Kopr v. Kopr et al., (2006) 403 A.R. 29 (QB)
Judge | Slatter, J. |
Court | Court of Queen's Bench of Alberta (Canada) |
Case Date | May 26, 2006 |
Citations | (2006), 403 A.R. 29 (QB);2006 ABQB 405 |
Kopr v. Kopr (2006), 403 A.R. 29 (QB)
MLB headnote and full text
Temp. Cite: [2006] A.R. TBEd. JN.076
Marie Kopr (plaintiff) v. Milan Kopr and 795760 Alberta Ltd. (defendants)
In The Matter Of the bankruptcy of Marie Kopr (0303 03069; 24 099267; 2006 ABQB 405)
Indexed As: Kopr v. Kopr et al.
Alberta Court of Queen's Bench
Judicial District of Edmonton
Slatter, J.
June 5, 2006.
Summary:
A common law couple commenced cohabiting in 1997. In October 2002, the wife made an assignment into bankruptcy. In February 2003, the couple separated and, without informing the trustee, the wife brought an action against the husband, claiming an interest in his property due to unjust enrichment. In August 2003, the wife was discharged. In December 2004, the trustee was discharged. The action continued. In November 2005, the husband applied to strike the action, challenging the wife's status to commence it. A cross-application was brought to reappoint the trustee and substitute the trustee as the action's plaintiff.
The Alberta Court of Queen's Bench held that the wife's claim was "property" under the Bankruptcy and Insolvency Act, reappointed the trustee and directed that the trustee be substituted as plaintiff in the action.
Bankruptcy - Topic 427
Property of bankrupt - Particular property - Right or cause of action - A common law couple commenced cohabiting in 1997 - In October 2002, the wife made an assignment into bankruptcy - In February 2003, the couple separated and, without informing the trustee, the wife brought an action against the husband, claiming an interest in his property due to unjust enrichment - The wife was discharged - The trustee was discharged - The action continued - In November 2005, the husband applied to strike the action - A cross-application was brought to reappoint the trustee and substitute the trustee as the action's plaintiff - At issue was whether the wife's claim constituted "property" under s. 2 of the Bankruptcy and Insolvency Act - The Alberta Court of Queen's Bench held that the wife's claim was "property" - A claim for division of matrimonial property appeared to be a contingent right within s. 2 - However, this was a claim for unjust enrichment in a domestic context - As a direct claim that would normally result in a money judgment, the claim was clearly property under s. 2 - Alternatively, as a claim that crystallized while the wife was still an undischarged bankrupt (as of separation), the claim was after-acquired property under s. 67(1)(c) - See paragraphs 9 to 15.
Bankruptcy - Topic 6471
Administration of estate - Actions by bankrupt - General - A common law couple commenced cohabiting in 1997 - In October 2002, the wife made an assignment into bankruptcy - In February 2003, the couple separated and, without informing the trustee, the wife brought an action against the husband, claiming an interest in his property - The wife was discharged - The trustee was discharged - The action continued - In November 2005, the husband applied to strike the action - A cross-application was brought to reappoint the trustee and substitute the trustee as the action's plaintiff - The husband submitted that it was not possible to substitute the trustee because (i) the wife's action was a nullity and (ii) the limitation period had expired - The Alberta Court of Queen's Bench reappointed the trustee and substituted the trustee as plaintiff - As the claim had crystallized while the wife was an undischarged bankrupt, the trustee was the proper plaintiff - There was no limitations impediment to substituting the trustee - Where, as here, the conditions of s. 6 of the Limitations Act were met, it was inappropriate to speak of "nullities" - The husband had adequate notice of the claim within the limitation period - The substituted party related to the same conduct and events as the original claim - The husband was not entitled to immunity simply due to the passage of time - See paragraphs 16 to 26.
Bankruptcy - Topic 6722
Practice - Parties - Status or standing - A common law couple commenced cohabiting in 1997 - In 2002, the wife made an assignment into bankruptcy - In 2003, the couple separated and, without informing the trustee, the wife brought an action against the husband, claiming an interest in his property - The wife was discharged - The trustee was discharged - The action continued - In 2005, the husband applied to strike the action, challenging the wife's status to commence it - A cross-application was brought to reappoint the trustee and substitute the trustee as the action's plaintiff - The wife challenged the husband's standing to raise the issue of status - The Alberta Court of Queen's Bench held that the husband had standing to raise the issue of status - A defendant who was sued by a plaintiff who potentially had no status to commence the action was in a difficult position, standing the risk that the action's true owner could appear later and sue again - A defendant should always be in a position to challenge the status of the plaintiff if only to obtain a court order verifying the true owner of the cause of action - See paragraphs 6 to 8.
Bankruptcy - Topic 8844
Discharge of debtor - Effect of discharge - Respecting property of bankrupt - [See Bankruptcy - Topic 427 ].
Bankruptcy - Topic 9203
Discharge of trustee - General principles - Status of trustee after discharge - [See Bankruptcy - Topic 6471 ].
Bankruptcy - Topic 9244
Discharge of trustee - Effect of discharge - Respecting property of bankrupt - [See Bankruptcy - Topic 427 ].
Bankruptcy - Topic 9248
Discharge of trustee - Effect of discharge - On standing of bankrupt - [See Bankruptcy - Topic 6471 ].
Family Law - Topic 773
Husband and wife - Actions between husband and wife - Property - Where spouse declares bankruptcy - [See Bankruptcy - Topic 427 ].
Practice - Topic 205
Persons who can sue and be sued - Individuals and corporations - Status or standing - General - [See Bankruptcy - Topic 6722 ].
Practice - Topic 224
Persons who can sue and be sued - Individuals and corporations - Status or standing - Bankrupts - [See Bankruptcy - Topic 6471 ].
Practice - Topic 653
Parties - Adding or substituting parties - Adding or substituting plaintiffs - Application of limitation periods - [See Bankruptcy - Topic 6471 ].
Cases Noticed:
Foldy v. D'Amico (1979), 31 C.B.R.(N.S.) 88; 25 O.R.(2d) 485; 104 D.L.R.(3d) 102 (S.C.), dist. [para. 6].
Thompson v. Coulombe (1984), 54 C.B.R.(N.S.) 254 (Que. C.A.), refd to. [para. 8].
Deloitte, Haskins & Sells Ltd. v. Graham (1983), 42 A.R. 76; 47 C.B.R.(N.S.) 172; 32 R.F.L.(2d) 356; 25 Alta. L.R.(2d) 84 (Q.B.), consd. [para. 10].
Tinant v. Tinant (2003), 330 A.R. 148; 299 W.A.C. 148; 15 Alta. L.R.(4th) 225; 2003 ABCA 211, refd to. [para. 11].
Lecerf v. Lecerf (2004), 378 A.R. 69; 33 Alta. L.R.(4th) 151; 2004 ABQB 501, refd to. [para. 11].
Phan v. Lee (2005), 363 A.R. 361; 343 W.A.C. 361; 43 Alta. L.R.(4th) 199; 2005 ABCA 142, refd to. [para. 11].
Walsh v. Bona, [2002] 4 S.C.R. 325; 297 N.R. 203; 210 N.S.R.(2d) 273; 659 A.P.R. 273; 2002 SCC 83, refd to. [para. 12].
Brisson v. Long et al. (1992), 131 A.R. 99; 25 W.A.C. 99; 13 C.B.R.(3d) 181; 3 Alta. L.R.(3d) 79 (C.A.), not folld. [para. 18].
Stout Estate et al. v. Golinowski Estate et al., [2002] 4 W.W.R. 588; 299 A.R. 13; 266 W.A.C. 13; 100 Alta. L.R.(3d) 5; 18 C.P.C.(5th) 146; 43 E.T.R.(2d) 117; 2002 ABCA 49, consd. [para. 23].
Frank v. King Estate - see Frank v. Canada (Minister of Indian Affairs and Northern Affairs).
Frank v. Canada (Minister of Indian Affairs and Northern Affairs) (1987), 88 A.R. 241; 56 Alta. L.R.(2d) 289 (C.A.), refd to. [para. 23].
Modern Livestock Ltd. and Lane v. Kansa General Insurance Co. (1993), 143 A.R. 46; 11 Alta. L.R.(3d) 355; 18 C.C.L.I.(2d) 266 (Q.B.), affd. (1994), 157 A.R. 167; 77 W.A.C. 167; 24 Alta. L.R.(3d) 21; 24 C.C.L.I.(2d) 254 (C.A.), refd to. [para. 24].
Alberta v. Canadian National Railway Co. et al. (2001), 309 A.R. 157; 2 Alta. L.R.(4th) 195; 19 C.P.C.(5th) 306; 2001 ABQB 984, affd. (2003), 320 A.R. 373; 288 W.A.C. 373; 12 Alta. L.R.(4th) 4; 35 C.P.C.(5th) 307; 2003 ABCA 69, refd to. [para. 24].
Bolton Partners v. Lambert (1889), 41 Ch. D. 295 (C.A.), refd to. [para. 25].
Presentaciones Musicales SA v. Secunda, [1994] Ch. 271 (C.A.), refd to. [para. 26].
Statutes Noticed:
Limitations Act, R.S.A. 2000, c. L-12, sect. 6 [para. 17].
Counsel:
R.T.G. Reeson, Q.C., and Alvin Goldsman, for the plaintiff;
Michael J. Penny and Michael Kraus, for the defendants.
Lyle B. Brookes, for the Trustee.
This application was heard on May 26, 2006, by Slatter, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on June 5, 2006.
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