Friedland (Bankrupt), Re, (2013) 335 B.C.A.C. 132 (CA)

• Judge: Chiasson, Bennett and MacKenzie, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 20, 2012
• Jurisdiction: British Columbia
• Citations: (2013), 335 B.C.A.C. 132 (CA);2013 BCCA 119

Friedland (Bankrupt), Re (2013), 335 B.C.A.C. 132 (CA);

    573 W.A.C. 132

MLB headnote and full text

Temp. Cite: [2013] B.C.A.C. TBEd. MR.051

In The Matter Of the Bankruptcy of Steven B. Friedland and Western Liquid Funding Inc.

Temple Consulting Group Ltd. (appellant/claimant) v. Abakhan & Associates Inc., in its capacity as Trustee of the Estates of Steven B. Friedland and Western Liquid Funding Inc. (respondent/trustee)

(CA039498; 2013 BCCA 119)

Indexed As: Friedland (Bankrupt), Re

British Columbia Court of Appeal

Chiasson, Bennett and MacKenzie, JJ.A.

March 18, 2013.

Summary:

Temple Consulting Group Ltd. claimed as a secured creditor in a bankruptcy. The bankruptcy trustee disallowed the claim, holding that Temple was an unsecured creditor. The Bankruptcy and Insolvency Act provided for a 30 day appeal period. Thirty days after receiving the disallowance, Temple served an unfiled notice of motion and supporting material on the trustee. The next day the trustee advised that the appeal might be out of time. That day, Temple filed the motion and material with the court. The trustee applied for directions. Temple applied to validate the appeal.

The British Columbia Supreme Court, in a decision reported at [2011] B.C.T.C. Uned. 1557, concluded that the appeal had not been brought within the 30 day time limit and dismissed Temple's claim as a secured creditor. Temple appealed.

The British Columbia Court of Appeal, in a decision reported 329 B.C.A.C. 1; 560 W.A.C. 1, dismissed the appeal. Before the court's order was entered, Temple applied for reconsideration of the decision. The cornerstone of the application was tendered fresh evidence that Temple's counsel (who was not counsel at the time the notice of disallowance was served), had to come to realize that the Trustee's notice of disallowance had been served electronically on then counsel for Temple at 4:07 p.m. on July 18, 2011. Under the Supreme Court Civil Rules, material filed after 4:00 p.m. was deemed delivered the following business days (i.e., July 19, 2011). If the Civil Rules applied, Temple's appeal, which was filed on August 18, 2011, was filed in time.

The British Columbia Court of Appeal refused to admit the fresh evidence and, accordingly, dismissed the application for a reconsideration.

Editor's note: For related decisions involving the parties in this matter see: [2011] B.C.T.C. Uned. 1058, [2011] B.C.T.C. Uned. 1769, and 315 B.C.A.C. 9; 535 W.A.C. 9.

Practice - Topic 9031.1

Appeals - Evidence on appeals - Admission of "new evidence" following appeal judgment - See paragraphs 8 to 37.

Practice - Topic 9136

Appeals - Hearing of appeal - Rehearing or reconsideration - When available - See paragraphs 8 to 37.

Cases Noticed:

R. v. Hummel (D.) (2003), 182 B.C.A.C. 93; 300 W.A.C. 93; 175 C.C.C.(3d) 1; 2003 YKCA 4, leave to appeal denied (2003), 327 N.R. 391 (S.C.C.), refd to. [para. 17].

Hadcock et al. v. Georgia Pacific Securities Corp. et al., [2007] B.C.A.C. Uned. 26; 64 B.C.L.R.(4th) 316; 2007 BCCA 127, refd to. [para. 17].

Doman Forest Products Ltd. et al. v. GMAC Commercial Credit Corp. - Canada (2005), 209 B.C.A.C. 197; 345 W.A.C. 197; 2005 BCCA 111, refd to. [para. 18].

Golder Associates Ltd. v. North Coast Wind Energy Corp. (2010), 288 B.C.A.C. 130; 488 W.A.C. 130; 2010 BCCA 263, refd to. [para. 20].

Kerpan v. Vovers, [2012] B.C.T.C. Uned. 154; 2012 BCSC 154, refd to. [para. 24].

Park City Products Ltd. (Bankrupt), Re (2001), 159 Man.R.(2d) 168; 27 C.B.R.(4th) 314; 2001 MBQB 200 (Reg.), affd. (2002), 162 Man.R.(2d) 206; 33 C.B.R.(4th) 79; 2001 MBQB 71, refd to. [para. 24].

Gully (Bankrupt) v. TD Canada Trust, [2002] B.C.T.C. 1170; 36 C.B.R.(4th) 58; 2002 BCSC 1170, refd to. [para. 24].

Counsel:

R. McFee, Q.C., and E. Leduc, for the appellant;

S.A. Turner, for the respondent.

This application was heard at Vancouver, British Columbia, on December 20, 2012, by Chiasson, Bennett and MacKenzie, JJ.A., of the British Columbia. Chiasson, J.A., delivered the following reasons for judgment for the court on March 18, 2013.