Kriegman v. Wilson, (2016) 385 B.C.A.C. 111 (CA)

• Jurisdiction: British Columbia
• Court: Court of Appeal (British Columbia)
• Judge: Bennett, Stromberg-Stein and Savage, JJ.A.
• Citation: (2016), 385 B.C.A.C. 111 (CA),2016 BCCA 122
• Date: 18 February 2016

Kriegman v. Wilson (2016), 385 B.C.A.C. 111 (CA);

    665 W.A.C. 111

MLB headnote and full text

Temp. Cite: [2016] B.C.A.C. TBEd. MR.031

Bruce P. Kriegman, solely in his capacity as court-appointed Chapter 11 Trustee for LLS America LLC (respondent/plaintiff) v. Ana Wilson (appellant/defendant)

(CA42710; 2016 BCCA 122)

Indexed As: Kriegman v. Wilson

British Columbia Court of Appeal

Bennett, Stromberg-Stein and Savage, JJ.A.

March 16, 2016.

Summary:

The appellant appealed from the order of Affleck, J., in which he dismissed the appellant's application to set aside registration of a foreign judgment based on a bankruptcy proceeding. The respondent was the bankruptcy trustee of a company involved in United States bankruptcy proceedings commenced in Nevada in July 2009 and continued in the United States Bankruptcy Court for the Eastern District of Washington ("Washington Court"). Affleck, J., found that he was inclined to set aside the Registration Order because the appellant was not "duly served" with the process of the Washington Court, nor did she appear or defend or attorn to the jurisdiction of that Court. However, he held that he did not have jurisdiction to do so in the face of s. 34(1)(b) of the Court Order Enforcement Act (B.C.) ("COEA"), which required the appellant to apply to set aside the Registration Order within one month of receiving notice of it. At issue on the appeal was: (1) whether the court below was correct in deciding that it could not extend the time limit in s. 34(1)(b) of the COEA to allow the appellant to challenge registration of the Foreign Judgment; (2) whether the time limit in the COEA was inapplicable because registration of the Foreign Judgment was in any event a nullity; and (3) whether the court below was correct in finding that it lacked jurisdiction to either extend the time for the appellant to set aside the Registration Order or otherwise challenge registration of the Foreign Judgment because of its inherent jurisdiction.

The British Columbia Court of Appeal dismissed the appeal. The one-month limitation on setting aside foreign judgments in s. 34(1)(b) of the COEA was a statutory prescription. Section 24 of the Law and Equity Act did not empower the court to relieve a party from the limitation prescribed by s. 34(1)(b). Characterizing a defect (in the process leading up to obtaining a superior court order) as creating a "nullity" did not escape the application of s. 34 as a matter of statutory interpretation. An order of a superior court of record was binding and conclusive unless set aside on appeal. Section 34(2) of the COEA made it clear that the court could set aside registration on any of the grounds referred to in s. 29(6) on terms that the court found fit, provided the application was made in a timely way. It was a code for the grounds on which registration of a foreign judgment might be set aside. "Inherent jurisdiction" was not a basis upon which the statutory procedure and prescription set out in s. 34 the COEA could be avoided. Where there were no grounds raised on which the Registration Order could be set aside, it was unnecessary to determine whether the Registration Order could have been set aside on a timely application under s. 34(1)(b).

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction - See paragraphs 71 to 74.

Practice - Topic 2388

Nullities and irregularities - Nullity - General - See paragraphs 47 to 70.

Practice - Topic 2391

Nullities and irregularities - Time for objection - See paragraphs 47 to 70.

Practice - Topic 5936

Judgments and orders - Enforcement of foreign judgments - Registration - Setting aside - See paragraphs 1 to 79.

Counsel:

P.J. Roberts and J.R. Pollard, for the appellant;

G.J. Tucker, Q.C., and J.W. Zaitsoff, for the respondent.

This appeal was heard on February 18, 2016, by Bennett, Stromberg-Stein and Savage, JJ.A., of the British Columbia Court of Appeal. Savage, J.A., delivered the following decision for the court on March 16, 2016.