Patrick Estate (Bankrupt), Re, (1999) 181 Sask.R. 165 (QB Reg.)

• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: February 04, 1999
• Jurisdiction: Saskatchewan
• Citations: (1999), 181 Sask.R. 165 (QB Reg.)

Patrick Estate (Bankrupt), Re (1999), 181 Sask.R. 165 (QB Reg.)

MLB headnote and full text

Temp. Cite: [1999] Sask.R. TBEd. FE.057

In The Matter Of the Bankruptcy of The Estate of John Allen Patrick (Bankruptcy No. 2082)

(Estate No. 020991)

Indexed As: Patrick Estate (Bankrupt), Re

Saskatchewan Court of Queen's Bench

In Bankruptcy

Herauf, Registrar in Bankruptcy

February 4, 1999.

Summary:

Patrick died. His widow, and sole executrix of the estate assigned the estate into bank­ruptcy. Thereafter, she unsuccessfully filed a claim for certain property that was in the trustee's possession. The widow appealed.

The Registrar of the Saskatchewan Court of Queen's Bench, In Bankruptcy, allowed the appeal in part.

Bankruptcy - Topic 488

Property of bankrupt - Exemptions or exclusions - Trust property - [See Resti­tution - Topic 123 ].

Bankruptcy - Topic 6885

Practice - Appeals - Jurisdiction - Patrick died - His widow, and sole executrix of the estate, assigned the estate into bankruptcy -Thereafter, she unsuccessfully filed a claim for certain property that was in the trustee's possession - The widow appealed - In allowing the appeal in part, the Regis­trar of the Saskatchewan Court of Queen's Bench, In Bankruptcy, noted that the ap­peal was commenced improperly, the wrong sections of the Bankruptcy and Insolvency Act were pleaded and the time for appealing had expired - Nonetheless, the court held that the Act was broad enough to allow it to cure the defects and extend the missed time periods - See para­graphs 5 to 15.

Bankruptcy - Topic 6885.1

Practice - Appeals - From trustee's deci­sion re provable claims - [See Bankruptcy - Topic 6885 ].

Bankruptcy - Topic 6889

Practice - Appeals - Time for - [See Bank­ruptcy - Topic 6885 ].

Restitution - Topic 123

Unjust enrichment - Remedies - Construc­tive trust - Patrick died - His widow, and sole executrix of the estate assigned the estate into bankruptcy - Thereafter, she unsuccessfully filed a claim for certain property that was in the trustee's posses­sion - The widow appealed asserting that her claim was based upon a resulting or constructive trust - Particulary, she was the primary wage earner for the family and paid for most of the family assets, includ­ing those in issue - The Registrar of the Saskatchewan Court of Queen's Bench, In Bankruptcy, held that for some of the contested property, a constructive trust was established - There was clearly enrichment to the trustee, a corresponding deprivation to the wife and absence of any juristic reason for the deprivation - The court determined accordingly which property the wife could claim - See paragraphs 1 to 67.

Trusts - Topic 1901

Resulting trusts - General principles - The Registrar of the Saskatchewan Court of Queen's Bench, In Bankruptcy, stated that the three elements necessary to establish a resulting trust were: "1) Property, either real or personal, must be passed from the grantor to the grantee; 2) The grantor must receive no consideration for passing the property to the grantee; 3) The grantor must not intend to dispose of his or her interest in the property; however, there is no need to prove certainty of intent" - See paragraph 47.

Trusts - Topic 2308

Constructive trusts - General principles - Circumstances when imposed - [See Resti­tution - Topic 123 ].

Cases Noticed:

Saker v. Canadian Credit Men's Trust Association (1931), 13 C.B.R. 54 (Alta. T.D.), refd to. [para. 12].

St. Pierre, Re (1963), 5 C.B.R.(N.S.) 61 (Que. S.C.), refd to. [para. 14].

Wineberg, Re (1969), 14 C.B.R.(N.S.) 182 (Ont. S.C.), refd to. [para. 15].

141530 Canada Inc. (Trustee) v. Concept Plus Multi Bar C.P.M.B. Inc. (1986), 77 C.B.R.(N.S.) 297 (Que. S.C.), refd to. [para. 33].

Gavex, A Resource Corp., Re (1989), 75 C.B.R.(N.S.) 178 (B.C.S.C.), refd to. [para. 36].

Wedlock Ltd., Re (1925), 5 C.B.R. 662 (P.E.I.S.C.), refd to. [para. 38].

Roberts Estate, Re (1998), 3 C.B.R.(4th) 318 (Ont. Gen. Div.), refd to. [para. 39].

Roberts Estate, Re (1996), 11 O.T.C. 320; 41 C.B.R.(3d) 185 (Gen. Div. Bktcy.), refd to. [para. 46].

Bitz (Bankrupt), Re (1992), 99 Sask.R. 136; 10 C.B.R.(3d) 236 (Q.B.), refd to. [para. 47].

Graff v. Bitz - see Bitz (Bankrupt), Re.

Becker v. Pettkus, [1980] 2 S.C.R. 834; 34 N.R. 384; 19 R.F.L.(2d) 165; 117 D.L.R.(3d) 257; 8 E.T.R. 143, refd to. [para. 54].

Peter v. Beblow, [1993] 1 S.C.R. 980; 150 N.R. 1; 23 B.C.A.C. 81; 39 W.A.C. 81; 101 D.L.R.(4th) 621; 77 B.C.L.R.(2d) 1; 48 E.T.R. 1; 44 R.F.L.(3d) 329; [1993] 3 W.W.R. 337, refd to. [para. 54].

Daly v. Daly, [1980] 6 W.W.R. 680; 4 Man.R.(2d) 63 (C.A.), refd to. [para. 55].

Semeniuk v. Semeniuk and Semeniuk Estate et al. (1986), 49 Sask.R. 188 (Q.B.), refd to. [para. 65].

Meredith v. Hubel (1995), 126 Sask.R. 245 (Q.B.), refd to. [para. 65].

Authors and Works Noticed:

Houlden, Lloyd W., and Morawetz, Carl H., Bankruptcy and Insolvency Law of Canada (3rd Ed.), p. 3-26 [para. 45].

Counsel:

Kevin C. Mellor, for the applicant, Marga­ret Patrick;

James P. Kroczynski, for the trustee, K.P.M.G. Inc.

This appeal was heard before Herauf, Registrar, of the Saskatchewan Court of Queen's Bench, In Bankruptcy, who de­livered the following judgment on February 4, 1999.