Martin v. Martin et al., (2003) 270 N.B.R.(2d) 91 (TD)

• Judge: Riordon, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: May 14, 2003
• Jurisdiction: New Brunswick
• Citations: (2003), 270 N.B.R.(2d) 91 (TD);2003 NBQB 464

Martin v. Martin (2003), 270 N.B.R.(2d) 91 (TD);

    270 R.N.-B.(2e) 91; 710 A.P.R. 91

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[French language version follows English language version]

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

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Temp. Cite: [2004] N.B.R.(2d) TBEd. JA.005

Lucien Martin (plaintiff) v. Ludger Martin, Vernon Martin & Donat Martin (defendants)

(N/C/132/88; N/C/130/84; 43/95/CA; 2003 NBQB 464)

Indexed As: Martin v. Martin et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Miramichi

Riordon, J.

December 31, 2003.

Summary:

The plaintiff was assaulted by Zoel Martin. The plaintiff lost an eye and sued Zoel Martin for damages. Zoel's brothers, Ludger, Vernon and Donat Martin were included as defendants on the ground that they acted in a conspiracy and in concert to intentionally assault and cause the plaintiff harm.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 159 N.B.R.(2d) 81; 409 A.P.R. 81, allowed the claim against Zoel Martin only and assessed damages accordingly. The plaintiff appealed. At issue was whether the trial judge erred in failing to find that Vernon, Ludger and Donat Martin were acting in concert as joint tortfeasors.

The New Brunswick Court of Appeal, in a decision reported at 176 N.B.R.(2d) 178; 447 A.P.R. 178, allowed the appeal, holding that Vernon, Ludger and Donat Martin were joint tortfeasors and were jointly and severally liable for the plaintiff's losses assessed at trial. All the defendants filed assignments in bankruptcy and were discharged. The plaintiff sought a declaration that the brothers were not released from liability respecting his judgment against them. Section 178(1)(a.1)(i) of the Bankruptcy and Insolvency Act provided that a discharge did not release the bankrupt from an award of damages respecting bodily harm intentionally inflicted. The plaintiff also sought an order that one of the brothers be ordered to appear for an examination after judgment under the Arrest and Examinations Act.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the motions.

Bankruptcy - Topic 8991

Discharge of debtor - Liabilities not released by discharge - Debts arising out of misconduct (incl. causing bodily harm) - The plaintiff was assaulted by Zoel Martin - The plaintiff lost an eye - He obtained a judgment against Zoel Martin for damages for his personal injuries - Zoel's three brothers were also found liable on the basis that they had acted in concert with Zoel for a common end and were therefore joint tortfeasors - All the defendants filed assignments in bankruptcy and were discharged - The plaintiff sought a declaration that the three brothers were not released from liability respecting his judgment against them - Section 178(1)(a.1)(i) of the Bankruptcy and Insolvency Act provided that a discharge did not release the bankrupt from an award of damages respecting bodily harm intentionally inflicted - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the motion - The award of damages against the three brothers did not arise from bodily harm intentionally inflicted by the three brothers - The bodily harm was intentionally inflicted by Zoel.

Cases Noticed:

Jerrard v. Peacock (1985), 61 A.R. 161; 37 Alta. L.R.(2d) 197 (Q.B. Master), refd to. [para. 18].

Lees (Bankrupt), Re, [2002] B.C.T.C. 570 (S.C.), refd to. [para. 18].

Simone v. Daley (1999), 118 O.A.C. 54; 8 C.B.R.(4th) 143 (C.A.), refd to. [para. 18].

Marshall, Re (2001), 2000 CarswellOnt 4933 (Sup. Ct.), refd to. [para. 18].

Kawaauhau v. Geiger (1998), 523 U.S. 57 (S.C.), refd to. [para. 20].

Statutes Noticed:

Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, sect. 178(1)(a.1)(i) [para. 12].

Counsel:

Michael Noel, for the plaintiff;

George Martin, for the defendants.

These motions were heard on May 14, 2003, before Riordon, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Miramichi, who delivered the following decision on December 31, 2003.