Maxer Ltd. (Bankrupt), Re, (2015) 313 Man.R.(2d) 73 (QB)

• Judge: Dewar, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: January 09, 2015
• Jurisdiction: Manitoba
• Citations: (2015), 313 Man.R.(2d) 73 (QB);2015 MBQB 5

Maxer Ltd. (Bankrupt), Re (2015), 313 Man.R.(2d) 73 (QB)

MLB headnote and full text

Temp. Cite: [2015] Man.R.(2d) TBEd. JA.032

Maxer (2006) Ltd. (applicant) v. Leigh C. Taylor and L.C. Taylor & Co. Ltd., Trustee of the Estate (respondents)

(BK 09-01-01385; 2015 MBQB 5)

Indexed As: Maxer Ltd. (Bankrupt), Re

Manitoba Court of Queen's Bench

Winnipeg Centre

Dewar, J.

January 9, 2015.

Summary:

Jardine was counsel for the trustee in bankruptcy as well as for the bankrupt's largest creditor. The applicant sought the removal of Jardine as counsel for the trustee.

The Manitoba Court of Queen's Bench dismissed the application.

Barristers and Solicitors - Topic 1601.1

Relationship with client - Conflict of interest - Delay in complaining of conflict - Jardine was counsel for the trustee in bankruptcy as well as for the bankrupt's largest creditor - The applicant sought the removal of Jardine as counsel for the trustee - The Manitoba Court of Queen's Bench dismissed the application - Having reviewed the authorities regarding the use by the trustee of a solicitor who was also employed by a major creditor, the court stated, "In my view, it would be prudent for a trustee in a case of this nature to refrain from utilizing the same lawyer that is being used by the only creditor, or the only major creditor. However, it is impossible to lay down a black and white rule, and I do not propose to do so. Suffice it to say that using the same lawyer as a major creditor can be perceived to interfere with the neutrality owed by the trustee to all interested parties, and I view it as preferable wherever possible for a trustee in such a situation to be separately represented." - Here, the application was dismissed as being made too late - For almost two years, "the Trustee and his counsel were led to believe that there was no objection to their conduct of the litigation" - If a party intended to complain about the trustee's choice of counsel where the complaint was rooted in the appearance of unfairness, there was an obligation to raise the complaint in a timely manner - The applicant here was deemed to have waived the complaint - See paragraphs 25 to 41.

Barristers and Solicitors - Topic 1601.2

Relationship with client - Conflict of interest - Waiver - [See Barristers and Solicitors - Topic 1601.1 ].

Barristers and Solicitors - Topic 1601.4

Relationship with client - Conflict of interest - Considerations - Passage of time - [See Barristers and Solicitors - Topic 1601.1 ].

Barristers and Solicitors - Topic 1603

Relationship with client - Conflict of interest - Acting for receiver or trustee - [See Barristers and Solicitors - Topic 1601.1 ].

Cases Noticed:

Maxer Ltd. (Bankrupt), Re (2011), 266 Man.R.(2d) 71; 2011 MBQB 127, affd. (2012), 284 Man.R.(2d) 93; 555 W.A.C. 93; 2012 MBCA 92, refd to. [para. 11].

McCoubrey, Re, [1924] 4 D.L.R. 1227; 1924 CarswellAlta 69 (Alta. S.C.), refd to. [para. 26].

Marquette (A.) & Fils Inc. v. Mercure, [1977] 1 S.C.R. 547; 10 N.R. 239, refd to. [para. 26].

Port Alice Specialty Cellulose Inc. (Bankrupt) v. ConocoPhillips Co. (2005), 212 B.C.A.C. 310; 350 W.A.C. 310; 254 D.L.R.(4th) 397; 2005 BCCA 299, refd to. [para. 26].

Reed, Re (1980), 28 O.R.(2d) 790; 1980 CarswellOnt 149 (C.A.), refd to. [para. 27].

Beetown Honey Products Inc. (Bankrupt), Re [2003] O.T.C. 866; 67 O.R.(3d) 511; 2003 CarswellOnt 3755 (Sup. Ct.), refd to. [para. 28].

NsC Corp. v. ABN Amro Bank Canada (1992), 116 N.S.R.(2d) 97; 320 A.P.R. 97 (T.D.), refd to. [para. 29].

Dugas (Bankrupt), Re (2003), 261 N.B.R.(2d) 315; 685 A.P.R. 315; 2003 NBQB 197, refd to. [para. 30].

Engels (Bankrupt), Re, [2002] O.T.C. 525; 60 O.R.(3d) 572 (Sup. Ct.), refd to. [para. 30].

Engels v. Richard Killen & Associates Ltd. - see Engels (Bankrupt), Re.

0810363 BC Ltd. (Bankrupt), Re, [2012] B.C.T.C. Uned. 671; 94 C.B.R.(5th) 39; 2012 BCSC 671, refd to. [para. 31].

Kaiser (Bankrupt), Re, [2011] O.T.C. Uned. 4877; 84 C.B.R.(5th) 29; 2011 ONSC 4877, refd to. [para. 32].

Barkman-Landmark Homes Inc. (Bankrupt), Re (2001), 154 Man.R.(2d) 251; 2001 MBQB 38, refd to. [para. 33].

Counsel:

J.J. Burnell and Adele D. Domenco, for the applicant;

Janet I. Jardine, for the respondents.

This application was heard by Dewar, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on January 9, 2015.