Anderson (Bankrupt), Re

• Jurisdiction: Alberta
• Court: Court of Queen's Bench of Alberta (Canada)
• Citation: 2004 ABQB 349,(2004), 358 A.R. 183 (QB Reg.)
• Date: 07 April 2004

Anderson (Bankrupt), Re (2004), 358 A.R. 183 (QB Reg.)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. MY.046

In The Matter Of the Bankruptcy of Debbie Lynn Anderson

(Bk03 97439; 2004 ABQB 349)

Indexed As: Anderson (Bankrupt), Re

Alberta Court of Queen's Bench

Judicial District of Edmonton

Wacowich, Registrar in Bankruptcy

May 4, 2004.

Summary:

A trustee in bankruptcy applied for an absolute discharge of the bankrupt. A major creditor made representations that funds received by the bankrupt during the bankruptcy in settlement of a motor vehicle personal injury claim should be paid to the trustee as part of the bankrupt's estate.

A Registrar of the Alberta Court of Queen's Bench, In Bankruptcy, granted the bankrupt an absolute discharge and held that she was entitled to the funds in question.

Bankruptcy - Topic 440.5

Property of bankrupt - Particular property - Damages for lost wages - The bankrupt was injured in a 1999 motor vehicle accident - The matter was settled during the bankruptcy in 2004 - A creditor argued that the damages received by the bankrupt for loss of future earning capacity should form part of the bankrupt's estate - A Registrar of the Alberta Court of Queen's Bench, In Bankruptcy, stated that the bankruptcy laws were not intended to require payments by the bankrupt to the estate after the bankrupt's discharge and that to require payment of any of the award for future loss of wages to the estate would bring about that result - Accordingly, while the future loss amount might be property it was not property "that may be acquired by or devolved on him before his discharge" (Bankruptcy and Insolvency Act, s. 67(1)(c)) - Further, even if the award for loss of future earning capacity could be said to have been acquired or devolved on the bankrupt before discharge, it could be said that it constituted personal damages because without the injury to the bankrupt through the motor vehicle accident there would be no entitlement to that head of damage - Accordingly, no portion of the future loss of income was payable to the estate - See paragraph 23.

Bankruptcy - Topic 440.5

Property of bankrupt - Particular property - Damages for lost wages - The bankrupt was injured in a 1999 motor vehicle accident - The matter was settled during the bankruptcy in 2004 - A creditor argued that the amounts received by the bankrupt for loss of future earning capacity and past loss of earnings should form part of the bankrupt's estate - A Registrar of the Alberta Court of Queen's Bench, In Bankruptcy, held that both past and future loss were "salary or wages" under s. 68 of the Bankruptcy and Insolvency Act and were part of "total income" (s. 68(2)(a)) - However, the Registrar stated that even if it could be said that the creditor's position on the application constituted a request under s. 68 for the bankrupt to pay the funds in issue to the estate, he would deny that application - With regard to past loss of income, the Registrar considered that the bankrupt was entitled to receive income of $1,600 per month, which was more than she had received for past loss of income, and there was therefore no surplus available to the estate - The bankrupt was therefore entitled those funds - See paragraphs 24 to 29.

Cases Noticed:

Hollister, Re (1926), 7 C.B.R. 629 (Ont. S.C.), consd. [para. 4].

Lang v. McKenna (1994), 27 C.B.R.(3d) 205 (Ont. Gen. Div.), consd. [para. 5].

Bell, Re (1996), 39 C.B.R.(3d) 236 (B.C.S.C.), consd. [para. 5].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 9].

Marzetti v. Marzetti (Bankrupt), [1994] 2 S.C.R. 765; 169 N.R. 161; 155 A.R. 340; 73 W.A.C. 340; 20 Alta. L.R.(3d) 1, consd. [para. 12].

Marzetti v. Marzetti (Bankrupt) (1992), 131 A.R. 154; 25 W.A.C. 154; 14 C.B.R.(3d) 127 (C.A.), refd to. [para. 13].

Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; 219 N.R. 161; 123 Man.R.(2d) 1; 159 W.A.C. 1, consd. [para. 16].

Rogers v. Spence (1844), 13 M. NW. 571; 153 E.R. 239, refd to. [para. 22].

Authors and Works Noticed:

Houlden, Lloyd W., and Morawitz, Carl H., Bankruptcy Law of Canada, p. 239 [para. 8].

Counsel:

Rhonda Fox Miles (Fox-Miles & Associates Inc.), trustee in bankruptcy;

Stephen J. Livingstone (McLennan Ross), for the bankrupt;

Mark Kirwin (Kirwin & Kirwin), for the creditor.

This application was heard on April 7, 2004, before Wacowich, Registrar, of the Alberta Court of Queen's Bench, In Bankruptcy, who delivered the following reasons for decision on May 4, 2004.