Digest: Ross v Day, 2018 SKQB 153

• Date: May 18, 2018

Reported as: 2018 SKQB 153

Docket Number: 23-1693398 , QB17541

Court: Court of Queen's Bench

Date: 2018-05-18

Judges:

• Barrington-Foote

Subjects:

• Bankruptcy and Insolvency � Conditional Discharge � Appeal
• Civil Procedure � Queen�s Bench Rules, Rule 4-44

Digest: The bankrupt was discharged in 2014 on the condition that he pay $200 per month to the trustee for 14 years. He filed a notice of appeal within a month of the decision pursuant to s. 194(2) of the Bankruptcy and Insolvency Act (BIA) and s. 30 of the Bankruptcy and Insolvency General Rules. He had not taken any steps since to advance the appeal. The applicant, the bankrupt�s single largest creditor, had obtained a judgment against the bankrupt in 2010 for $75,000 for defamation and $10,000 in costs. He applied for an order that the bankrupt�s appeal be dismissed. The bankrupt testified that he had not pursued his appeal because he had been suffering from depression and, when he learned that the applicant had new counsel, he did not know the correct address for service. Evidence was presented that the delay had no effect on the applicant.
HELD: The appeal was dismissed. The court found that the BIA did not provide for applications to strike appeals for delay or want of prosecution and under the BIA Rules, s. 3 provided that in cases not provided for in the BIA or the Rules, the ordinary procedure of the court should apply. Therefore, Queen�s Bench rule 4-44 was applicable. The applicant was guilty of inordinate delay and his explanations were insufficient. Although there was no evidence of prejudice to the applicant if the appeal proceeded, the court concluded that it was in the interests of justice to dismiss the appeal.

Federal Statutes Considered:

• Bankruptcy and Insolvency Act, RSC 1985, c B-3, s 192(4)
• Bankruptcy and Insolvency Act, RSC 1985, c B-3, s 209

Federal Regulations Considered:

• Bankruptcy and Insolvency General Rules, CRC, c 368, s 3
• Bankruptcy and Insolvency General Rules, CRC, c 368, s 30

Rules Considered:

• QB Rule 4-44

Cases Considered:

• Abrahamson Estate, Re, 2003 BCSC 435, 121 ACWS (3d) 415, 39 CBR (4th) 165
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