Laperrière v. MacLeod et al., 2011 FCA 4

• Judge: Blais, C.J., Noël and Nadon, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: November 23, 2010
• Jurisdiction: Canada (Federal)
• Citations: 2011 FCA 4;(2011), 411 N.R. 174 (FCA)

Laperrière v. MacLeod (2011), 411 N.R. 174 (FCA)

MLB headnote and full text

Temp. Cite: [2011] N.R. TBEd. JA.021

Sylvie Laperrière, in her capacity as Senior Analyst - Professional Conduct - of the Office of the Superintendent of Bankruptcy (appellant) v. Allen W. MacLeod and D. & A. MacLeod Company Ltd. (respondents)

(A-66-10; 2011 FCA 4)

Indexed As: Laperrière v. MacLeod et al.

Federal Court of Appeal

Blais, C.J., Noël and Nadon, JJ.A.

January 13, 2011.

Summary:

Laperrière, an analyst with the Office of the Superintendent of Bankruptcy, alleged numerous professional conduct breaches by Allen W. MacLeod and D. & A. MacLeod Company Ltd. (bankruptcy trustees). A Delegate of the Superintendent rejected most of the allegations, but imposed a reprimand against the trustees for delay in the administration of two estates. Laperrière applied for judicial review.

The Federal Court, in a decision reported at 362 F.T.R. 189, allowed the application in part. The reviewing judge returned the case to the Delegate solely for the purpose of determining the appropriate remedial measures or sanctions, if any, that were warranted concerning the proven allegations. Laperrière appealed. At issue was whether the reviewing judge erred in upholding the Delegate's finding that the trustees had established a defence of due diligence with respect to contraventions relating to applications for trustee discharge while having a bank balance in the estate account; statements of receipts and disbursements; and co-mingling of funds in consolidated trust accounts.

The Federal Court of Appeal allowed the appeal.

Bankruptcy - Topic 2637

Trustees - Discipline - Standard of review - At issue was whether a reviewing judge erred in finding that it was reasonable for a Delegate of the Superintendent of Bankruptcy to conclude that the trustees in bankruptcy had met their burden of proving a defence of due diligence with regard to alleged breaches of professional conduct provisions - The Federal Court of Appeal stated that "the judicial review of questions of mixed fact and law presents an additional challenge for reviewing judges. If an extricable question of law can be identified in the question of mixed fact and law put before the decision-maker, this question must be reviewed on the appropriate basis. If the extricable question of law is of 'central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise', it must be reviewed on the standard of correctness ... Conversely, if the extricable question of law involves the decision-maker's interpretation of a statute 'with which [he] will have particular familiarity', it will generally attract the application of the reasonableness standard" - See paragraph 25.

Bankruptcy - Topic 2637

Trustees - Discipline - Standard of review - This appeal was concerned with a finding of a Delegate of the Superintendent of Bankruptcy that the trustees in bankruptcy had established a defence of due diligence with respect to certain violations of professional conduct provisions - The violations were listed under headings B, E and H - The reviewing judge upheld the Delegate's finding that the trustees had established a defence of due diligence - The Federal Court of Appeal first determined that the judge's failure to separately examine the Delegate's interpretation of the standard required to establish a defence of due diligence under the correctness standard was an error of law - "[H]is review of the Delegate's decision with respect to headings B, E and H failed to distinguish between the merits of the Delegate's findings and the legal standard against which these findings were made. The Judge simply qualified the issue of whether a defence of due diligence had been established by the respondents as a question of mixed fact and law and felt it appropriate to generally show deference to the Delegate's findings on this point" - See paragraph 27.

Bankruptcy - Topic 2639

Trustees - Discipline - Defences (incl. due diligence) - A Delegate of the Superintendent of Bankruptcy found that the trustees in bankruptcy had established a defence of due diligence with respect to certain infractions of professional conduct provisions - The reviewing judge upheld the finding - The Federal Court of Appeal allowed the appeal - In reasons for judgment by Blais, C.J., concurred in by Nadon, J.A., the reviewing judge's failure to separately examine the Delegate's interpretation of the standard required to establish a defence of due diligence under the correctness standard was an error of law - Further, the Delegate determined that a defence of due diligence had successfully been established, on the basis of irrelevant criteria - He also failed to hold the trustees to the correct burden of proof, namely to demonstrate on a balance of probabilities that they took all reasonable steps to avoid committing the specific infractions - Further, even if the Delegate had applied the appropriate criteria, there was no evidence in the record which could support the finding that all reasonable care was exercised to prevent the infractions from occurring - See paragraph 37.

Bankruptcy - Topic 2639

Trustees - Discipline - Defences (incl. due diligence) - A Delegate of the Superintendent of Bankruptcy found that the trustees in bankruptcy had established a defence of due diligence with respect to certain infractions of professional conduct provisions - The Delegate found that the contraventions were the result of administrative errors, the creditors were not prejudiced, the trustees did not benefit and the amounts involved represented a very small fraction of the total value of the estates under the trustees' administration - The reviewing judge upheld the finding - The Federal Court of Appeal allowed the appeal - In concurring reasons, Noël, J.A., stated that "[g]iving effect to the defence of due diligence as defined by the case law, it is apparent that none of the factors relied upon by the Delegate were capable of establishing such a defence" - See paragraphs 49 and 50 - There was no merit in the trustees' submission that the due diligence standard was inappropriate in the case of the Bankruptcy and Insolvency Act - Applying that standard, it was not open to the Delegate to hold, on the record before him, that the defence had been made out - It followed that the reviewing judge was bound to intervene and that he erred in failing to do so - See paragraphs 51 to 56.

Cases Noticed:

R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299; 21 N.R. 295, refd to. [paras. 6, 49].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 10].

Gordon Capital Corp. v. Ontario Securities Commission (1991), 50 O.A.C. 258 (Div. Ct.), refd to. [para. 12].

Carruthers v. College of Nurses (Ont.) (1996), 96 O.A.C. 41; 31 O.R.(3d) 377 (Div. Ct.), refd to. [para. 12].

Canada (Attorney General) v. Roy (2007), 381 N.R. 36; 2007 FCA 410, refd to. [para. 12].

Roy v. Laperrière - see Roy v. Poitras et al.

Roy v. Poitras et al. (2006), 306 F.T.R. 83; 2006 FC 1386, refd to. [para. 15].

Corporation de l'École Polytechnique v. Canada (2004), 325 N.R. 64; 2004 FCA 127, refd to. [para. 18].

Cata International Inc. v. Minister of National Revenue, [2004] F.T.R. Uned. B34; 2004 FC 663, refd to. [paras. 18, 49].

Samson v. Minister of National Revenue, [2007] F.T.R. Uned. 650; 2007 FC 975, refd to. [paras. 18, 49].

Telfer v. Canada Revenue Agency (2009), 386 N.R. 212; 2009 FCA 23, refd to. [para. 22].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2005), 335 N.R. 229; 2005 SCC 40, refd to. [para. 22].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 22].

Canada (Attorney General) v. Shneidman (2007), 365 N.R. 285; 2007 FCA 192, refd to. [para. 22].

Davies v. Canada (Attorney General) et al. (2005), 330 N.R. 283; 2005 FCA 41, refd to. [para. 22].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 22].

Democracy Watch v. Campbell et al. (2009), 387 N.R. 261; 2009 FCA 79, refd to. [para. 24].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 24].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 25].

R. v. Rio Algom Ltd. (1988), 29 O.A.C. 349; 66 O.R.(2d) 674 (C.A.), refd to. [para. 26].

R. v. Imperial Oil Ltd. (2000), 144 B.C.A.C. 118; 236 W.A.C. 118; 2000 BCCA 553, refd to. [paras. 26, 49].

Ghilzon v. Royal College of Dental Surgeons (Ont.) (1979), 22 O.R.(2d) 756 (H.C.), refd to. [para. 26].

Stuart v. College of Teachers (B.C.), [2005] B.C.T.C. 645; 2005 BCSC 645, refd to. [para. 26].

Sheriff et al. v. Canada (Attorney General), [2005] F.T.R. Uned. B93; 137 A.C.W.S.(3d) 1102; 2005 FC 305, refd to. [para. 26].

R. v. Raham (J.) (2010), 260 O.A.C. 143; 2010 ONCA 206, refd to. [para. 33].

R. v. Kurtzman (1991), 50 O.A.C. 20; 4 O.R.(3d) 417 (C.A.), refd to. [paras. 33, 49].

R. v. Emil K. Fishing Corp. (2008), 262 B.C.A.C. 275; 441 W.A.C. 275; 2008 BCCA 490, refd to. [para. 33].

R. v. Alexander (B.) (1999), 171 Nfld. & P.E.I.R. 74; 525 A.P.R. 74 (Nfld. C.A.), refd to. [paras. 33, 49].

Pillar Oilfield Projects Ltd. v. Canada, [1993] T.C.J. No. 764, refd to. [paras. 34, 49].

Millette v. Le Comité de surveillance de l'Association des courtiers, [2004] J.Q. no 8844; 2004 CanLII 7074 (Civ. Div.), affd. 2006 QCCA 711, refd to. [paras. 36, 49].

R. v. Wholesale Travel Group Inc. and Chedore (1989), 35 O.A.C. 331 (C.A.), refd to. [para. 37].

Canada Post Corp. v. Public Service Alliance of Canada et al. (2010), 399 N.R. 127; 2010 FCA 56, refd to. [para. 42].

R. v. Emonts, [2007] O.J. No. 1206 (C.J.), refd to. [para. 49].

R. v. Pilen Construction of Canada Ltd., [1999] O.J. No. 5650 (C.J.), refd to. [para. 49].

R. v. Cooke (1989), 78 Sask.R. 141 (Q.B.), refd to. [para. 49].

Chauvin v. Beaucage, 2008 QCCA 922, refd to. [para. 49].

Chauvin v. Sheehan, 2010 QCCQ 1512, refd to. [para. 49].

Latulippe v. Médecins, 1998 QCTP 1687, refd to. [para. 49].

Authors and Works Noticed:

Poirier, S., La discipline professionnelle au Québec (1998), pp. 38 [para. 49]; 39 [paras. 36, 49].

Counsel:

Bernard Letarte and Benoît de Champlain, for the appellant;

J. Alden Christian and Julia J. Martin, for the respondents.

Solicitors of Record:

Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;

Doucet McBride LLP/s.r.l., Ottawa, Ontario, for the respondents.

This appeal was heard at Ottawa, Ontario, on November 23, 2010, before Blais, Noël and Nadon, JJ.A., of the Federal Court of Appeal. The Court of Appeal delivered the following judgment and reasons for judgment, dated January 13, 2011:

Blais, C.J. (Nadon, J.A., concurring) - see paragraphs 1 to 40;

Noël, J.A. (concurring reasons) - see paragraphs 41 to 57.