This paper aims to present a brief summary of significant legal decisions over the past year, as they relate to and impact Ontario consumer bankruptcy and insolvency practitioners. It is by no means necessarily comprehensive or exhaustive.
Effect of an Order of Discharge on driver’s licenses and outstanding penalties
The case-law on the issue of a suspended or non-renewed driver’s license and unpaid penalties following a bankrupt’s discharge from bankruptcy, has remained a contentious topic for some time. There was a line of cases which held that provincial licensing authority remained valid after a bankrupt’s discharge from bankruptcy; as such, a province, as part of its licensing authority, could deny a reinstatement of a bankrupt’s driver’s license where there remained an unpaid judgment arising out of a motor vehicle accident.1 In Ontario, there are two recent decisions of significance. The first is Ontario (Minister of Finance) v. Clarke,2 where the Ontario Superior Court of Justice dismissed an appeal from a Master’s decision holding that the denial of a driver’s license to a bankrupt with an un-fulfilled judgment debt incurred as the result of a motor vehicle accident, is considered to be ‘debt collection’ and therefore in conflict with the BIA. In Clarke, the subject judgment arose pursuant to the Ontario Motor Vehicle Accident Claims Act, R.S.O. 1990, c. M.41, where an accident victim obtained judgment against an uninsured motorist (the proposal debtor); payment was obtained from the Motor Vehicle Accident Claims Fund (“MVACF”) under its compensation programme, which was then assigned the judgment and sought to collect from the uninsured debtor. The presiding Judge considered that the effect of the Supreme Court of Canada decision in AbitibiBowater3 and also relevant American caselaw (Perez v. Campbell, 402 U.S. 637 (1971)) were to confirm that where a provable claim from a regulatory body can be reduced to a monetary claim, it must be dealt with through the bankruptcy process. The contrary, would amount to creating a ‘carve-out’ for provincial regulatory or licensing schemes to permit debt enforcement after discharge, and would alter the scheme of distribution and re-order priorities.
The second significant decision is the Ontario Court of Appeal decision in Re Moore,4 which allowed an appeal from the Ontario Superior Court of Justice’s determination that the bankrupt, who had accumulated an ETR debt of over $88,000, could continue to be subject to the toll debt as it affected the bankrupt’s driver’s license. Although the bankrupt had not appealed the Superior Court decision, the Superintendent of Bankruptcy (“OSB”) intervened and appealed the decision, arguing that the doctrine of federal paramountcy renders s. 22(4) of the Highway 407 Act, 1998, R.S.O. c. 28, (the “407 Act) inoperative, in that it conflicts with s. 178(2) of the BIA and secondly, frustrates the purposes of the bankruptcy and insolvency system. The Court of Appeal, in applying the doctrine of paramountcy, determined that there was no operational conflict between the 407 Act and the BIA. In applying the constitutional test,5 the ETR could comply with both statutes by declining to pursue its remedies under the 407 Act; as for the bankrupt, the bankrupt had freedom of choice in respect of the 407 Act and was not required to obtain a vehicle permit, and could also choose whether to pay the toll debt or not. Notwithstanding, the Ontario Court of Appeal determined that operation of the 407 Act does conflict with the purpose of the BIA, namely the ‘fresh start principle’ and the unequal treatment of unsecured creditors. In respect of the ‘fresh start principle’, the Court of Appeal held that permitting a debtor a chance for a new start unencumbered by past indebtedness is an underlying principle of the BIA. The BIA also contains certain exceptions to the principle, which are prescribed by s. 178(1), and which include debts under certain specified provincial programmes, of which toll debt owing to ETR was not one. The Court of Appeal further held that the 407 Act frustrates the purpose of the BIA by creating a new class of debt which survives bankruptcy and frustrates the principle of treating all unsecured creditors equitably. It should be noted that the Court of Appeal did however, distinguish certain cases where there was professional misconduct or a disciplinary objective of the underlying provincial regulatory authority, where the power to suspend was founded not on a finding of non-payment of a debt, but rather on a finding of professional misconduct or in respect of the promotion of safe and responsible driving.6 In fact, the Court of Appeal specifically stated that the issue of public safety was not at stake on the appeal.
A further provincial appellate decision on this topic was also recently released. In Moloney v. Alberta (Administrator, Motor Vehicle Accident Claims Act), 2014 ABCA 68 (Alta.C.A.), the Alberta Court of Appeal upheld the lower Court’s decision that reliance upon s. 102 of the Alberta Safety Traffic Act to enforce an unsatisfied motor vehicle judgment obtained against an uninsured, at-fault motorist who had been discharged from bankruptcy, was in operational conflict with the BIA.
It is the presenters’ understanding that leave has been sought to appeal to the Supreme Court of Canada for both Re Moore, and Moloney, which leave applications remain pending, respectively.
Section 68, BIA – Surplus Income and Enforcement of Conditional Orders
A not uncommon situation faced by Trustees is the failure of a bankrupt to satisfy a conditional order requiring the payment of surplus income, and the Trustee’s ability to enforce such. In Re Burke,7 the Ontario Superior Court of Justice granted an appeal of the Master’s decision denying an order pursuant to s. 68(10) of the BIA that the bankrupt be required to pay the Trustee the amount of surplus income set forth in a conditional order, and denying an order pursuant to s. 68(13) of the BIA that the bankrupt’s employer pay such amount to the Trustee. The presiding Commercial List Judge determined that there is no reason that a conditional order under made s. 172 of the BIA cannot operate also as an order under s. 68 if it specifically addresses the payment of surplus income. Given the existence of a bankrupt, section 68 then remains “engaged until at least, the terms of a conditional discharge order are satisfied”. The Judge further determined that the remedial remedy prescribed under s. 68(13) is also available to the Trustee. The Court held that the Master’s determination that the Trustee’s remedy lay under s. 176 of the BIA appears to have been based on the absence of specific statutory language together with the view that s. 68 as a policy matter, is aimed at the early determination and payment of income so as not to delay a bankrupt’s discharge. Instead, the Court held that there is no conflict in the language of sections 68 and 172 of the BIA that limits a Trustee’s remedy to s. 176 of the BIA; also, the Trustee’s motion should not have been considered to be a variation under s. 68(12). Lastly, the Court determined that s. 176 is a very indirect means of achieving payment of surplus income; s. 68 furthers the policy of the BIA in circumstances where a bankrupt has chosen to ignore a surplus income obligation contemplated by a conditional order; otherwise, pre-discharge surplus income orders could be collected, but surplus income orders made in the context of discharge orders would be unenforceable, thereby “rewarding bankrupts who ignore the s. 68 regime to the point where surplus income issues remain outstanding at their discharge hearings”. The Court therefore determined that the conditional discharge order constituted an order under s. 68(10)(c); to the extent that it did not, there was sufficient evidence in the circumstances of the case to fix the amount of surplus income under that section to be paid by the bankrupt.
Limitations Act, 2002, R.S.O. 2002, c. 24
The Ontario Court of Appeal rendered a significant decision in Re Dilollo.9 At issue was whether the stay of a bankruptcy Order under appeal suspended the limitation period applicable to a motion by a Trustee to set aside a preferential payment under s. 95 of the BIA. The motions judge had found that the limitation period was not suspended by the stay and therefore dismissed the preference motion as time-barred. In this case, a creditor corporation had obtained a default judgment exceeding $22M against the bankrupt, an individual. A bankruptcy application had been brought in 2006 against the bankrupt by the creditor. A bankruptcy order was granted in January, 2010 following a settlement between the parties which involved a $1.185M payment by the bankrupt to the creditor, but which terms were not fully completed. An appeal to the bankruptcy order was filed but was dismissed in September, 2010. In August, 2012, the Trustee brought a motion for a declaration that the $1.185M payment constituted a preference. The motions judge determined that in considering s. 20 of the Limitations Act, since there was no limitation period prescribed under s. 195 of the BIA which also did not purport to suspend or extend a limitation period in the BIA, the ordinary 2 year limitation period applied. The Trustee’s motion was therefore determined to be time-barred given the Trustee’s knowledge of the payment more than 2 years prior to the commencement of its motion.
On appeal, the Ontario Court of Appeal held that while it did not agree with the motion’s judge’s interpretation of s. 20 of the Limitations Act, it determined that s. 195 of the BIA does not have the effect of suspending the operation of the limitation period in the Limitations Act. The Court of Appeal further dismissed the Trustee’s argument that there is a line of cases providing that the stay or creditors’ claims under s. 69 of the BIA has the effect of suspending the limitation period, holding that s. 69 does not extend, suspend, or vary a limitation period, but rather takes away creditors’ civil remedies by requiring the submission of claims through the bankruptcy process. Lastly, the Court of Appeal dismissed the Trustee’s argument that an appeal of the very order under which the Trustee derives authority would put a trustee and creditors at risk because a limitation period could slip away before a trustee had opportunity to fully investigate or take action in respect of a potential claim. Here, the Court of Appeal upheld the motion judge’s determination that it was open to the Trustee to apply to lift the stay if it interfered with its ability to commence the preference motion; it was also determined the Trustee had ample time to commence the preference motion.10
Section 135(2) BIA - Disallowance of Claims by Trustee
The time limitations for appealing a notice of disallowance issued by a Trustee in respect of a proof of claim are strictly prescribed under the BIA. Sections 135(3) and (4) provide that a disallowance is final and conclusive unless a creditor appeals from the Trustee’s decision within a thirty (30) day period after the service of notice, or within such further time as the Court on application within that period allows. The Ontario Superior Court of Justice’s decision in Re Proposal of Thomas Bell11 brings these time periods into sharp relief. Here, the Commercial List Judge allowed an appeal from the Registrar’s decision declaring that a creditor’s proofs of claim were filed within the time prescribed by the BIA. In summary, a creditor had filed proofs of claim with the Proposal Trustee, advising of a specific address for service, being a law firm. The Trustee disallowed the claims and sent notices of disallowance by registered mail to the corporation’s registered office address. Notwithstanding, the envelopes including the notices were acknowledged as being received by the creditor on April 17, 2012. A letter and Notice of Motion appealing the disallowances dated May 18, 2012 was sent by the creditor’s lawyer to the Trustee, taking the position that service is effective five (5) days after the date of mailing under the Rules of Civil Procedure and was therefore within time. The Registrar concluded that regardless of actual date of receipt, the date of mailing plus 5 days is the date of ‘deemed’ service; therefore effective service was considered to be April 20, 2012 (being 5 business days from the postmark date of April 13, plus 2 days for Saturday and Sunday). The Commercial List Judge determined that it is a question of fact as to when a notice of disallowance is served on a creditor and that the jurisprudence has held that the ‘actual’ date of service is treated as the date of service and therefore no recourse needed to be made to deemed or effective service rules under the Rules of Civil Procedure.12 Therefore the 30 day appeal period began to run on the date of actual receipt of notice on April 17. The Court acknowledged that while there may have been an effort to avoid a perceived ‘harsh result’, the statutory time limitations are strict, as confirmed in the case-law, and s. 135(4) cannot be overridden by s. 187(11) (which confers a general discretion on the Court to modify any time limit under the Act) of the BIA.13 The presenters understand this decision is under appeal to the Ontario Court of Appeal.
Discharge Hearings – Solicitor-Client Privilege
A decision of the Ontario Superior Court of Justice reviewed whether information in the possession of a bankrupt’s former solicitor was admissible for the purposes of a contested bankruptcy discharge hearing. In Re Katz,14 during the course of evidence-in-chief, the bankrupt was asked to explain certain entries on several pre-bankruptcy net worth statements indicating significant annual income from a “family trust”. The bankrupt testified that he had made a mistake in describing a family trust as opposed to the funds representing an allowance from his mother. On his Statement of Affairs and under a s. 161 examination, the bankrupt did not disclose the existence of any beneficial interest in a family trust or income received from a trust. On cross-examination it was acknowledged that a year prior to his bankruptcy the bankrupt had seen a matrimonial lawyer - the bankrupt was asked whether he discussed his property with the lawyer; the bankrupt testified that he did not remember the meeting, but indicated his sister was present during the meeting. The bankrupt’s counsel objected to the posing of any questions as to what was discussed at the meeting based on solicitor-client privilege. The presiding Commercial List Judge held a voir dire to determine such. The Judge relied upon the Ontario Court of Appeal decision in Clarkson Co. v. Chilcott,15 referencing it as a decision which correctly balanced the importance of solicitor-client privilege against creditor rights. There, it was held that the bankrupt’s solicitor “. . . can be compelled to disclose all information regarding the bankrupt’s affairs, transactions and the whereabouts of his property, etc. which do not require the disclosure of communications made . . . for the purpose of giving legal advice”. It was therefore determined that the solicitor who acted for the bankrupt prior to bankruptcy, was compelled to answer questions and disclose information about the bankrupt’s property, including what assets the bankrupt owned or possessed an interest in, provided that in so doing the solicitor did not reveal communications made for the purpose of giving ‘legal advice’. The Judge also referenced s. 158 of the BIA as imposing a statutory duty upon the bankrupt to make discovery of and deliver all property to the Trustee, the failure of which may constitute a bankruptcy offence, and to permit a solicitor to refuse to answer questions as to the existence and location of a bankrupt’s property would potentially assist the bankrupt in committing an offence. It was further commented in obiter that the presence of unnecessary third parties in meetings with a lawyer may serve to vitiate solicitor-client privilege by leading to a presumption that the communication was not intended to be made in confidence.
Setting Aside the Automatic Discharge of a Bankrupt
In Pricewaterhouse Coopers Inc. v. Osztrovics,16 the Bankruptcy Court set aside the automatic discharge of a second time bankrupt, where the Trustee, through inadvertence, failed to oppose the discharge. In this case, the Trustee sought to set aside the automatic discharge of the bankrupt and extend the time required to issue prescribed notice to creditors of the bankrupt’s impending discharge; the motion was opposed by the bankrupt’s counsel on the basis that the bankrupt was eligible for an automatic discharge within 24 months unless an opposition had been filed or the bankrupt had been required to pay surplus income under s. 68 of the BIA - since no determination had been made, and there was no opposition within the time prescribed, the bankrupt was entitled to an automatic discharge. The Trustee reported it had been engaged in an on-going struggle with the bankrupt to obtain necessary information for the proper administration of the estate. Notwithstanding the bankrupt’s position that the Trustee was influenced by mala fides of the bankrupt’s creditors concerning his business activities, the Registrar determined that the bankrupt had not done his utmost to assist in the realization of his property. The Registrar also determined that the Trustee’s difficulties in calculating surplus income obligations were due to the bankrupt’s failure to meet disclosure obligations; if there was any surplus income determined, then it would have triggered a 36 month payment period. The Registrar relied upon the decision in Re Baker,17 where the then presiding Registrar had held on a similar facts, that he lacked jurisdiction in such a situation. On appeal, the decision was reversed, finding that the Court did have jurisdiction and based on reliance upon s. 187(9) of the BIA and characterization of the failure of the Trustee to give notice as an ‘irregularity’, and also the substantial injustice which would be caused if the bankrupt were able to slip through an apparent crack and deprive interested persons with an opportunity to participate in a discharge hearing. The Registrar relied upon this rationale, and further noted that it should be tempered by the analysis set forth in Re Cameron,18 where the Court refused to set aside a discharge in the absence of some admissible evidence to conclude that there is some likelihood of the discharge hearing leading to an “appreciably different” result than an absolute discharge. As a result, it was determined that had notice been sent out, creditors would have opposed the discharge.
The past year has witnessed a number of significant decisions impacting consumer bankruptcy and insolvency practitioners as described herein. While a number of these decisions remain under appeal, practitioners are encouraged to keep in mind the practical ramifications which these decisions may yield.