Canada (Attorney General) v. Herve, (2009) 275 N.S.R.(2d) 201 (SC)

• Judge: Edwards, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 19, 2009
• Jurisdiction: Nova Scotia
• Citations: (2009), 275 N.S.R.(2d) 201 (SC);2009 NSSC 42

Can. (A.G.) v. Herve (2009), 275 N.S.R.(2d) 201 (SC);

    877 A.P.R. 201

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. MR.022

The Attorney General of Canada (appellant) v. William Blair Herve (respondent)

(SN No. 298665; 2009 NSSC 42)

Indexed As: Canada (Attorney General) v. Herve

Nova Scotia Supreme Court

Edwards, J.

February 11, 2009.

Summary:

Herve applied for forgiveness of his student loan under s. 178(1.1) of the Bankruptcy and Insolvency Act. The Registrar granted the requested relief. The Crown appealed the Registrar's decision.

The Nova Scotia Supreme Court dismissed the appeal.

Bankruptcy - Topic 8804

Discharge of debtor - General principles - Considerations - Student loans - [See Bankruptcy - Topic 8988 ].

Bankruptcy - Topic 8988

Discharge of debtor - Liabilities not released by discharge - Student loans - Herve applied for forgiveness of his student loan under s. 178(1.1) of the Bankruptcy and Insolvency Act (as of June 2008 he owed a total of $19,979.72) - The Registrar granted the requested relief - The Crown appealed - The Crown did not allege a lack of good faith by Herve in connection with his liability under the loan - However, the Crown submitted that the Registrar erred in finding that Herve had and would continue to experience financial difficulties to such an extent that he would be unable to pay the liabilities under the student loan - The Nova Scotia Supreme Court dismissed the appeal - The Registrar reviewed Herve's debt and income situation and he acknowledged Herve's monthly surplus of $170 over the Superintendent's Guidelines - The Registrar then concluded that Herve "does not have the resources to discharge this liability now, nor in the next several years" - That decision was open to the Registrar on the evidence before him - It was not for the court to substitute its opinion for that of the Registrar's - While the court may have come to a different conclusion, it could not say that the Registrar's decision was unreasonable or unsupported by the evidence.

Cases Noticed:

Pyke (Bankrupt), Re (2005), 230 N.S.R.(2d) 104; 729 A.P.R. 104; 2005 NSSC 33 (Reg.), refd to. [para. 29].

Minto (Bankrupt), Re (1999), 191 Sask.R. 1; 14 C.B.R.(4th) 235 (Q.B. Bktcy. Reg.), refd to. [para. 29].

Roach (Bankrupt), Re (2008), 272 N.S.R.(2d) 1; 869 A.P.R. 1; 2008 NSSC 15 (Reg.), refd to. [para. 29].

Kelly (Bankrupt), Re, [2000] O.T.C. Uned. C47; 20 C.B.R.(4th) 251 (Sup. Ct. Dep. Reg.), dist. [para. 30].

Statutes Noticed:

Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, sect. 178(1.1) [para. 27].

Counsel:

Dwight Rudderham, for the appellant;

William Blair Herve, respondent, in person.

This appeal was heard on January 19, 2009, at Sydney, Nova Scotia, before Edwards, J., of the Nova Scotia Supreme Court, who delivered the following decision on February 11, 2009.