MacKay (Bankrupt), Re, 2002 ABQB 598

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 16, 2002
• Citations: 2002 ABQB 598;(2002), 318 A.R. 315 (QB Reg.)

MacKay (Bankrupt), Re (2002), 318 A.R. 315 (QB Reg.)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. JL.015

In The Matter Of the Bankruptcy of Robert John MacKay

(Action No. Bk03 59306; 2002 ABQB 598)

Indexed As: MacKay (Bankrupt), Re

Alberta Court of Queen's Bench

Judicial District of Edmonton

Funduk, Registrar in Bankruptcy

June 19, 2002.

Summary:

After being granted a conditional discharge, but while still in bankruptcy, the bankrupt sold his co-owned principal residence. The sale netted the bankrupt $21,375 above his $20,000 exemption. The bankrupt refused to pay the $21,375 to the trustee. The trustee declined to challenge the bankrupt's position. A creditor (CIBC) obtained an order under s. 38 of the Bankruptcy and Insolvency Act authorizing it to commence proceedings in its own name for entitlement to the $21,375. CIBC applied for an order that the bankrupt pay the $21,375 to it.

A Registrar of the Alberta Court of Queen's Bench, in Bankruptcy, dismissed the application where CIBC should have raised the issue at the time of the discharge application at the latest.

Bankruptcy - Topic 440.3

Property of bankrupt - Particular property - After-acquired property - After being granted a conditional discharge, but while still in bankruptcy, the bankrupt sold his co-owned principal residence - The sale netted the bankrupt $21,375 above his $20,000 exemption - A Registrar of the Alberta Court of Queen's Bench, in Bankruptcy, disagreed with a submission that what the bankrupt netted above his exemption was after acquired property - The Registrar stated that "I agree with those that say that if property which vests in the trustee on the date of bankruptcy increases in value while vested in the trustee the increase in value is not after acquired property" - See paragraphs 105 to 108.

Bankruptcy - Topic 485

Property of bankrupt - Exemptions or exclusions - Homestead property - [See both Bankruptcy - Topic 492 ].

Bankruptcy - Topic 492

Property of bankrupt - Exemptions or exclusions - Time for determination of - After being granted a conditional discharge, but while still in bankruptcy, the bankrupt sold his co-owned principal residence - The sale netted the bankrupt $21,375 above his $20,000 exemption - A creditor (CIBC) obtained an order under s. 38 of the Bankruptcy and Insolvency Act authorizing it to commence proceedings in its own name for entitlement to the $21,375 - CIBC applied for an order that the bankrupt pay the $21,375 to it - A Registrar of the Alberta Court of Queen's Bench, in Bankruptcy, rejected the bankrupt's argument that the relevant value of the bankrupt's equity in the house was the value at the date of the bankruptcy - See paragraphs 30 to 73.

Bankruptcy - Topic 492

Property of bankrupt - Exemptions or exclusions - Time for determination of - After being granted a conditional discharge, but while still in bankruptcy, the bankrupt sold his co-owned principal residence - The sale netted the bankrupt $21,375 above his $20,000 exemption - A creditor (CIBC) obtained an order under s. 38 of the Bankruptcy and Insolvency Act authorizing it to commence proceedings in its own name for entitlement to the $21,375 - CIBC applied for an order that the bankrupt pay the $21,375 to it - A Registrar of the Alberta Court of Queen's Bench, in Bankruptcy, dismissed the application - The Registrar held that the discharge application was the latest time that the issue of surplus equity in limited exemptions property was to be dealt with - CIBC did not raise the issue until after the house was sold some months after the conditional discharge order - See paragraphs 80 to 110.

Courts - Topic 5

Stare decisis - Authority of judicial decisions - General principles - Authority and use of precedents - General - A Registrar of the Alberta Court of Queen's Bench, in Bankruptcy, stated that a decision on an ex parte application had no weight as precedent because it was a decision based on a one-sided story - See paragraph 33.

Practice - Topic 5801

Judgments and orders - Ex parte orders - General - [See Courts - Topic 5 ].

Cases Noticed:

Dodyk (Bankrupt), Re (2001), 290 A.R. 362; 92 Alta. L.R.(3d) 296 (Q.B. Reg.), not folld. [para. 2].

Gruber (Bankrupt), Re, [1993] 8 W.W.R. 224; 143 A.R. 301 (Q.B. Bktcy.), consd. [para. 2].

ICI Paints v. Gazelle (2001), 343 A.R. 1; 24 C.B.R.(4th) 54 (Q.B.), consd. [para. 2].

Rassell (Bankrupt), Re (1999), 237 A.R. 136; 197 W.A.C. 136 (C.A.), refd to. [para. 2].

Nova, An Alberta Corp. v. Will Farms Ltd. (1981), 31 A.R. 378 (C.A.), refd to. [para. 27].

Michael Abrahams Sons & Co. v. Buckley, [1924] 1 K.B. 903 (K.B.), refd to. [para. 35].

Ramgotra (Bankrupt), Re, [1996] 1 S.C.R. 325; 193 N.R. 186; 141 Sask.R. 81; 114 W.A.C. 81, consd. [para. 38]

Royal Bank of Canada v. North American Life Assurance Co. and Ramgotra - see Ramgotra (Bankrupt), Re.

Mearns (Bankrupt), Re (2000), 261 A.R. 168; 225 W.A.C. 168; 84 Alta. L.R.(3d) 1 (C.A.), refd to. [para. 38].

Holthuysen (Trustee of) v. Holthuysen (1986), 49 Alta. L.R.(2d) 25 (C.A.), consd [para. 41].

Re Pearson (1977), 23 C.B.R.(N.S.) 44 (Ont. S.C.), consd. [para. 46].

Wilson (Bankrupt), Re (1996), 178 A.R. 237; 110 W.A.C. 237; 37 Alta. L.R.(3d) 260 (C.A.), refd to. [para. 48].

Alberta Treasury Branches v. Wilson - see Wilson (Bankrupt), Re.

Direct Rental Centre (West) Ltd. v. Waring (A.C.) & Associates Inc. (2001), 299 A.R. 39; 266 W.A.C. 39; 205 D.L.R.(4th) 651 (C.A.), refd to. [para. 48].

McCallum (Bankrupt), Re (2001), 283 A.R. 282 (Q.B. Reg.), refd to. [para. 52].

Hill, Re (1998), 6 C.B.R.(4th) 38 (Alta. Q.B. Bktcy.), refd to. [para. 60].

Nelson (Bankrupt) Re; Pinder (Jeffrey) & Associates Ltd. v. Nelson (1995), 133 Sask.R. 178; 33 C.B.R.(3d) 292 (Q.B.), refd to. [para. 78].

Davey (Bankrupt), Re (1999), 96 O.T.C. 351; 44 O.R.(3d) 327 (Sup. Ct.), refd to. [para. 78].

Rogers, Re (1993), 18 C.B.R.(3d) 239 (N.S.S.C.), refd to. [para. 78].

Larocque, Re (1982), 43 C.B.R.(N.S.) 24 (Ont. S.C.), refd to. [para. 78].

Sawatsky (Bankrupt), Re (2001), 295 A.R. 282; 28 C.B.R.(4th) 116 (Q.B. Reg.), refd to. [para. 78].

Deloitte, Haskins & Sells Ltd. v. Zemlak (Bankrupt), [1987] 6 W.W.R. 144; 58 Sask.R. 203; 42 D.L.R.(4th) 395; 66 C.B.R.(N.S.) 1 (C.A.), agreed with [para. 81].

Counsel:

D.A. Bodner (Lucas Bowker & White LLP), for Canadian Imperial Bank of Commerce;

M.J. McCabe, Q.C. (Reynolds Mirth Richards & Farmer), for the bankrupt.

This application was heard on April 16, 2002, before Funduk, Registrar in Bankruptcy, of the Alberta Court of Queen's Bench, who delivered the following decision on June 19, 2002.