Date: 19991213
Docket: T-1600-99
Ottawa, Ontario, December 13, 1999
BETWEEN:
FRIEDMAN & FRIEDMAN INC. and
HARRY BICK,
Plaintiffs,
- and -
MARC MAYRAND, in its [sic] capacity of
Superintendent of Bankruptcy and
MICHEL LEDUC, in its capacity of Senior
Advisor and Delegate to the Superintendent of Bankruptcy,
Defendants.
REASONS FOR ORDER and ORDER
[1] The company "Friedman & Friedman Inc." (hereinafter "the company") is a trustee in bankruptcy: Mr. Bick is a director of that company. The company was appointed trustee in the bankruptcy of Pourvoirie J.B. Scott (hereinafter "the bankrupt"), and Mr. Bick was charged with administering the assets of the bankrupt. Once the administration was complete the company filed an application for discharge, but Mr. Mayrand, the Superintendent of Bankruptcy, objected to this application. Despite that objection the application for discharge was granted. The Bankruptcy and Insolvency Act , R.S.C. 1985, c. B-3 (hereinafter "the Act"), states that discharge of the trustee relieves him of any responsibility "in relation to his conduct as trustee". Mr. Mayrand then brought other proceedings under s. 14 of the Act, which provides that the Superintendent has the right to discipline a trustee who "has been guilty of any improper management of an estate". These proceedings led to the issuing of a report by Mr. Leduc, a public servant to whom Mr. Mayrand delegated his disciplinary investigation powers under s. 14.02 (2) of the Act. The report contains recommendations of a disciplinary nature regarding the company and Mr. Bick. However, these recommendations were ineffective as they still have not been accepted by the Superintendent of Bankruptcy, Mr. Mayrand.
[2] Relying on their discharge granted by the Court and the immunity to which they alleged they were entitled, the company and Mr. Bick filed a notice of application for judicial review asking the Court to quash Mr. Leduc"s report and to grant a stay of any other disciplinary proceedings.
[3] Messrs. Mayrand and Leduc objected to this notice of an application for judicial review. They each filed a notice of motion asking that the notice of an application for judicial review be struck out on the ground that there was no decision or order of a federal board, commission or other tribunal that could be the subject of judicial review.
[4] The company and Mr. Bick filed a reply noting that their application included a writ of prohibition which by its very nature did not depend on the existence of a decision or order but, on the contrary, was designed to prevent the issuing of such a decision. Also, as they felt that s. 41(8.1) of the Act1 was not in effect at the time of the events giving rise to the case at bar, the company and Mr. Bick filed their own notice of motion asking the Court to strike certain paragraphs of Mr. Mayrand"s reply record in which he relied on s. 41(8.1).
[5] What is noteworthy in the case at bar is the fact that the Court is faced in a proceeding supposed to be a summary one with three notices of motion and a reply record. If the applications to strike are not allowed, the application for judicial review will be subject to two hearings, despite the fact that it would have been possible to dispose of it in a single hearing. Although the opportunity of quashing a claim which is apparently without foundation from the outset has something to recommend it, this saving of effort would seldom be realized when an application can be dealt with at a single hearing. This is why the Court of Appeal ruled as follows in David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588:
| Thus, the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself. This case well illustrates the waste of resources and time in adding on to what is supposed to be a summary judicial review proceeding the process of an interlocutory motion to strike. This motion to strike has involved a hearing before a trial judge and over one half day before the Court of Appeal, the latter involving the filing of several hundred pages of material, all to no avail. The originating notice of motion itself can and will be dealt with definitively on its merits at a hearing before a judge of the Trial Division now fixed for January 17, 1995. |
[6] It is true that in David Bull Laboratories, supra, the Court of Appeal admitted that there might be circumstances in which a case which was totally devoid of merit could be struck following a notice of motion. At the same time, as the Court of Appeal mentioned, "such cases must be very exceptional". The case at bar is not such a case as the application for a writ of prohibition forming part of the company and Mr. Bick"s application for judicial review did not depend on the existence of a decision or order as a condition precedent.
[7] Accordingly, for the reasons given by the Court of Appeal, the notices of motion by Mr. Mayrand and Mr. Leduc are dismissed, but subject to the latter"s right to make the same arguments alleged in those notices to the Court which considers the notice of application for judicial review on the merits. The notice of motion by the company and Mr. Bick is also dismissed for the same reasons and subject to the same rights.
[8] The question of costs is referred to the judge who hears the notice of an application for judicial review.
ORDER
For the foregoing reasons the notice of motion of Messrs. Mayrand and Leduc is dismissed, the notice of motion by the company and Mr. Bick is also dismissed and the question of costs referred to the judge who hears the notice of an application for judicial review.
| |
J.D. Denis Pelletier
Judge
|
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: Friedman & Friedman Inc. and Harry Bick v. Marc Mayrand and Others |
WRITTEN MOTION HEARD WITHOUT APPEARANCE BY PARTIES
| REASONS FOR ORDER BY: Pelletier J. |
DATED: December 13, 1999
WRITTEN SUBMISSIONS BY:
| Louis G. Brunet FOR THE PLAINTIFF |
| Sylvie Martin FOR THE DEFENDANT MARC MAYRAND |
| Robert Monette FOR THE DEFENDANT MICHEL LEDUC |
SOLICITORS OF RECORD:
| Gagnon, Proulx & Brunet FOR THE PLAINTIFF |
Montréal, Quebec
| Morris Rosenberg FOR THE DEFENDANT MARC MAYRAND |
Deputy Attorney General of Canada
Montréal, Quebec
| Deblois & Associés FOR THE DEFENDANT MICHEL LEDUC |
Québec, Quebec
__________________
0.
41(8.1) La libération d"un syndic le relève de toute responsabilité : Error! Main Document Only.Error! Main Document Only.Error! Main Document Only.Error! Main Document Only.Error! Main Document Only.Error! Main Document Only.Error! Main Document Only.Error! Main Document Only.Error! Main Document Only.) à l"égard de tout acte ou manquement de sa part dans l"administration des biens du failli;
Error! Main Document Only.) en ce qui concerne sa conduite à titre de syndic.
Toutefois, une libération peut être révoquée par le tribunal sur preuve qu"elle a été obtenue par fraude ou en supprimant ou cachant un fait important. |
41(8.1) The discharge of a trustee discharges him from all liability Error! Main Document Only.Error! Main Document Only.Error! Main Document Only.Error! Main Document Only.Error! Main Document Only.Error! Main Document Only.Error! Main Document Only.Error! Main Document Only.(Error! Main Document Only.) in respect of any act done or default made by him in the administration of the property of the bankrupt, and (Error! Main Document Only.) in relation to his conduct as trustee,
but any discharge may be revoked by the court on proof that it was obtained by fraud or by suppression or concealment of any material fact. |
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