: Amherst Crane Rentals Ltd. v. Perring et al.

Ontario Court of Appeal

Laskin, Goudge and Feldman, JJ.A.

June 16, 2004.

Summary:

A debtor died. His estate declared bankruptcy. The deceased owed the applicant $53,679.28. The applicant sought payment of that debt from $82,000 that the wife had received as the designated beneficiary of her husband's RRSPs and from $1.27 million that she had received from his three life insurance policies. The applicant abandoned its claim against the insurance monies four or five days before trial.

The Ontario Superior Court, in a decision reported at [2002] O.T.C. 497, dismissed the application and awarded the respondents $30,000 costs. The applicant appealed.

The Ontario Court of Appeal dismissed the appeal on the substantive issue, but reduced the costs award to $15,000.

Bankruptcy - Topic 434

Property of bankrupt - Particular property - Registered retirement savings plans - An application judge held that RRSPs did not form part of a deceased's estate but instead devolved directly to the designated beneficiary - Further, a creditor had no right to seek repayment of a debt from the proceeds of the RRSPs in the hands of the designated beneficiary when the estate was unable to pay its debts (i.e., bankrupt) - The Ontario Court of Appeal agreed with the application judge - See paragraphs 1 to 35.

Bankruptcy - Topic 3683

Creditors - General - Claims by creditors against special deposits - Registered retirement savings plans - [See Bankruptcy - Topic 434 ].

Banks and Banking - Topic 6813

Registered retirement savings plans - General - Claims against beneficiaries - [See Bankruptcy - Topic 434 ].

Practice - Topic 7003

Costs - Party and party costs - General and definitions - Amount involved - A debtor died - His estate declared bankruptcy - The deceased owed the applicant $53,679.28 - The applicant sought payment of that debt from $82,000 that the wife had received as the designated beneficiary of her husband's RRSPs and from $1.27 million that she had received from his three life insurance policies - The applicant abandoned its claim against the insurance monies four or five days before trial - It was unsuccessful on the remaining claim - The Ontario Court of Appeal held that although the costs award could take some account of the relatively late timing, it was an error to award costs as if $1.27 million were at stake - Neither was the entire $82,000 at risk - The court reduced the costs awarded against the applicant from $30,000 to $15,000 - See paragraphs 36 to 39.

Wills - Topic 100

Testamentary instruments - Designation of beneficiary of specific assets - Registered retirement savings plans - [See Bankruptcy - Topic 434 ].

Cases Noticed:

Clark Estate v. Clark (1997), 115 Man.R.(2d) 48; 139 W.A.C. 48 (C.A.), consd. [para. 3].

Canadian Imperial Bank of Commerce v. Besharah (1989), 68 O.R.(2d) 443 (H.C.), not folld. [para. 10].

Kerslake v. Gray, [1957] S.C.R. 516, folld. [para. 13].

Pozniak Estate v. Pozniak et al. (1993), 88 Man.R.(2d) 36; 51 W.A.C. 36 (C.A.), not folld. [para. 16].

MacInnes v. MacInnes, [1935] S.C.R. 200, refd to. [para. 19].

Fekete Estate, Re, [2000] O.T.C. 200; 32 E.T.R.(2d) 202 (Sup. Ct.), refd to. [para. 23].

Fekete Estate v. Simon - see Fekete Estate, Re.

Banting et al. v. Saunders Estate et al., [2000] O.T.C. 575; 34 E.T.R.(2d) 163 (Sup. Ct.), refd to. [para. 23].

Diplock, Re; Diplock v. Wintle, [1948] 1 Ch. 465 (C.A.), refd to. [para. 26].

Statutes Noticed:

Succession Law Reform Act, R.S.O. 1990, c. S-26, sect. 53 [para. 11].

Authors and Works Noticed:

Corbin, Barry S., RRSPs: Partial Protection against Creditors? (2000), 20 E.T.P.J. 33, generally [para. 24, footnote 2]; pp. 43, 44 [para. 32].

Feeney, Thomas G., Canadian Law of Wills (4th Ed. 2000), p. 1.4, para. 1.8 [para. 8].

Lindsay, V., and Rawding, H., Non-Insurance RRSPs After Death: What Are They? (June 2000), Willpower, No. 66, generally [para. 24, footnote 2].

Oosterhoff, A.H., Wills and Succession (5th Ed. 2001), p. 499 [para. 8].

Werker, Anne, Non-Insurance RRSP Designations - Testamentary Dispositions of Property that do not Form Part of the Estate (2003), 22 E.T.P.J. 103, generally [para. 24, footnote 2].

Counsel:

Angela Assuras, for the appellant;

Mark Muir Rodenburg, for the respondent.

This appeal was heard on October 3, 2003, by Laskin, Goudge and Feldman, JJ.A., of the Ontario Court of Appeal. Feldman, J.A., delivered the following decision for the court on June 16, 2004.