LeRoy (Ted) Trucking Ltd. et al., Re, (2010) 409 N.R. 201 (SCC)

JudgeMcLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
CourtSupreme Court (Canada)
Case DateMay 11, 2010
JurisdictionCanada (Federal)
Citations(2010), 409 N.R. 201 (SCC);2010 SCC 60

LeRoy Trucking Ltd., Re (2010), 409 N.R. 201 (SCC)

MLB headnote and full text

[French language version follows English language version]

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

.........................

Temp. Cite: [2010] N.R. TBEd. DE.024

Century Services Inc. (appellant) v. Attorney General of Canada on behalf of Her Majesty The Queen in Right of Canada (respondent)

(33239; 2010 SCC 60; 2010 CSC 60)

Indexed As: LeRoy (Ted) Trucking Ltd. et al., Re

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

December 16, 2010.

Summary:

A company commenced proceedings under the Companies' Creditors Arrangement Act. The company owed the Crown $305,202 in unremitted GST collections. Under s. 222 of the Excise Tax Act, those funds were deemed to be held in trust for the Crown. As part of a proposal for the distribution of equipment sale proceeds, a chambers judge ordered the company's monitor to hold $305,202 in its trust account pending a further order. The Crown had sought payment of the funds directly to it, but did not appeal the order. The company's restructuring efforts were unsuccessful. The company sought leave to assign itself into bankruptcy. The Crown applied for release of the trust funds.

The British Columbia Supreme Court, in a decision reported at [2008] B.C.T.C. Uned. G36, dismissed the Crown's application. The Crown appealed.

The British Columbia Court of Appeal, in a decision reported at (2009), 270 B.C.A.C. 167; 454 W.A.C. 167, allowed the appeal. The money held in trust was to be released to the Receiver General. The company's major secured creditor appealed.

The Supreme Court of Canada, Abella, J., dissenting, allowed the appeal. The money held in trust was neither subject to a deemed trust or priority in favour of the Crown, nor was it subject to an express trust.

Creditors and Debtors - Topic 8581.1

Debtors' relief legislation - Companies' creditors arrangement legislation - Priorities - The Supreme Court of Canada examined the history of the Companies' Creditors Arrangement Act, its function amidst the body of insolvency legislation and the principles that had been recognized in the jurisprudence, all of which demonstrated that Crown priorities in the insolvency context had been significantly pared down - See paragraphs 10 to 25.

Creditors and Debtors - Topic 8581.1

Debtors' relief legislation - Companies' creditors arrangement legislation - Priorities - Under s. 222(3) of the Excise Tax Act (ETA), unremitted GST collections were deemed held in trust for the Crown - Section 18.3(1) of the Companies' Creditors Arrangement Act (CCAA) nullified the Crown's deemed trusts in CCAA proceedings, except regarding source deductions under the Income Tax Act, the Canada Pension Plan and the Employment Insurance Act - At issue was whether s. 222(3) of the ETA displaced s. 18.3(1) of the CCAA to give priority to the Crown's ETA deemed trust during CCAA proceedings as had been held in Ottawa Senators Hockey Club Corp. et al., Re (2005 Ont. C.A.) - The Supreme Court of Canada concluded that s. 222(3) of the ETA was not intended to narrow the scope of the CCAA's override provision - The court overruled Ottawa Senators and affirmed that s. 18.3 remained effective - The conflict between the ETA and the CCAA was more apparent than real - An analogous provision in the Bankruptcy and Insolvency Act (BIA) nullified statutory deemed trusts - Both the CCAA and the BIA provided exceptions for source deductions - Thus, the Crown's deemed trust and corresponding priority in those source deductions remained effective in both reorganization and bankruptcy - The CCAA and the BIA were in harmony, preserving deemed trusts and asserting Crown priority only in respect of source deductions - There was no express statutory basis for concluding that GST claims enjoyed a preferred treatment - Further, the internal logic of the CCAA militated against upholding the ETA deemed trust for GST - Finally, if the court gave the ETA priority over the CCAA, the Crown would retain priority over GST claims during CCAA proceedings, but not in bankruptcy - This would encourage "statute shopping" by secured creditors - See paragraphs 26 to 56.

Creditors and Debtors - Topic 8581.1

Debtors' relief legislation - Companies' creditors arrangement legislation - Priorities - Under s. 222(3) of the Excise Tax Act (ETA), unremitted GST collections were deemed held in trust for the Crown - Section 18.3(1) of the Companies' Creditors Arrangement Act (CCAA) nullified the Crown's deemed trusts in CCAA proceedings, except regarding source deductions under the Income Tax Act, the Canada Pension Plan and the Employment Insurance Act - At issue was whether s. 222(3) of the ETA displaced s. 18.3(1) of the CCAA to give priority to the Crown's ETA deemed trust during CCAA proceedings as had been held in Ottawa Senators Hockey Club Corp. et al., Re (2005 Ont. C.A.) - The Supreme Court of Canada stated that the "apparent conflict in this case is whether the rule in the CCAA first enacted as s. 18.3 in 1997 ... is overridden by the one in the ETA enacted in 2000 stating that GST deemed trusts operate despite any enactment of Canada except the [Bankruptcy and Insolvency Act (BIA)]" - A line of jurisprudence had resolved the conflict in favour of the ETA - Ottawa Senators, the leading case, decided the matter by invoking the doctrine of implied repeal to hold that the later in time provision of the ETA took precedence over the CCAA - Neither this reasoning nor the result in Ottawa Senators could stand - Section 222(3) of the ETA evinced no explicit intention of Parliament to repeal s. 18.3 of the CCAA - It merely created an apparent conflict that had to be resolved by statutory interpretation - Parliament's intent when it enacted s. 222(3) was therefore far from unambiguous - Had it sought to give the Crown a priority for GST claims, it could have done so explicitly as it did for source deductions - Finally, it was noteworthy that subsequent amendments had not displaced the rule set out in the CCAA - This confirmed that Parliament's intent regarding GST deemed trusts was to be found in the CCAA - See paragraphs 40 to 53 - Fish, J., in concurring reasons, examined the interaction between the CCAA and the ETA, concluding that "Parliament's evident intent was to render GST deemed trusts inoperative upon the institution of insolvency proceedings." - See paragraphs 90 to 113.

Creditors and Debtors - Topic 8581.2

Debtors' relief legislation - Companies' creditors arrangement legislation - Jurisdiction - A company commenced proceedings under the Companies' Creditors Arrangement Act (CCAA) - The company owed the Crown $305,202 in unremitted GST collections - Under s. 222 of the Excise Tax Act (ETA), those funds were deemed held in trust for the Crown - A chambers judge ordered the company's monitor to hold $305,202 in its trust account - The company's restructuring efforts were unsuccessful - The company sought leave to assign itself into bankruptcy - The Crown applied for release of the trust funds - A chambers judge dismissed the Crown's application - The Crown's appeal was allowed - The company's major secured creditor appealed - At issue was the discretionary power of a court supervising a CCAA reorganization - The Supreme Court of Canada held that while the CCAA was silent on the transition from a CCAA reorganization into a Bankruptcy and Insolvency Act (BIA) liquidation, the breadth of the court's discretion under the CCAA was sufficient to construct a bridge to liquidation - The chambers judge had authority under the CCAA to lift the general stay of proceedings under the CCAA, without lifting the stay of the enforcement of the Crown's deemed GST trust, to allow entry into liquidation - In so finding, the court disagreed with the Court of Appeal's conclusion that the order lifting the general stay did not advance the underlying purpose of the CCAA because reorganization efforts had come to an end and the CCAA was accordingly spent - The chambers judge's order staying Crown enforcement of the GST claim ensured that creditors would not be disadvantaged by the attempted reorganization under the CCAA - The effect of the order was to blunt any impulse of creditors to interfere in an orderly liquidation - The order was in furtherance of CCAA objectives to the extent that it allowed a bridge between the CCAA and bankruptcy proceedings - See paragraphs 57 to 77.

Creditors and Debtors - Topic 8584

Debtors' relief legislation - Companies' creditors arrangement legislation - Whether legislation applicable to Crown - [See second and third Creditors and Debtors - Topic 8581.1 ].

Creditors and Debtors - Topic 8588

Debtors' relief legislation - Companies' creditors arrangement legislation - Stay of proceedings (incl. extension of) - [See Creditors and Debtors - Topic 8581.2 ].

Sales and Service Taxes - Topic 5202

Goods and services tax (incl. harmonized sales tax) - Administration, collection and enforcement - General - Trust provisions - [See second and third Creditors and Debtors - Topic 8581.1 ].

Sales and Service Taxes - Topic 5202

Goods and services tax (incl. harmonized sales tax) - Administration, collection and enforcement - General - Trust provisions - A company commenced proceedings under the Companies' Creditors Arrangement Act (CCAA) - The company owed the Crown $305,202 in unremitted GST collections - Under s. 222 of the Excise Tax Act (ETA), those funds were deemed held in trust for the Crown - The company's restructuring efforts were unsuccessful - A chambers judge ordered the company's monitor to hold $305,202 in its trust account - The company sought leave to assign itself into bankruptcy - The Crown applied for release of the trust funds - A chambers judge dismissed the Crown's application - The Crown's appeal was allowed on the basis, inter alia, that the chambers judge had created an express trust in favour of the Crown - The company's major secured creditor appealed - The Supreme Court of Canada allowed the appeal - Creation of an express trust required three certainties: intention, subject matter and object - Here, there was no certainty to the object (i.e., the beneficiary) sufficient to support an express trust - At the time of the order, there was a dispute between the company's major secured creditor and the Crown over part of the proceeds of the sale of the company's assets - The court's solution was to accept the company's proposal to segregate the monies until the dispute could be resolved - Thus, there was no certainty that the Crown would be the beneficiary of the trust - The chambers judge's order denying the Crown's application to enforce the trust once it was clear that bankruptcy was inevitable confirmed the absence of a clear beneficiary required to ground an express trust - See paragraphs 82 to 87.

Statutes - Topic 502

Interpretation - General principles - Intention of legislature - [See third Creditors and Debtors - Topic 8581.1 ].

Statutes - Topic 1402

Interpretation - Construction where meaning is not plain - Intention of legislature - [See third Creditors and Debtors - Topic 8581.1] .

Statutes - Topic 1409.1

Interpretation - Construction where meaning is not plain - Resolution of conflicts with other statutes - [See third Creditors and Debtors - Topic 8581.1 ].

Statutes - Topic 6229

Operation and effect - Effect on earlier statutes - Implied repeals - Arising out of conflict of provisions - [See third Creditors and Debtors - Topic 8581.1 ].

Trusts - Topic 372

Creation of trust - Purpose or object - Certainty of objects - [See second Sales and Service Taxes - Topic 5202 ].

Trusts - Topic 581

Creation of trust - Certainty of beneficiary - General - [See second Sales and Service Taxes - Topic 5202 ].

Cases Noticed:

Ottawa Senators Hockey Club Corp. et al., Re (2005), 193 O.A.C. 95; 73 O.R.(3d) 737 (C.A.), agreed with [para. 117]; overruled [para. 7]; refd to. [para. 93].

Reference Re Companies' Creditors Arrangement Act (Canada), [1934] S.C.R. 659, refd to. [para. 16].

Quebec (Revenue) v. Caisse populaire Desjardins de Montmagny - see 9083-4185 Québec Inc. (Bankrupt), Re.

9083-4185 Québec Inc. (Bankrupt), Re, [2009] 3 S.C.R. 286; 394 N.R. 368; 2009 SCC 49, refd to. [para. 23].

Deputy Minister of Revenue v. Rainville - see Bourgault's Estate v. Quebec (Deputy Minister of Revenue).

Bourgault's Estate v. Quebec (Deputy Minister of Revenue), [1980] 1 S.C.R. 35; 30 N.R. 24, refd to. [para. 23].

Gauntlet Energy Corp., Re (2003), 352 A.R. 28; 30 Alta. L.R.(4th) 192; 2003 ABQB 894, refd to. [para. 24].

Komunik Corp. (Arrangement relatif à), Re, 2009 QCCS 6332, leave to appeal granted 2010 QCCA 183, refd to. [para. 27].

Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411; 208 N.R. 161; 193 A.R. 321; 135 W.A.C. 321, refd to. [para. 33].

First Vancouver Finance v. Minister of National Revenue et al., [2002] 2 S.C.R. 720; 288 N.R. 347; 219 Sask.R. 185; 272 W.A.C. 185; 2002 SCC 49, refd to. [para. 33].

Solid Resources Ltd., Re (2002), 40 C.B.R.(4th) 219 (Alta. Q.B.), refd to. [para. 41].

Doré v. Verdun (Ville), [1997] 2 S.C.R. 862; 215 N.R. 81, refd to. [paras. 43, 126].

Metcalfe & Mansfield Alternative Investments II Corp. et al., Re (2008), 240 O.A.C. 245; 92 O.R.(3d) 513; 2008 ONCA 587, refd to. [para. 57].

Dylex Ltd., Re (1995), 31 C.B.R.(3d) 106 (Ont. Gen. Div.), refd to. [para. 57].

Elan Corp. and Nova Metal Products Inc. v. Comiskey (1990), 41 O.A.C. 282 (C.A.), refd to. [para. 59].

Chef Ready Foods Ltd. v. Hongkong Bank of Canada (1990), 51 B.C.L.R.(2d) 84 (C.A.), refd to. [para. 60].

Pacific National Lease Holding Corp. et al., Re (1992), 19 B.C.A.C. 134; 34 W.A.C. 134 (C.A.), refd to. [para. 60].

Canadian Airlines Corp., Re (2000), 265 A.R. 201; 84 Alta. L.R.(3d) 9; 2000 ABQB 442, refd to. [para. 60].

Air Canada et al., Re, [2003] O.T.C. Uned. A74; 42 C.B.R.(4th) 173 (Sup. Ct.), refd to. [para. 60].

Air Canada et al., Re, [2003] O.T.C. Uned. A26; 2003 CanLII 49366 (Sup. Ct.), refd to. [para. 60].

Canadian Red Cross Society, Re, [2000] O.T.C. 661; 19 C.B.R.(4th) 158 (Sup. Ct.), refd to. [para. 60].

Skydome Corp., Re (1998), 16 C.B.R.(4th) 118 (Ont. Gen. Div.), refd to. [para. 62].

United Used Auto & Truck Parts Ltd. et al., Re (2000), 135 B.C.A.C. 96; 221 W.A.C. 96; 2000 BCCA 146, affing. (1999), 22 B.C.T.C. 268; 12 C.B.R.(4th) 144 (S.C.), refd to. [para. 62].

Skeena Cellulose Inc. et al., Re (2003), 184 B.C.A.C. 54; 302 W.A.C. 54; 13 B.C.L.R.(4th) 236; 2003 BCCA 344, refd to. [para. 64].

Stelco Inc. et al., Re (2005), 196 O.A.C. 142; 75 O.R.(3d) 5 (C.A.), refd to. [para. 64].

Philip's Manufacturing Ltd. v. Coopers & Lybrand Ltd. (1992), 15 B.C.A.C. 247; 27 W.A.C. 247; 9 C.B.R.(3d) 25 (C.A.), refd to. [para. 71].

Ivaco Inc., Re (2006), 83 O.R.(3d) 108 (C.A.), refd to. [para. 78].

Tele-Mobile Co. v. Ontario et al., [2008] 1 S.C.R. 305; 372 N.R. 157; 235 O.A.C. 369; 2008 SCC 12, refd to. [para. 121].

Canada (Attorney General) v. Public Service Staff Relations Board (Can.), [1977] 2 F.C. 663; 14 N.R. 257 (F.C.A.), refd to. [para. 129].

Statutes Noticed:

Companies' Creditors Arrangement Act, R.S.C. 1985, c. C-36, sect. 18.3(1) [para. 37].

Excise Tax Act, R.S.C. 1985, c. E-15, sect. 222(3) [para. 34].

Authors and Works Noticed:

Canada, Advisory Committee on Bankruptcy and Insolvency, Proposed Bankruptcy Act Amendments: Report of the Advisory Committee on Bankruptcy and Insolvency (1986), generally [paras. 20, 23].

Canada, House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Consumer and Corporate Affairs and Government Operations, Issue No. 15 (October 3, 1991), pp. 15:15 to 15:16 [para. 20].

Canada, Industry Canada, Marketplace Framework Policy Branch, Report on the Operation and Administration of the Bankruptcy and Insolvency Act and the Companies' Creditors Arrangement Act (2002), p. 41 [para. 21].

Canada, Insolvency Institute and Canadian Association of Insolvency and Restructuring Professionals, Joint Task Force on Business Insolvency Law Reform, Report (March 15, 2002), Schedule B, proposal 71, pp. 37, 38 [para. 120].

Canada, Insolvency Institute and Canadian Association of Insolvency and Restructuring Professionals, Legislative Review Task Force (Commercial), Report on the Commercial Provisions of Bill C-55 (2005), generally [para. 120].

Canada, Senate, Debates of the Senate, vol. 142, 1st Sess., 38th Parliament (November 23, 2005), p. 2147 [para. 131].

Canada, Standing Senate Committee on Banking, Trade and Commerce Report, Debtors and Creditors Sharing the Burden: A Review of the Bankruptcy and Insolvency Act and the Companies' Creditors Arrangement Act (2003), generally [para. 120].

Canada, Study Committee on Bankruptcy and Insolvency Legislation, Bankruptcy and Insolvency: Report of the Study Committee on Bankruptcy and Insolvency Legislation (1970), generally [para. 20].

Côté, Pierre-André, Beaulac, Stéphane, and Devinat, Mathieu, Interprétation des lois (4th Ed. 2009), para. 1335 [para. 127].

Côté, Pierre André, Interpretation of Legislation in Canada (3rd Ed. 2000), pp. 358 [paras. 125, 127]; 359 [para. 126].

Edwards, Stanley E., Reorganizations under the Companies' Creditors Arrangement Act (1947), 25 Can. Bar Rev. 587, pp. 592, 593 [para. 18].

Jackson, Georgina R., and Sarra, Janis P., Selecting the Judicial Tool to get the Job Done: An Examination of Statutory Interpretation, Discretionary Power and Inherent Jurisdiction in Insolvency Matters, in Sarra, Janis P., Annual Review of Insolvency Law 2007 (2008), pp. 42, 94 [para. 65].

Jones, Richard B., The Evolution of Canadian Restructuring: Challenges for the Rule of Law, in Sarra, Janis P., Annual Review of Insolvency Law 2005 (2006), pp. 481 [para. 21]; 484 [para. 58].

Lamer, Francis L., Priority of Crown Claims in Insolvency (1996) (2010 Looseleaf Supp., Release 1), § 2 [para. 30].

Morgan, Barbara K., Should the Sovereign be Paid First? A Comparative International Analysis of the Priority for Tax Claims in Bankruptcy (2000), 74 Am. Bank. L.J. 461, p. 500 [para. 29].

Sarra, Janis, Creditor Rights and the Public Interest: Restructuring Insolvent Corporations (2003), pp. 12 [para. 16]; 13 [paras. 16, 17]; 14, 15 [para. 17]; 181 to 192, 195 to 214, 217 to 226 [para. 60].

Sarra, Janis P., Annual Review of Insolvency Law 2005 (2006), pp. 481 [para. 21]; 484 [para. 58].

Sarra, Janis P., Annual Review of Insolvency Law 2007 (2008), pp. 42, 94 [para. 65].

Sarra, Janis P., Rescue! The Companies' Creditors Arrangement Act (2007), pp. 93 to 115 [para. 62].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 346 [para. 125]; 347 [paras. 125, 132].

Waters, Donovan W.M., The Law of Trusts in Canada (3rd Ed. 2005), pp. 28 to 29, fn. 42 [para. 83].

Wood, Roderick J., Bankruptcy and Insolvency Law (2009), pp. 2, 3 [para. 22]; 16 [para. 12].

Counsel:

Mary I.A. Buttery, Owen J. James and Matthew J.G. Curtis, for the appellant;

Gordon Bourgard, David Jacyk and Michael J. Lema, for the respondent.

Solicitors of Record:

Fraser Milner Casgrain, Vancouver, B.C., for the appellant;

Department of Justice, Vancouver, B.C., for the respondent.

This appeal was heard on May 11, 2010, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. On December 16, 2010, the court's decision was released in both official languages, including the following opinions:

Dechamps, J. (McLachlin, C.J.C., Binnie, LeBel, Charron, Rothstein and Cromwell, JJ., concurring) - see paragraphs 1 to 89;

Fish, J., concurring - see paragraphs 90 to 113;

Abella, J., dissenting - see paragraphs 114 to 136.

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