Simonelli (Bankrupt), Re, (2003) 320 A.R. 330 (CA)

• Judge: Wittmann, J.A.
• Court: Court of Appeal (Alberta)
• Case Date: Tuesday January 21, 2003
• Citations: (2003), 320 A.R. 330 (CA);2003 ABCA 47

Simonelli (Bankrupt), Re (2003), 320 A.R. 330 (CA);

    288 W.A.C. 330

MLB headnote and full text

Temp. Cite: [2003] A.R. TBEd. MR.023

In The Matter Of The Bankruptcy of Giulio Simonelli

Giulio Simonelli (applicant) v. Paul Mackin and 059832 NB Ltd. (respondents/petitioning creditors)

(0201-0329AC; 2003 ABCA 47)

Indexed As: Simonelli (Bankrupt), Re

Alberta Court of Appeal

Wittmann, J.A.

February 12, 2003.

Summary:

The respondent creditors brought a petition that Simonelli be adjudged bankrupt. Simonelli moved to strike out the petition. A bankruptcy judge in chambers dimissed the motion and made a preliminary finding that Simonelli had committed an act of bankruptcy, despite counsel for Simonelli's objection that he was not prepared to address the issue of the bankruptcy itself. He then ordered Simonelli to file an affidavit in support of his Notice Disputing the Petition producing evidence to prove that he was able to pay his debts. If Simonelli failed to do so, the chambers judge ordered that the receiving order sought by creditors would issue automatically. Simonelli sought a declaration that an appeal existed as of right (Bankruptcy and Insolvency Act, ss. 193(a) and (c)). Alternatively, he sought leave to appeal the decision (s. 193(e)).

The Alberta Court of Appeal, per Wittmann, J.A., held that an appeal did not exist as of right. However, the court granted Simonelli leave to appeal the decision.

Bankruptcy - Topic 6882

Practice - Appeals - When available - The respondent creditors brought a petition that Simonelli be adjudged bankrupt - Simonelli moved to strike out the petition -A bankruptcy judge in chambers dimissed the motion and made a preliminary finding that Simonelli had committed an act of bankruptcy and ordered Simonelli to file an affidavit in support of his Notice Disputing the Petition producing evidence to prove that he was able to pay his alleged debts of $317,185 - Otherwise, a receiving order would issue automatically - Simonelli sought a declaration that an appeal existed as of right (Bankruptcy and Insolvency Act, ss. 193(a) and (c)) - The Alberta Court of Appeal, per Wittmann, J.A., held that an appeal did not exist as of right - The appeal did not involve future rights (s. 193(a)) - The loss resulting from refusing the application to strike was not an award exceeding $10,000 (s. 193(c)) and was procedural in nature - See paragraphs 8 to 27.

Bankruptcy - Topic 6888

Practice - Appeals - Leave to appeal - The respondent creditors brought a petition that Simonelli be adjudged bankrupt - Simonelli moved to strike out the petition -A bankruptcy judge in chambers dimissed the motion and made a preliminary finding that Simonelli had committed an act of bankruptcy, despite counsel for Simonelli's objection that he was not prepared to address the issue of the bankruptcy itself - Simonelli was also ordered to file an affidavit in support of his Notice Disputing the Petition producing evidence to prove that he was able to pay his alleged debts of $317,185 - Otherwise, a receiving order would issue automatically - The Alberta Court of Appeal, per Wittmann, J.A., granted Simonelli leave to appeal the decision - The point of appeal was significant to bankruptcy practice and to the action itself - The appeal was not frivolous and would not unduly hinder the progress of the action - Further, the decision may have been contrary to law and resulted in substantial prejudice to Simonelli - See paragraphs 28 to 36.

Cases Noticed:

Moody v. Ashton (1997), 158 Sask.R. 78; 153 W.A.C. 78 (C.A.), refd to. [para. 5].

Alternative Fuel Systmes Inc. v. Edo (Canada) Ltd. - see Edo (Canada) Ltd. (Bankrupt), Re.

Edo (Canada) Ltd. (Bankrupt), Re (1997), 206 A.R. 295; 156 W.A.C. 295 (C.A.), refd to. [para. 9].

West Edmonton Mall Property Inc. v. Duncan & Craig - see Devcor Investment Corp. (Bankrupt), Re.

Devcor Investment Corp. (Bankrupt), Re (2001), 277 A.R. 93; 242 W.A.C. 93 (C.A.), leave to appeal refused [2001] S.C.C.A. No. 485, refd to. [para. 9].

TFP Investments Inc. (Bankrupt) v. Singhal et al. (1991), 44 O.A.C. 234; 3 C.B.R.(3d) 225 (C.A.), refd to. [para. 9].

Ng v. Ng (1995), 54 B.C.A.C. 307; 88 W.A.C. 307; 34 C.B.R.(3d) 107 (C.A.), refd to. [para. 13].

Fallis v. United Fuel Investments Ltd. (1962), 4 C.B.R.(N.S.) 20 (S.C.C.), refd to. [para. 13].

McNeill v. Roe, Hoops & Wong - see McNeill (Bankrupt), Re.

McNeill (Bankrupt), Re (1996), 71 B.C.A.C. 213; 117 W.A.C. 213; 39 C.B.R.(3d) 147 (C.A.), refd to. [para. 16].

Elias v. Hutchison - see Catalina Exploration & Development Ltd., Re; Elias and Catalina Exploration & Development Ltd. v. Hutchison.

Catalina Exploration & Development Ltd., Re; Elias and Catalina Exploration & Development Ltd. v. Hutchison (1981), 27 A.R. 1; 37 C.B.R.(N.S.) 149 (C.A.), refd to. [para. 19].

Gatineau Power Co. v. Cross, [1929] S.C.R. 35, refd to. [para. 19].

Dominion Foundry Co. and Continental Forwarding Ltd. et al. v. Canadian Credit Men's Association Ltd. (1965), 52 D.L.R.(2d) 79 (Man. C.A.), refd to. [para. 26].

Coast Shingle Mill Co., Re (1926), 7 C.B.R. 553 (B.C.C.A.), refd to. [para. 26].

Odishaw v. Dykun - see Dykun (Bankrupt), Re.

Dykun (Bankrupt), Re (1998), 219 A.R. 145; 179 W.A.C. 145 (C.A.), refd to. [para. 28].

Hicks v. Kennedy (1957), 6 D.L.R.(2d) 567 (Alta. C.A.), refd to. [para. 33].

Devlin v. Devlin (1994), 165 A.R. 43; 89 W.A.C. 43 (C.A.), refd to. [para. 33].

Moody et al. v. Ashton (1997), 159 Sask.R. 286 (Q.B.), revd. (1997), 158 Sask.R. 318; 153 W.A.C. 318 (C.A.), refd to. [para. 34].

Authors and Works Noticed:

Stevenson, W.A., and Côté, J.E., Civil Procedure Guide (1996), p. 1358 [para. 33].

Counsel:

D.W. Mann, for the applicant;

S.T. FitzGerald, for the respondents/petitioning creditors.

This application was heard in Chambers on January 21, 2003, by Wittmann, J.A., of the Alberta Court of Appeal, who filed the following memorandum at Calgary, Alberta, on February 12, 2003.