Catalina Exploration & Development Ltd., Re; Elias and Catalina Exploration & Development Ltd. v. Hutchison, (1981) 27 A.R. 1 (CA)

• Judge: McGillivray, C.J.A., Moir and Laycraft, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 19, 1981
• Citations: (1981), 27 A.R. 1 (CA);1981 ABCA 31;121 DLR (3d) 95;14 Alta LR (2d) 268;27 AR 1;37 CBR (ns) 149;[1981] AJ No 896 (QL)

Catalina Exploration & Dev. Ltd., Re (1981), 27 A.R. 1 (CA)

MLB headnote and full text

Re Catalina Exploration & Development Ltd.; Elias and Catalina Exploration & Development Ltd. v. Hutchison

(12856)

Indexed As: Catalina Exploration & Development Ltd., Re; Elias and Catalina Exploration & Development Ltd. v. Hutchison

Alberta Court of Appeal

McGillivray, C.J.A., Moir and Laycraft, JJ.A.

February 19, 1981.

Summary:

This case arose out of an application pursuant to s. 186 of the Bankruptcy Act for leave to commence an action for damages against the trustee of the estate of a bankrupt. Earlier the same applicant sought leave to sue the trustee and was refused leave and that decision was affirmed by the Alberta Court of Appeal. The Alberta Court of Queen's Bench dismissed the application. The judgment of the Court of Queen's Bench is reported below - see paragraphs 33 to 96. The applicant appealed to the Alberta Court of Appeal.

The Alberta Court of Appeal interpreted s. 163 of the Bankruptcy Act and dismissed the appeal on the ground of lack of jurisdiction to hear the appeal.

Bankruptcy - Topic 6766

Practice - Orders - Variation of orders pursuant to s. 157(5) of the Bankruptcy Act - The Alberta Court of Appeal stated that s. 157(5) was designed to permit a judge to deal with continuing matters and changing circumstances but was not designed to deal with matters which should be the subject of a final adjudication - See paragraphs 29 to 31.

Bankruptcy - Topic 6885

Practice - Appeals - Jurisdiction - What constitutes "future rights" for purposes of s. 163 of the Bankruptcy Act - The Alberta Court of Appeal stated that "future rights" refers to rights which could not at the present time be asserted but which will come into existence at a future time (see paragraph 23) - The Court of Appeal stated that an application for leave to sue a trustee in respect of presently existing facts does not involve a "future right" - See paragraph 24.

Bankruptcy - Topic 6885

Practice - Appeals - Jurisdiction - S. 163 of the Bankruptcy Act granted an appeal from a decision of a trial judge in a number of cases, including clause (c) where "the property involved in the appeal exceeds in value $500.00" - The Alberta Court of Appeal held that an appeal court did not have jurisdiction under clause (c) where the appeal was from a judge's refusal to grant leave to sue a trustee for wrongful acts - The Court of Appeal stated that such a right was not appreciable in money - See paragraphs 26 to 28.

Words and Phrases

Future rights - The Alberta Court of Appeal discussed the meaning of the words "future rights" as found in s. 163 of the Bankruptcy Act - See paragraphs 22 and 23.

Cases Noticed:

Re Solloway Mills & Co.; Ex parte Solloway, 16 C.B.R. 161; [1935] O.R. 37, refd to. [para. 10].

Re J. McCarthy & Sons Co. of Prescott Limited, [1916] O.L.R. 3, refd to. [para. 13].

Re Kern Agencies Ltd., 12 C.B.R. 279, refd to. [para. 14].

Re Union Fire Insur. Co. (1886), 13 O.A.R. 268, refd to. [para. 14].

Re Bankruptcy of Dominion Foundry Co. Ltd.; Continental Forwarding Ltd. (Creditors) v. Canadian Credit Men's Association (trustee) (1965), 51 W.W.R. 679 (Man. C.A.), refd to. [para. 18].

Gatineau Power Company and Freeman F.T. Cross, [1929] S.C.R. 35, folld. [para. 27].

Re Fundy Supplies Ltd. (1974), 5 N.B.R.(2d) 1; 18 C.B.R.(N.S.) 171, refd to. [para. 38].

Re Tobias and Co., [1891] 1 Q.B. 473, refd to. [para. 38].

Re Cohen (a bankrupt), [1952] All E.R. 36, refd to. [para. 38].

In Columbia Properties Ltd. (1964), 45 D.L.R.(2d) 310, refd to. [para. 38].

Re Richelieu Oil Co. (1946), 28 C.B.R. 10, refd to. [para. 41].

Re Alfred Pelkie (1940), 21 C.B.R. 159, refd to. [para. 41].

Re A Debtor, [1939] 1 Ch. 489, refd to. [para. 42].

Re Edgar etc., [1973] 2 A.L.R. 649, refd to. [para. 42].

Re W.D. Trenwith (1933), 15 C.B.R. 107, refd to. [para. 42].

Re Malartic Hygrade Gold Mines Limited (1966), 10 C.B.R.(N.S.) 34, refd to. [para. 42].

Re Paul-Emile Roy Inc. (1968), 13 C.B.R.(N.S.) 244, refd to. [para. 47].

Re Pelee Motor Inn Limited (No. 2) (1979), 30 C.B.R.(N.S.) 216, refd to. [para. 47].

Re Lumberking Home and Garden Centre Ltd. (1975), 58 D.L.R.(3d) 531, refd to. [para. 48].

Re Groves Raffin Construction Ltd. (No. 2), [1978] 4 W.W.R. 451, refd to. [para. 48].

Statutes Noticed:

Bankruptcy Act, R.S.C. 1970, c. B-3, sect. 19 [para. 48]; sect. 157(5) [para. 30]; sect. 163, sect. 164 [para. 9]; sect. 186 [para. 44].

Authors and Works Noticed:

Houlden and Morawetz, Bankruptcy Law of Canada (1980) [para. 31], page 43 [para. 48].

Bradford and Greenberg's, Canadian Bankruptcy Act (1951) (3rd Ed.), page 59 [para. 48].

Counsel:

William H. Elias, appeared in person;

C.D. O'Brien, for J. Gordon Hutchison.

This appeal was heard by McGILLIVRAY, C.J.A., MOIR and LAYCRAFT, JJ.A., of the Alberta Court of Appeal.

The judgment of the Court of Appeal was delivered by McGILLIVRAY, C.J.A., at Calgary, Alberta, on February 19, 1981.