Superintendent of Bankruptcy v. MacLeod et al., 2010 FCA 84

• Judge: Stratas, J.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: March 24, 2010
• Jurisdiction: Canada (Federal)
• Citations: 2010 FCA 84;(2010), 402 N.R. 341 (FCA)

Superintendent v. MacLeod (2010), 402 N.R. 341 (FCA)

MLB headnote and full text

Temp. Cite: [2010] N.R. TBEd. AP.004

Sylvie Laperrière, in her capacity as Senior Analyst - Professional Conduct - of the Office of the Superintendent of Bankruptcy (appellant) v. Allen W. MacLeod and D. & A. MacLeod Company Ltd. (respondents)

(A-66-10; 2010 FCA 84)

Indexed As: Superintendent of Bankruptcy v. MacLeod et al.

Federal Court of Appeal

Stratas, J.A.

March 24, 2010.

Summary:

The appellant, a senior analyst/professional conduct official in the Office of the Superintendent of Bankruptcy, moved for a stay or suspension of an administrative adjudicator's hearing while an appeal was pending in the Federal Court of Appeal. The respondents were bankruptcy trustees who had administered various estates.

The Federal Court of Appeal, per Stratas, J.A., dismissed the motion.

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes "irreparable harm" - The appellant was a senior analyst/professional conduct official in the Office of the Superintendent of Bankruptcy - The respondents were bankruptcy trustees who had administered various estates - They were subject to disciplinary proceedings - The delegate found that certain misconduct had not been established because due diligence had been established - The appellant appealed to the Federal Court - With the court's decision, the case became bifurcated - The court allowed the appeal respecting two categories of contraventions and sent the matter back to the delegate for determination of sanction - The court dismissed the appeal respecting three categories of contraventions - The appellant appealed this part of the decision to the Federal Court of Appeal - The appellant moved for a stay or suspension of the adjudicator's sanction hearing while the appeal was pending in the court - The Federal Court of Appeal, per Stratas, J.A., dismissed the motion - The court stated that "even if 'time, energy and money' would be wasted, the appellant has failed to particularize adequately the nature and amount of waste. Indeed, as best as can be determined from the affidavit offered in support of the stay - and the affidavit is unclear on this point - perhaps only a few days of work might be wasted. This smacks of mere administrative inconvenience and is too trifling to justify the unusual remedy of a stay against a public decision-maker who wants to exercise his jurisdiction. Mere administrative inconvenience, without more, does not qualify as irreparable harm ..." - See paragraph 20.

Practice - Topic 8954

Appeals - Stay of proceedings pending appeal - What constitutes "irreparable harm" - The appellant was a senior analyst/professional conduct official in the Office of the Superintendent of Bankruptcy - The respondents were bankruptcy trustees who had administered various estates - They were subject to disciplinary proceedings - The delegate found that certain misconduct had not been established because due diligence had been established - The appellant appealed to the Federal Court - With the court's decision, the case became bifurcated - The court allowed the appeal respecting two categories of contraventions and sent the matter back to the delegate for determination of sanction - The court dismissed the appeal respecting three categories of contraventions - The appellant appealed this part of the decision to the Federal Court of Appeal - The appellant moved for a stay or suspension of the adjudicator's sanction hearing while the appeal was pending in the court - The Federal Court of Appeal, per Stratas, J.A., dismissed the motion - The appellant had not established irreparable harm - The court noted that "the sort of bifurcation caused by the Federal Court's decision in this case often happens. Bifurcation and its unwelcome effects - greater inconvenience, increased complexity and mounting costs - are part of the normal vicissitudes of litigation. If the Court granted a stay on the basis of the evidentiary record in this motion, it would have to grant a stay in every case where bifurcation has happened. The appellant did not offer evidence that the bifurcation in this case caused abnormal, harsh consequences beyond the norm. Bifurcation, without more, is not a golden ticket to a stay." - See paragraph 21.

Practice - Topic 8958

Appeals - Stay of proceedings pending appeal - Balance of convenience and justice - The appellant was a senior analyst/professional conduct official in the Office of the Superintendent of Bankruptcy - The respondents were bankruptcy trustees who had administered various estates - They were subject to disciplinary proceedings - The delegate found that certain misconduct had not been established because due diligence had been established - The appellant appealed to the Federal Court - With the court's decision, the case became bifurcated - The court allowed the appeal respecting two categories of contraventions and sent the matter back to the delegate for determination of sanction - The court dismissed the appeal respecting three categories of contraventions - The appellant appealed this part of the decision to the Federal Court of Appeal - The appellant moved for a stay or suspension of the adjudicator's sanction hearing while the appeal was pending in the court - The Federal Court of Appeal, per Stratas, J.A., dismissed the motion - The court held, inter alia, that the balance of convenience was strongly against granting the relief - Depending on the outcome of the appeal, the sanction hearing might be the last hearing before the delegate and the end of what the respondents felt was an intolerable ordeal - The public interest in proceeding with sanction also weighed against the granting of a stay - See paragraphs 22 to 26.

Cases Noticed:

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, refd to. [para. 10].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 10].

Québec (Sous-ministre du Revenu) et autres v. 143471 Canada Inc. et autres, [1994] 2 S.C.R. 339; 167 N.R. 321; 61 Q.A.C. 81, refd to. [para. 10].

Harper v. Canada (Attorney General), [2000] 2 S.C.R. 764; 262 N.R. 201; 271 A.R. 201; 234 W.A.C. 201; 2000 SCC 57, refd to. [para. 10].

Powell (C.B.) Ltd. v. Canada Border Services Agency (President) et al. (2010), 400 N.R. 367; 2010 FCA 61, refd to. [para. 13].

Canada (Attorney General) et al. v. Information Commissioner (Can.) (2001), 268 N.R. 328; 2001 FCA 25, refd to. [para. 17].

Bathurst Machine Shop Ltd. v. Minister of National Revenue, [2006] 2 C.T.C. 276; 346 N.R. 154; 2006 FCA 59, refd to. [para. 18].

Falkiner et al. v. Director of Income Maintenance (Ont.) et al. (2002), 159 O.A.C. 135; 189 D.L.R.(4th) 377 (C.A.), refd to. [para. 20].

Counsel:

Bernard Letarte and Benoît de Champlain, for the appellant;

Julia J. Martin and J. Alden Christian, for the respondents.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;

Julia J. Martin, Ottawa, Ontario, and Doucet McBride LLP, Ottawa, Ontario, for the respondents.

This motion was dealt with in writing, without the appearance of parties, by Stratas, J.A., of the Federal Court of Appeal, who delivered the following decision on March 24, 2010.