Franche (Bankrupt), Re, (1997) 213 A.R. 75 (QB)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 02, 1997
• Citations: (1997), 213 A.R. 75 (QB)

Franche (Bankrupt), Re (1997), 213 A.R. 75 (QB)

MLB headnote and full text

Temp. Cite: [1997] A.R. TBEd. DE.050

In The Matter Of The Bankruptcy of Joseph Xavier Cyril William Franche, A.K.A. Cyril William Franche

In The Matter Of The Bankruptcy of Marjorie May Theresa Franche

(Action No. BKCY 59916 and 59917)

Indexed As: Franche (Bankrupt), Re

Alberta Court of Queen's Bench

In Bankruptcy

Judicial District of Edmonton

Funduk, Registrar in Bankruptcy

December 2, 1997.

Summary:

Bankrupts, husband and wife, applied for their discharges. The major creditor, an insurer, opposed the discharges. It alleged that the couple deliberately set fire to their house. The insurer claimed for what it paid to a mortgagee and its taxed costs in a civil lawsuit in which the bankrupts unsuccessful­ly sued the insurer for the fire loss. The issue arose as to whether the insurer's claim would survive the discharges.

A Registrar of the Alberta Court of Queen's Bench, in Bankruptcy, refused the applications and granted the insurer leave to pursue the issue of whether its claim would survive the discharges.

Bankruptcy - Topic 8803

Discharge of debtor - General principles - Considerations - General - Bankrupts, husband and wife, applied for their dis­charges - The major creditor, an insurer, opposed the discharges - It alleged that the couple deliberately set fire to their house - The insurer claimed for what it paid to a mortgagee and its taxed costs in a civil lawsuit in which the bankrupts unsuccess­fully sued the insurer for the fire loss - A Registrar of the Alberta Court of Queen's Bench, in Bankruptcy, refused the applica­tion, stating that it would be a travesty to reward the bankrupts with discharges when the liability stemmed from a torching of their residence - The Registrar granted the insurer leave to pursue the issue of whether its claim would survive the dis­charges.

Bankruptcy - Topic 8889

Discharge of debtor - Grounds for refusal - Fraud - [See Bankruptcy - Topic 8803 ].

Cases Noticed:

National Bank of Canada v. Co-operators General Insurance Co. (1988), 90 A.R. 295; 62 Alta. L.R.(2d) 289 (C.A.), refd to. [para. 4].

Berthold v. McLellan (1994), 19 Alta. L.R.(3d) 28 (C.A.), refd to. [para. 9].

Erie Mutual Fire Insurance Co. v. Konert et al. (1988), 28 O.A.C. 372; 70 C.B.R.(N.S.) 112 (Div. Ct.), refd to. [para. 11].

State Farm Mutual v. Spence (1996), 40 C.B.R.(3d) 248 (Ont. Gen. Div.), refd to. [para. 12].

Kemper, Re (1961), 2 C.B.R(N.S.) 130 (Ont. H.C.J.), dist. [para. 13].

Turner v. Midland Doherty Ltd. (1992), 13 C.B.R.(3d) 16 (B.C.S.C.), dist. [para. 13].

Statutes Noticed:

Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, sect. 178(1) [para. 9].

Counsel:

Browning Smith Inc., Trustee;

S. Livingstone, McLennan Ross, for Econ­omical.

These applications were heard before Funduk, A Registrar of The Alberta Court of Queen's Bench, in Bankruptcy, who filed the following reasons for decision on December 2, 1997.