Atwal (Bankrupt), Re, (2012) 315 B.C.A.C. 255 (CA)

• Judge: Finch, C.J.B.C., Hall and Hinkson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: January 13, 2012
• Jurisdiction: British Columbia
• Citations: (2012), 315 B.C.A.C. 255 (CA);2012 BCCA 46

Atwal (Bankrupt), Re (2012), 315 B.C.A.C. 255 (CA);

    535 W.A.C. 255

MLB headnote and full text

Temp. Cite: [2012] B.C.A.C. TBEd. FE.001

In The Matter Of the Bankruptcy of Lakhminder Singh Atwal (appellant/applicant) v. E. Sands & Associates Inc. (respondent/respondent)

(CA039088; 2012 BCCA 46)

Indexed As: Atwal (Bankrupt), Re

British Columbia Court of Appeal

Finch, C.J.B.C., Hall and Hinkson, JJ.A.

January 31, 2012.

Summary:

At the time that Atwal made an assignment in bankruptcy, he owned a motor vehicle having a value of $5,800. Burnyeat, J., refused to declare that Atwal was entitled to a $5,000 personal exemption for his motor vehicle pursuant to ss. 37 and 67(1)(b) of the Bankruptcy and Insolvency Act (BIA), ss. 71(1)(c), 71.2(2)(b), 71.2(3) of the Court Order Enforcement Act, and s. 2(b) of the Court Order Enforcement Exemption Regulation (see [2011] B.C.T.C. Uned. 687). Atwal appealed.

The British Columbia Court of Appeal allowed the appeal and declared that Atwal was entitled to a personal exemption of $5,000 for his motor vehicle.

Bankruptcy - Topic 483

Property of bankrupt - Exemptions or exclusions - Property exempt from seizure under provincial laws - Motor vehicle - At the time that Atwal made an assignment in bankruptcy, he owned a motor vehicle having a value of $5,800 - Burnyeat, J., refused to declare that Atwal was entitled to a $5,000 personal exemption for his motor vehicle pursuant to ss. 37 and 67(1)(b) of the Bankruptcy and Insolvency Act (BIA), ss. 71(1)(c), 71.2(2)(b), 71.2(3) of the Court Order Enforcement Act, and s. 2(b) of the Court Order Enforcement Exemption Regulation - Burnyeat, J., interpreted the words "If property ... is sold under this Act" in s. 71.2(2) of the Court Order Enforcement Act and differentiated between property sold by a trustee under the BIA, and a sale under the Act in which property was seized and sold as per its provisions - Atwal appealed - The British Columbia Court of Appeal allowed the appeal - The exemption for a motor vehicle found in s. 71(1)(c) of the Act, when considered in the statutory scheme that included ss. 37 and 67(1)(b) of the BIA, was available to a bankrupt regardless of whether there was a sale of the vehicle - Atwal was entitled to a personal exemption of $5,000 for his motor vehicle.

Cases Noticed:

Thow (Bankrupt), Re, [2010] B.C.T.C. Uned. 1561; 2010 BCSC 1561, consd. [para. 5].

Royal Bank of Canada v. Nguyen et al. [2004] B.C.T.C. 895; 33 B.C.L.R.(4th) 131; 2004 BCSC 895, consd. [para. 14].

Walker (Bankrupt), Re, [2010] B.C.T.C. Uned. 1368; 71 C.B.R.(5th) 84; 2010 BCSC 1368, refd to. [para. 16].

Tunney (Bankrupt) et al., Re, [2000] B.C.T.C. 544; 18 C.B.R.(4th) 311; 2000 BCSC 1144, consd. [para. 17].

Statutes Noticed:

Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, sect. 37, sect. 67(1)(b) [para. 2].

Court Order Enforcement Act, R.S.B.C. 1996, c. 78, sect. 71(1)(c), sect. 71.2(2)(b), sect. 71.2(3) [para. 2].

Court Order Enforcement Act Regulation (B.C.), Court Order Enforcement Exemption Regulation, B.C. Reg. 28-98, sect. 2(b) [para. 2].

Court Order Enforcement Exemption Regulation - see Court Order Enforcement Act Regulation (B.C.).

Counsel:

G.H. Dabbs, for the appellant;

D. Gurney, for the respondent.

This appeal was heard on January 13, 2012, at Vancouver, B.C., before Finch, C.J.B.C., Hall and Hinkson, JJ.A., of the British Columbia Court of Appeal. The decision of the Court of Appeal was delivered orally on January 13, 2012, and the following written reasons were delivered by Hinkson, J.A., on January 31, 2012.