Isabelle v. The Royal Bank of Canada,

• Jurisdiction: New Brunswick
• Judge: Robertson, Bell and Quigg, JJ.A.
• Neutral Citation: 2008 NBCA 69
• Citation: 2008 NBCA 69,(2008), 336 N.B.R.(2d) 332 (CA),336 NBR (2d) 332,299 DLR (4th) 727,47 CBR (5th) 159,[2008] NBJ No 345 (QL),336 N.B.R.(2d) 332,336 NBR(2d) 332,[2008] N.B.J. No 345 (QL),(2008), 336 NBR(2d) 332 (CA),299 D.L.R. (4th) 727
• Date: 16 April 2008
• Court: Court of Appeal (New Brunswick)

Heritage Flooring (Bankrupt), Re (2008), 336 N.B.R.(2d) 332 (CA);

    336 R.N.-B.(2e) 332; 862 A.P.R. 332

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Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2008] N.B.R.(2d) TBEd. SE.054

Renvoi temp.: [2008] N.B.R.(2d) TBEd. SE.054

A.C. Poirier & Associates Inc., as Trustee for the Estate of André Isabelle (appellant) v. The Royal Bank of Canada (respondent)

(137/07/CA; 2008 NBCA 69)

Indexed As: Plancher Héritage ltée/Heritage Flooring Ltd. (Bankrupt), Re

Répertorié: Plancher Héritage ltée/Heritage Flooring Ltd. (Bankrupt), Re

New Brunswick Court of Appeal

Robertson, Bell and Quigg, JJ.A.

September 25, 2008.

Summary:

Résumé:

A bank (Royal) demanded payment from Plancher Héritage ltée/Heritage Flooring Ltd. (Heritage) pursuant to a credit facility agreement. Heritage made an assignment in bankruptcy. A receiver was appointed. Royal demanded payment on guarantees provided by two companies (Profor and Groupe) and Isabelle. Royal sued Profor, Isabelle and others respecting the guarantees. Isabelle sought an order permitting him to commence an action against Royal in the stead of the trustee in bankruptcy, but in his own name and at his own expense pursuant to s. 38 of the Bankruptcy and Insolvency Act. Royal was granted standing by the Registrar in Bankruptcy and Insolvency to oppose Isabelle's request and the matter was referred to a judge for disposition. Isabelle moved for an order reversing the Registrar's decision to grant Royal standing to oppose Isabelle's request to commence an action on Heritage's behalf. Royal sought to strike portions of the defence filed by the defendants in the action respecting enforcement of guarantees and to strike a counterclaim in that action as well.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 320 N.B.R.(2d) 76; 825 A.P.R. 76, held that Isabelle was precluded from acquiring the right to bring an action pursuant to s. 38 of the Act and that it was within the Registrar's authority to refer the matter to the court. The court struck paragraphs of the defendants' defence and the entire counterclaim in Royal's action. Isabelle appealed the decision respecting s. 38. Royal moved for summary dismissal of the appeal based on Isabelle's failure to seek and obtain leave to appeal. Isabelle argued that leave was not required and, alternatively, sought leave nunc pro tunc. Fifteen days after the hearing of the appeal and while the appeal was under reserve, Isabelle made an assignment in bankruptcy. Royal, inter alia, brought a post-appeal hearing motion seeking an order that the appellate court's decision be permanently stayed or, alternatively, that the court grant an order for security for costs as against Isabelle's trustee.

The New Brunswick Court of Appeal dismissed the post-appeal hearing motion. The court held that leave to appeal should have been sought and obtained prior to the appeal hearing. However, the omission was not fatal and the court granted leave to appeal nunc pro tunc. The court allowed Isabelle's appeal, set aside the motion judge's decision dismissing his motion under s. 38 and held that he was entitled to an order authorizing him to commence an action for damages against Royal. The court awarded Isabelle costs of $5,000 respecting the post-appeal hearing motion, $3,500 respecting that leave to appeal matter and $8,500 respecting the s. 38 matter. The costs ($17,000 in total) were payable forthwith.

Editor's Note: there are several prior decisions involving these parties.

Bankruptcy - Topic 440.3

Property of bankrupt - Particular property - After-acquired property - [See second Bankruptcy - Topic 6422 ].

Bankruptcy - Topic 2308

Proposals - Effect of proposal - Stay of proceedings - What proceedings stayed - A trustee in bankruptcy decided not to pursue an action by the bankrupt (Heritage) against a bank (Royal) - Isabelle, a guarantor/creditor of Heritage, applied unsuccessfully for a court order authorizing him to pursue the action in his own name and at its own expense and risk under s. 38 of the Bankruptcy and Insolvency Act - Royal had opposed the order - Isabelle appealed - The appeal decision was reserved - Fifteen days after the hearing of the appeal, Isabelle made an assignment in bankruptcy - Royal argued that the court decision under reserve was permanently stayed under ss. 67(1) and 71 of the Act - Section 67(1)(d) stated that the bankrupt's property shall comprise such powers over property as might have been exercised by the bankrupt for his or her own benefit - Section 71 stated that the property of the bankrupt passed to the trustee and that the bankrupt ceased to have the capacity to deal with his or her property - The New Brunswick Court of Appeal stated that it should be readily apparent that these provisions did not operate to prevent the court from rendering its decision on appeal - However, once the court concluded that a s. 38 order should issue, the right to pursue an action against Royal then vested in Isabelle's trustee - See paragraph 54.

Bankruptcy - Topic 2308

Proposals - Effect of proposal - Stay of proceedings - What proceedings stayed - A trustee in bankruptcy decided not to pursue an action by the bankrupt (Heritage) against a bank (Royal) - Isabelle, a guarantor/creditor of Heritage, applied unsuccessfully for a court order authorizing him to pursue the action in his own name and at its own expense and risk under s. 38 of the Bankruptcy and Insolvency Act - Royal had opposed the order - Isabelle appealed - The appeal decision was reserved - Fifteen days after the hearing of the appeal, Isabelle made an assignment in bankruptcy - Royal argued that the release of the appeal court's decision should be stayed on the ground of "mootness" - Royal argued that Isabelle in his "Statement of Affairs" valued the s. 38 application at "$0" - Therefore, the decision under appeal was "worthless" even if Isabelle was successful and, hence, there was no live issue between the parties - The New Brunswick Court of Appeal rejected the argument - Isabelle's trustee indicated that in those cases where the value of an asset or liability was unknown with any reasonable certainty, it was necessary for the bankrupt to use "$1" or "$0" for the estimated realizable value - The court stated that this made "good sense" and rendered the Bank's argument frivolous - See paragraph 55.

Bankruptcy - Topic 2308

Proposals - Effect of proposal - Stay of proceedings - What proceedings stayed - A trustee in bankruptcy decided not to pursue an action by the bankrupt (Heritage) against a bank (Royal) - Isabelle, a guarantor/creditor of Heritage, applied unsuccessfully for a court order authorizing him to pursue the action in his own name and at its own expense and risk under s. 38 of the Bankruptcy and Insolvency Act - Royal had opposed the order - Isabelle appealed - The appeal decision was reserved - Fifteen days after the hearing of the appeal, Isabelle made an assignment in bankruptcy - Royal argued that the release of the appeal court's decision should be stayed on the ground of "mootness" - Royal argued that if Isabelle was Heritage's creditor at the time the appeal was heard, he was no longer a creditor as any debt owed to him by Heritage was an asset in his bankruptcy and had been assigned to his trustee by operation of law - The New Brunswick Court of Appeal held that this argument was "frivolous" - Isabelle did not lose his status as creditor because he was now bankrupt - It just meant that his trustee was the one vested with the right to decide what further action should be taken with respect to all of his assets - See paragraph 55.

Bankruptcy - Topic 2308

Proposals - Effect of proposal - Stay of proceedings - What proceedings stayed - A trustee in bankruptcy decided not to pursue an action by the bankrupt (Heritage) against a bank (Royal) - Isabelle, a guarantor/creditor of Heritage, applied unsuccessfully for a court order authorizing him to pursue the action in his own name and at its own expense and risk under s. 38 of the Bankruptcy and Insolvency Act - Royal had opposed the order - Isabelle appealed - The appeal decision was reserved - Fifteen days after the hearing of the appeal, Isabelle made an assignment in bankruptcy - Royal argued that the release of the appeal court's decision should be stayed because Isabelle's trustee had not indicated whether he was interested in pursuing an action against Royal should Isabelle's appeal succeed - The New Brunswick Court of Appeal rejected the argument - The s. 38 motion and appeal were already heard prior to Isabelle falling into bankruptcy - Until the court decision issued there was nothing his trustee could do - The trustee was entitled to await the decision of the court to determine whether it should proceed to sue Royal based on the totality of the surrounding circumstances - Without knowing the reasons underscoring the court's decision to grant the order Isabelle sought, it would be unwise for his trustee to make a decision in the abstract - See paragraphs 56 to 58.

Bankruptcy - Topic 5741

Inspectors - Duties and powers - General - [See third Bankruptcy - Topic 6422 ].

Bankruptcy - Topic 6421

Administration of estate - Actions by creditors - General - A bankrupt's trustee decided not to pursue an action on behalf of the bankrupt - A creditor of a bankrupt applied for a court order authorizing the creditor to pursue the action in his own name and at its own expense and risk under s. 38 of the Bankruptcy and Insolvency Act - The New Brunswick Court of Appeal stated that there was discussion in the jurisprudence whether a s. 38 applicant had to establish that the proposed lawsuit had merit - In some cases, the threshold test was stated in terms of establishing a "prima facie" case - The court was not confident that the law should require anything more than that the applicant demonstrate a "serious issue" - It was for the plaintiffs to decide whether they believe they had a valid cause of action that was worth the time and money required - Moreover, to allow the potential defendant to argue on the motion that a prima facie case had not been established would undermine the purpose of s. 38 and offend the understanding that the right to intervene was a limited one - See paragraph 43.

Bankruptcy - Topic 6422

Administration of estate - Actions by creditors - Creditor defined - A bank (Royal) demanded payment from Heritage pursuant to a credit facility agreement - Heritage made an assignment in bankruptcy - A receiver was appointed - Royal demanded payment on guarantees provided by Isabelle (a shareholder) and others - Royal sued Isabelle and others respecting the guarantees - Isabelle sought an order permitting him to commence an action against Royal in the stead of the trustee in bankruptcy, but in his own name and at his own expense pursuant to s. 38 of the Bankruptcy and Insolvency Act - The motions judge denied the motion - The New Brunswick Court of Appeal allowed Isabelle's appeal - As guarantor, Isabelle was a creditor within the meaning and scope of s. 38 - This was a proper case for granting Isabelle the right to initiate a lawsuit against Royal respecting any breach of legal obligations it might have owed Heritage - This included not only statutory breaches, such as those tied to s. 69 of the Act, but also contractual breaches and breaches of obligations imposed at law or in equity - See paragraphs 5 and 50.

Bankruptcy - Topic 6422

Administration of estate - Actions by creditors - Creditor defined - A bank (Royal) demanded payment from Heritage pursuant to a credit facility agreement - Heritage made an assignment in bankruptcy - A receiver was appointed - Royal demanded payment on guarantees provided by Isabelle (a shareholder) and others - Royal sued Isabelle and others respecting the guarantees - Isabelle sought an order permitting him to commence an action against Royal in the stead of the trustee in bankruptcy, but in his own name and at his own expense pursuant to s. 38 of the Bankruptcy and Insolvency Act - The motions judge denied the motion - Isabelle appealed - Royal argued that any right Heritage might have had to sue Royal was Royal's property, not the trustee's, by virtue of the Bank's "General Security Agreement" with Heritage containing an after-acquired property clause - The New Brunswick Court of Appeal rejected Royal's argument - The interest of a secured creditor in the bankrupt's property never lost its priority over the claims of other creditors - The court refused to make a "quantum leap" by accepting that any right of action that Heritage acquired against Royal respecting the latter's wrongdoing came within the ambit of the after-acquired-property clause - Royal was asserting that it owned the right to sue itself - Obviously that could not be so - If Royal's argument was accepted, no debtor would be able to sue a secured creditor for breaching the parties' security agreement, or other legal obligations, so long as that security agreement contained an after-acquired-property clause - A contractual provision drafted with that objective might be struck on the ground of being offensive to public policy - See paragraph 48.

Bankruptcy - Topic 6422

Administration of estate - Actions by creditors - Creditor defined - A bank (Royal) demanded payment from Heritage pursuant to a credit facility agreement - Heritage made an assignment in bankruptcy - A receiver was appointed - Royal demanded payment on guarantees provided by Isabelle (a shareholder) and others - Royal sued Isabelle and others respecting the guarantees - Isabelle sought an order permitting him to commence an action against Royal in the stead of the trustee in bankruptcy, but in his own name and at his own expense pursuant to s. 38 of the Bankruptcy and Insolvency Act - The motions judge denied the motion - Isabelle appealed - Royal argued that, Isabelle as an inspector in Heritage's bankruptcy was precluded by s. 120(1) from acquiring property of the bankrupt Heritage unless the inspector received prior court approval (which it did not) and he was attempting to act for himself and not the general body of creditors - The New Brunswick Court of Appeal held that there was nothing improper about Isabelle seeking an order under s. 38 even though he was an inspector - It was not clear that Isabelle was not acting in the best interests of the other creditors - They still had a right to participate in the lawsuit and share in the spoils - If successful against Royal, Heritage would be claiming damages which might exceed the amount that Heritage owed Royal - Court approval could be sought under s. 120(1), even at this late stage in the proceedings, having regard to the powers of the court set out in s. 187(9) - If necessary, the court would grant the requisite approval, nunc pro tunc - See paragraph 49.

Bankruptcy - Topic 6423

Administration of estate - Actions by creditors - Parties - A bank (Royal) demanded payment from Heritage pursuant to a credit facility agreement - Heritage made an assignment in bankruptcy - A receiver was appointed - Royal demanded payment on guarantees provided by Isabelle and others - Royal sued Isabelle and others respecting the guarantees - Isabelle sought an order permitting him to commence an action against Royal in the stead of the trustee in bankruptcy, but in his own name and at his own expense pursuant to s. 38 of the Bankruptcy and Insolvency Act - Royal was granted standing to oppose Isabelle's application - The motions judge dismissed Isabelle's motion - Isabelle appealed - The New Brunswick Court of Appeal stated that a potential defendant who was also a creditor of the bankrupt (i.e. Royal) had no right to bring a s. 38 application for the purpose of ensuring that no other creditor obtained an order authorizing that other creditor to initiate a proceeding against the potential defendant - Royal had no right to standing on Isabelle's s. 38 motion - The court was prepared to accept that a motion judge should retain a "narrow discretion" to decide whether a potential defendant should be granted standing on the s. 38 motion brought by a creditor - However, the discretion to grant intervener status was a narrow one and was not to be abused - If there was a "scintilla of evidence" to suggest that the potential defendant was simply engaging in a litigation tactic intended to wear down the s. 38 applicant, the motion judge should refuse to grant the potential defendant standing - However, if standing was granted, the motion judge should specify the extent of the intervener's participation - The court would not have granted Royal the requisite standing as it did more than raise a discrete legal issue - It's objective was to ensure that it remained immune from liability respecting alleged and established wrongdoing and at any cost - However, it was too late to decide whether the motion judge erred in granting standing - Royal had already participated fully in the proceedings and nothing would be achieved by striking it as a party at this late stage - See paragraphs 30 to 40.

Bankruptcy - Topic 6424

Administration of estate - Actions by creditors - Leave of court - [See first Bankruptcy - Topic 6422 ].

Bankruptcy - Topic 6888

Practice - Appeals - Leave to appeal - A bank (Royal) demanded payment from Heritage pursuant to a credit facility agreement - Heritage made an assignment in bankruptcy - A receiver was appointed - Royal demanded payment on guarantees provided by Isabelle (a shareholder) and others - Royal sued Isabelle and others respecting the guarantees - Isabelle sought an order permitting him to commence an action against Royal in the stead of the trustee in bankruptcy, but in his own name and at his own expense pursuant to s. 38 of the Bankruptcy and Insolvency Act - The motions judge denied the motion - Isabelle appealed - Royal sought to quash the appeal, arguing that Isabelle failed to obtain leave to appeal as required by s. 193(e) - Isabelle argued that Heritage's right to proceed against Royal was currently vested in the trustee in bankruptcy, and it was only through a successful s. 38 application that Isabelle would be able to pursue such an action - Therefore, since his ability to proceed would only come into existence once the s. 38 order issued, the appeal was one which involved a "future right" under s. 193(a) and leave to appeal was not required - The New Brunswick Court of Appeal rejected the argument - The weight of authority supported the view that a cause of action that presently existed was not a "future right" merely because a court order was required to pursue it - See paragraphs 15 to 17.

Bankruptcy - Topic 6888

Practice - Appeals - Leave to appeal - A bank (Royal) demanded payment from Heritage pursuant to a credit facility agreement - Heritage made an assignment in bankruptcy - A receiver was appointed - Royal demanded payment on guarantees provided by Isabelle (a shareholder) and others - Royal sued Isabelle and others respecting the guarantees - Isabelle sought an order permitting him to commence an action against Royal in the stead of the trustee in bankruptcy, but in his own name and at his own expense pursuant to s. 38 of the Bankruptcy and Insolvency Act - The motions judge denied the motion - Isabelle appealed - Royal sought to quash the appeal, arguing that Isabelle failed to obtain leave to appeal as required by s. 193(e) - Isabelle argued that refusal to grant his s. 38 motion prevented him from pursuing a claim against Royal for damages suffered by Heritage in excess of $10,000, as contemplated by s. 193(c) - Therefore, leave was not required - The New Brunswick Court of Appeal rejected the argument - The central issue on appeal was whether or not the motion judge erred by failing to consider whether Isabelle, as a guarantor, was a creditor of the bankrupt - Since the issue on appeal did not involve an amount in excess of $10,000, there could be no appeal as of right under s. 193(c) - See paragraphs 19 to 21.

Bankruptcy - Topic 6888

Practice - Appeals - Leave to appeal - A bank (Royal) demanded payment from Heritage pursuant to a credit facility agreement - Heritage made an assignment in bankruptcy - A receiver was appointed - Royal demanded payment on guarantees provided by Isabelle (a shareholder) and others - Royal sued Isabelle and others respecting the guarantees - Isabelle sought an order permitting him to commence an action against Royal in the stead of the trustee in bankruptcy, but in his own name and at his own expense pursuant to s. 38 of the Bankruptcy and Insolvency Act - The motions judge denied the motion - Isabelle appealed - Royal sought to quash the appeal, arguing that Isabelle failed to obtain leave to appeal as required by s. 193(e) of the Act - The New Brunswick Court of Appeal held that leave to appeal should have been sought and obtained prior to the appeal hearing - However, this omission was not fatal - The court had discretion as to whether the appeal should be quashed because of the failure to obtain leave - Section 187(9) of the Act mandated a flexible approach to procedural error and the court also had the authority, under s. 187(11), to extend time "either before or after the expiration thereof on such terms, if any, as it thinks fit to impose." - These provisions were consistent with the approach described in New Brunswick's Rules of Court for other types of proceedings, in order to secure "the just, least expensive and most expeditious determination of every proceeding on its merits" (Rule 1.03(2)) - The Bank had sufficient notice of the matters on appeal, so it could not be said that injustice had resulted from any irregularity - The court granted leave nunc pro tunc - The appeal raised several issues of significance to bankruptcy law and for this reason alone leave should be granted - Further, the granting of leave did not lead to delay as there could be no underlying proceedings until such time as Isabelle was granted a s. 38 order - See paragraphs 5 and 25 to 29.

Bankruptcy - Topic 6888

Practice - Appeals - Leave to appeal - The New Brunswick Court of Appeal held that a bifurcated process for dealing with leave applications and appeals was mandated by the Bankruptcy and Insolvency Act and to be preferred over one that would see both proceedings being dealt with contemporaneously - The court adopted a general rule requiring leave applications to be dealt with independently of the hearing of the appeal - An appellant who was proceeding on the assumption that leave to appeal was not required should move for leave to appeal before a single judge of the appellate court as soon as the respondent raised the issue of whether leave to appeal is required - The onus was on the respondent to bring to the court's attention the appellant's failure to first seek the requisite leave - Otherwise, the court would normally proceed on the basis that leave is not required - See paragraph 25.

Barristers and Solicitors - Topic 660

Duty to court - General principles - Duty to present relevant jurisprudence - The New Brunswick Court of Appeal stated that "[i]t is worth reminding all litigators that effective advocacy does not include the indiscriminate proliferation of issues supported by a plethora of case law. It is not the intended role of an appellate court to sift through countless issues and case law to see whether there is something which 'sticks'. Such litigation tactics obfuscate the true issues and may ultimately undermine the credibility of all advocates and their client's interests. More often than not, the indiscriminate recitation of cases is looked on as an ineffective means of strengthening a weak case. This is why it is important for counsel to be as judicious in their selection of the case law to be cited in support of an argument as it is important to isolate those issues that legitimately advance the interests of their client." - See paragraph 59.

Practice - Topic 7103

Costs - Party and party costs - Special orders - Conduct by party (incl. breach of court rules) - A trustee in bankruptcy decided not to pursue an action by the bankrupt (Heritage) against a bank (Royal) - Isabelle, a guarantor/creditor of Heritage, applied unsuccessfully for a court order authorizing him to pursue the action in his own name and at its own expense and risk under s. 38 of the Bankruptcy and Insolvency Act - Royal had opposed the order - Isabelle appealed - The appeal decision was reserved - Fifteen days after the hearing of the appeal, Isabelle made an assignment in bankruptcy - Royal unsuccessfully brought a motion that the release of the appeal court's decision should be stayed on several grounds (all rejected) given Isabelle's bankruptcy - The New Brunswick Court of Appeal held that "[a]s the motion was conceived in desperation and nurtured by heaps of irrelevant case law and frivolous arguments, the cost award must reflect these realities." - The court awarded Isabelle's trustee in bankruptcy costs of $5,000 respecting the motion - See paragraph 61.

Practice - Topic 8858

Appeals - Bar or loss of right of appeal - Moot issues - [See second and third Bankruptcy - Topic 2308 ].

Practice - Topic 9311

Appeals - Perfecting appeals - Time for - Extension of - A trustee in bankruptcy decided not to pursue an action by the bankrupt (Heritage) against a bank - Isabelle, a guarantor/creditor of Heritage, applied unsuccessfully for a court order authorizing him to pursue the action in his own name and at its own expense and risk under s. 38 of the Bankruptcy and Insolvency Act - The bank had opposed the order - Isabelle appealed - The New Brunswick Court of Appeal was critical of the bank's refusal to consent to an order granting a one-day extension of time for perfecting the appeal - The court stated: "[f]rankly, once the facts of this case are laid bare, one must seriously question whether the Bank's litigation strategy is premised on a 'scorched earth' policy. The highway to this appeal is littered with too many motions, frivolous arguments and the citation of irrelevant case law with one singular objective: to guarantee the Bank's immunization from lawsuit by anyone who seeks damages for its wrongful conduct. Otherwise, why would the Bank refuse to consent to an order granting a one-day extension of time for perfecting the within appeal and force Mr. Isabelle to pursue a motion in this Court so as to obtain the required extension? In my view, the answer is self-evident." - See paragraph 7.

Avocats et notaires - Cote 660

Devoirs judiciaires - Principes généraux - Obligation de présenter une jurisprudence pertinente - [Voir Barristers and Solicitors - Topic 660 ].

Faillite - Cote 440.3

Biens du failli - Biens particuliers - Biens acquis après la faillite - [Voir Bankruptcy - Topic 440.3 ].

Faillite - Cote 2308

Propositions concordataires - Effet - Suspension des procédures - Quelles procédures sont suspendues - [Voir Bankruptcy - Topic 2308 ].

Faillite - Cote 5741

Inspecteurs - Devoirs et pouvoirs - Généralités - [Voir Bankruptcy - Topic 5741 ].

Faillite - Cote 6421

Administration de l'actif - Actions par les créanciers - Généralités - [Voir Bankruptcy - Topic 6421 ].

Faillite - Cote 6422

Administration de l'actif - Actions par les créanciers - Définition de créancier - [Voir Bankruptcy - Topic 6422 ].

Faillite - Cote 6423

Administration de l'actif - Actions par les créanciers - Parties - [Voir Bankruptcy - Topic 6423 ].

Faillite - Cote 6424

Administration de l'actif - Actions par les créanciers - Autorisation du tribunal - [Voir Bankruptcy - Topic 6424 ].

Faillite - Cote 6888

Procédure - Appels - Autorisation d'appel - [Voir Bankruptcy - Topic 6888 ].

Procédure - Cote 7103

Dépens - Dépens entre parties - Ordonnances spéciales - Conduite répréhensible d'une partie (y compris la violation des règles de procédure) - [Voir Practice - Topic 7103 ].

Procédure - Cote 8858

Appels - Empêchement ou perte du droit d'appel - Questions sans portée pratique - [Voir Practice - Topic 8858 ].

Procédure - Cote 9311

Appels - Mis en état de l'appel - Délai - Prorogation - [Voir Practice - Topic 9311 ].

Cases Noticed:

Foss v. Harbottle (1843), 2 Hare 460; 67 E.R. 189, refd to. [para. 11].

Roine Estate - see Northland Bank v. Doyle et al.

Northland Bank v. Doyle et al., [1992] B.C.T.C. Uned. 227; 11 C.B.R.(3d) 133 (S.C.), refd to. [para. 11].

McCarthy (J.) & Sons Co. of Prescott Ltd., Re (1916), 38 O.L.R. 3 (C.A.), refd to. [para. 15].

Catalina Exploration & Development Ltd., Re; Elias and Catalina Exploration & Development Ltd. v. Hutchison (1981), 27 A.R. 1 (C.A.), refd to. [para. 15].

Zammit (Bankrupt), Re (1998), 53 O.T.C. 150 (Gen. Div. Bktcy.), refd to. [para. 16].

Braich (Bankrupt), Re (2007), 250 B.C.A.C. 53; 416 W.A.C. 53; 2007 BCCA 641, refd to. [para. 17].

Galaxy Sports Inc. (Bankrupt), Re (2003), 183 B.C.A.C. 192; 301 W.A.C. 192; 2003 BCCA 322, refd to. [para. 18].

Roe, Hoops & Wong - see McNeill (Bankrupt), Re.

McNeill (Bankrupt), Re (1996), 71 B.C.A.C. 213; 117 W.A.C. 213; 39 C.B.R.(3d) 147 (C.A.), refd to. [para. 18].

Galaxy Sports Inc. (Bankrupt), Re, [2003] B.C.A.C. Uned. 154; 45 C.B.R.(4th) 42; 2003 BCCA 418, refd to. [para. 18].

Gatineau Power Co. v. Cross, [1929] S.C.R. 35, refd to. [para. 19].

Mackin - see Simonelli (Bankrupt), Re.

Simonelli (Bankrupt), Re (2003), 320 A.R. 330; 288 W.A.C. 330; 2003 ABCA 47, refd to. [para. 20].

518494 Ontario Ltd. (Bankrupt), Re (1985), 12 O.A.C. 392 (C.A.), refd to. [para. 25].

Hrebecka (Bankrupt), Re (1999), 12 C.B.R.(4th) 47 (Ont. C.A.), refd to. [para. 26].

United Brotherhood of Carpenters and Joiners of America, Local 1386 v. Bransen Construction Ltd. et al. (2002), 249 N.B.R.(2d) 93; 648 A.P.R. 93; 2002 NBCA 27, refd to. [para. 31].

Nesi Energy Marketing Canada Inc. (Bankrupt), Re (1998), 233 A.R. 347; 1998 ABQB 912 (Bktcy.), refd to. [para. 32].

Donovan (B.) Interiors Ltd., Re (1990), 3 C.B.R.(3d) 196 (N.S.T.D.), refd to. [para. 33].

KPMG Inc. - see Deere (John) Ltd. et al. v. Toner et al.

Deere (John) Ltd. et al. v. Toner et al., [2008] N.B.R.(2d) Uned. 39 (C.A.), refd to. [para. 36].

Grandview Ford Lincoln Sales Ltd. (Bankrupt), Re, [2001] O.T.C. Uned. 101; 22 C.B.R.(4th) 210 (Sup. Ct. Registrar), refd to. [para. 41].

Bank of Nova Scotia v. Holland (1979), 32 C.B.R.(N.S.) 153 (Ont. H.C.), refd to. [para. 41].

Froment, Re, [1925] 3 D.L.R. 377; 5 C.B.R. 765 (Alta. S.C.), refd to. [para. 41].

B.N.R. Holdings Ltd. et al. v. Royal Bank of Canada et al., [1992] B.C.T.C. Uned. 16; 14 C.B.R.(3d) 233 (S.C.), refd to. [para. 41].

Maple City Ford Sales (1986) Ltd. (Bankrupt), Re (1998), 70 O.T.C. 306; 39 O.R.(3d) 702 (Gen. Div.), refd to. [para. 41].

Royal Bank of Canada v. MacKesey (1991), 97 Sask.R. 102; 12 W.A.C. 102; 86 D.L.R.(4th) 637 (C.A.), refd to. [para. 48].

Adams-Eden Furniture Ltd. v. Kansa General Insurance Inc. et al. (1995), 103 Man.R.(2d) 284 (Q.B.), affd. (1996), 113 Man.R.(2d) 142; 131 W.A.C. 142 (C.A.), refd to. [para. 53].

Hunter Douglas Ltd. v. Kool Vent Awnings Ltd. (1957), 37 C.B.R. 154 (Que. S.C. Bktcy.), refd to. [para. 53].

Rea v. Patmore et al. (1999), 253 A.R. 363; 1999 ABQB 1069, refd to. [para. 53].

Hall-Chem Inc. v. Vulcan Packaging Inc. et al. (1994), 75 O.A.C. 74; 21 O.R.(3d) 89 (C.A.), dist. [para. 56].

Mann et al. v. Northern B.C. Enterprises Ltd. (2005), 214 B.C.A.C. 193; 353 W.A.C. 193; 46 C.C.E.L.(3d) 253; 2005 BCCA 367, dist. [para. 58].

Dugas Estate (Bankrupt), Re (2003), 261 N.B.R.(2d) 99; 685 A.P.R. 99 (C.A.), refd to. [para. 60].

HSBC Bank Canada v. Elm City Chrysler Ltd. et al. (2007), 323 N.B.R.(2d) 137; 832 A.P.R. 137 (C.A.), refd to. [para. 60].

Statutes Noticed:

Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, sect. 38 [para. 1].

Authors and Works Noticed:

Houlden, Lloyd W., and Morawetz, Carl H., Bankruptcy and Insolvency Analysis, para. I § 34(1) [para. 15].

Houlden, Lloyd W., Morawetz, Geoffrey B., and Sarra, Janis P., Bankruptcy and Insolvency Law of Canada (2007 Looseleaf Update), paras. C § 46 [paras. 32, 33]; C § 49 [para. 33]; I § 34 [para. 19].

Jackson, David R.M., The Hermaphrodite Litigant: Suing Yourself Under Section 38 of the BIA (2002), 17:2 Nat. Creditor/Debtor Rev. 21, generally [para. 34].

Counsel:

Avocats:

Lee McKeigan-Dempsey, for the appellant;

Hugh J. Cameron, for the respondent.

These motions and appeal were heard on April 16, 2008, by Robertson, Bell and Quigg, JJ.A., of the New Brunswick Court of Appeal. The following decision of the court was delivered by Robertson, J.A., in both official languages on September 25, 2008.