In re Collings, [1936] SCR 609

Supreme Court of Canada

In re Collings, [1936] S.C.R. 609

Date: 1936-10-31

In the Matter of the Bankruptcy of T.H. Collings

Ex Parte T.H. Collings

Ex Parte K. Murphy

1936: October 9, 31.

Rinfret J. in chambers.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Bankruptcy—Appeal—Application for special leave to appeal to Supreme Court of Canada—Time of notice—Jurisdiction to hear application—Bankruptcy rule 72.

The competency of the Supreme Court of Canada in bankruptcy proceedings is to be looked for exclusively in the Bankruptcy Act (R.S.C. 1927, c. 11) and the rules properly made under it; it is not controlled by the sections of the Supreme Court Act dealing with the Court’s ordinary jurisdiction.

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A trustee in bankruptcy applied to a Judge of this Court for leave to appeal from a decision of the Court of Appeal made on June 29, 1936. The court of original jurisdiction in bankruptcy, acting under s. 163(5) of the Bankruptcy Act, on September 8, 1936, extended the time (which otherwise would have expired on July 29) within which to apply for such leave, its order providing that notice of motion for leave be served on or before September 28, and be made returnable on or before October 12. The notice was served on September 26 and made returnable on October 9; so it was not served “at least 14 days before the hearing thereof” as prescribed by bankruptcy rule 72.

Held: The motion could not be heard. A Judge of this Court has no power to excuse a party from compliance with rule 72, nor to abridge the time of notice thereby prescribed. Assuming the court of original jurisdiction in bankruptcy had power to abridge the time of notice, its said order did not do so.

In re Hudson Fashion Shoppe Ltd., [1926] Can. S.C.R. 26; In re Gilbert, [1925] Can. S.C.R. 275; In re North Shore Trading Co., [1928] Can. S.C.R. 180, and Boily v. McNulty, [1927] Can. S.C.R. 275, cited.

The motion was dismissed; but with reservation of any right in the applicant to obtain from the court having jurisdiction to grant it a further extension of time to renew the application.

APPLICATIONS by the Trustee in Bankruptcy for special leave to appeal to this Court from the judgment of the Court of Appeal for Ontario[1] which allowed an appeal from the order of Mr. Justice McEvoy[2] dismissing applications for an order rescinding the receiving order made by the Registrar in Bankruptcy and annulling the adjudication in bankruptcy.

F.K. Ellis for the Trustee.

Lewis Duncan K.C. for T.H. Collings.

R.M. Willes Chitty for K. Murphy.

RINFRET J.—The applications for leave to appeal to the Supreme Court of Canada were made to me by the Trustee in these matters on the 9th day of October, 1936.

The appeals intended to be lodged, if leave therefor was granted, are from a decision of the Appeal Court pronounced on the 29th day of June, 1936, and application for leave to appeal therefrom ought therefore to have been made on or before the 29th day of July, 1936 (Rule 72 under the Bankruptcy Act); but the court of original jurisdiction in bankruptcy, acting under subs. 5 of s. 163 of the

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Bankruptcy Act, on the 8th day of September, 1936, extended the time within which the application might be made up to the 12th day of October, 1936. The order so made was

that the notice of motion for such special leave, if any, be served upon the parties entitled to notice on or before the 28th day of September, 1936, and that the said notice of motion for such special leave, if any, be made returnable before a Judge of the Supreme Court of Canada on or before the 12th day of October, 1936.

The notice of motion for leave to appeal now before me was served on the 26th day of September. As aforesaid, it was made returnable on the 9th of October. So that the notice was not “served on the other party at least fourteen days before the hearing thereof,” as prescribed by Bankruptcy Rule No. 72(1).

The objection was taken by opposing counsel for the respondents.

I am precluded by the rule from hearing the motion and from entertaining the application. (In re Hudson Fashion Shoppe Limited[3].)

Rule 72 is a statutory rule. Moreover, it is not a rule made under the provisions of the Supreme Court Act and from the compliance with which the Supreme Court of Canada or a Judge thereof may excuse a party under Rule 109 of this Court. The Rule is a Bankruptcy Rule made by the Governor in Council under the provisions of s. 161 of the Bankruptcy Act; and it is not inconsistent with the provisions of the Act. (In re Gilbert; Boivin v. Larue, Trudel & Piché[4].) It has been held further that a Judge of this Court had no power, under Supreme Court Rule 108, to enlarge or abridge the delay provided by Bankruptcy Rule 72. (In re Gilbert⁴; In re North Shore Trading Company[5].) One reason for this is that the competency of this Court, in bankruptcy matters, is to be looked for exclusively in the Bankruptcy Act and the Rules properly made under it; it is not controlled by the sections of the Supreme Court Act dealing with the Court’s ordinary jurisdiction (Boily v. McNulty)[6].

In the present instance, Rule 72 was clearly not followed. Under it, the notice must be served “at least” fourteen days before hearing. The use of the words “at least”

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means that “both the day of service or of giving notice and the day on which [the application was to be heard] shall be excluded from the computation.” (Bankruptcy Rule 170).

Assuming the court of original jurisdiction in bankruptcy had the power to abridge the prescribed delay, such delay was not abridged by the order extending the time for applying for leave. The order prescribed an extreme date within which the notice should be served and another date within which the motion should be made returnable. Between the 8th of September (the date of the order) and the 12th of October (the date on or before which the motion was ordered to be made returnable) ample time was provided for complying both with the order and with Rule 72.

In the particular instance, counsel for the applicant complained that the 12th day of October happened to fall on a non-juridical day (Thanksgiving day) and that the previous day, the 11th of October, was a Sunday. But, far from operating to the prejudice of the applicant, these events really gave him additional time within which to comply with the order and with the Rule, for in such case he could have made his motion returnable on the 13th day of September and his proceedings would necessarily have been “considered as done or taken in due time” (Bankruptcy Act, s. 184; Rule 172).

I must, therefore, dismiss the motions and the applications with costs; but, as I am not passing on the merits of the applications, I will reserve any right which the applicant may have to obtain from the court having jurisdiction to grant it a further extension of time to renew the applications for special leave to appeal herein made.

Applications dismissed with costs (with reservation as stated).

Solicitors for the Trustee (applicant): Ellis & Ellis.

Solicitor for T.H. Collings: Lewis Duncan.

Solicitors for K. Murphy: Joy & Chitty.

[Page 613]

In the Matter of the Bankruptcy of T.H. Collings

Ex Parte T.H. Collings

Ex Parte K. Murphy

(No. 2)

1936: December 16; 1937: January 4.

Rinfret J. in chambers.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Costs—Bankruptcy—Costs on dismissal of application of trustee in bankruptcy for special leave to appeal to Supreme Court of Canada—Settlement of minutes of judgment—Costs against trustee as trustee, not against him personally—Tariff applicable—Costs given to trustee in other proceedings in the bankruptcy not to be embraced in the order so as to allow for set-off.

Upon application for settlement of the minutes of the judgment delivered on application by the trustee in bankruptcy for special leave to appeal to this Court, and reported ante, p. 609:

Held (1) The trustee appeared (on said application for leave) in his capacity as trustee and the dismissal of his application with costs could affect him only as trustee and not personally; costs were payable by him out of the funds in his hands.

(2) Upon appeals to this Court in bankruptcy matters the tariff which applies is that provided for in the Rules (91 et seq.) of this Court, and contained in Form I set out in the schedule thereto; and the costs of said application for leave should be taxed according to that tariff, and not according to the tariff prevailing in the bankruptcy courts. The judge hearing said application was not empowered to adjudicate otherwise.

(3) Certain taxable costs given the trustee in other proceedings in the course of the bankruptcy should not be embraced in the order now in question so as to give right to a set-off.

Moreover, contentions to the effect that the costs should be adjudicated against the trustee personally, that they should be taxed according to the tariff prevailing in the bankruptcy courts, and request that a set-off be provided for as aforesaid, could not now be raised for the first time on settlement of the minutes—they were contrary to the intention of the said judgment, and were equivalent to asking amendment thereof; which there was no reason to grant. (Paper Machinery Ltd. v. J.O. Ross Engineering Corpn., [1934] Can. S.C.R. 186, referred to).

APPLICATION for settlement of the minutes of the judgment rendered by Rinfret J.[7] dismissing with costs applications by the Trustee in Bankruptcy for special leave to appeal to this Court. The questions had to do with costs of said applications and are sufficiently set out in the judgment now reported and are indicated in the above head-note.

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J.T. Wilson for T.H. Collings and K. Murphy.

D.K MacTavish for the Trustee.

RINFRET J.—Upon application for settlement of the minutes of the judgments rendered by me in these matters on the 31st day of October, 1936, I have come to the conclusion that:

(1) Edward Wilkins was before me in these matters in his capacity of Trustee. In fact, it was objected at the argument that he had no locus standi precisely because he was making the applications in his capacity of Trustee. The argument in respect of the absence of locus standi would have been without any foundation whatever if he had appeared in his personal capacity.

It follows that, on the applications on which I gave decisions, on the 31st day of October, 1936, the dismissal with costs could affect him only as Trustee and could not affect him personally.

(2) Although these are bankruptcy matters and the Supreme Court of Canada is given jurisdiction to hear appeals therein by the Bankruptcy Act (with the aid of the enabling section 44 of the Supreme Court Act), these appeals are nevertheless made to the same Supreme Court of Canada as is organized under the provisions of sections 3 et seq. of the Supreme Court Act and as is given an appellate jurisdiction within and throughout Canada under section 35 thereof.

Accordingly, upon appeals in bankruptcy matters, the tariff which applies is that provided for in Rules 91 et seq, of the Court and contained in Form I set out in the schedule to these rules. A Judge of this Court is not empowered to adjudicate otherwise.

(3) I may say, moreover, that the points now raised by counsel on behalf of the respondents Katherine Murphy and Thomas H. Collings (to the effect that the costs should be adjudicated against the Trustee personally and that they should be taxed according to the tariff prevailing in the bankruptcy courts) were not even mentioned in the course of the argument made before me on the applications for special leave to appeal. I consider that they cannot be raised at this stage, where the only question to be decided upon is the settlement of the minutes of the judgments I

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have delivered on the 31st of October, 1936. When delivering those judgments, I did not intend that the costs should be adjudicated against Mr. Edward Wilkins personally, nor that they should be taxed by the Registrar of the Bankruptcy Court under the tariff prevailing in that court.

To ask me now to settle the minutes so as to give such a meaning to my judgments is equivalent to a demand that I should amend my judgments; and I can see no reason for doing so (Paper Machinery Ltd. et al. v. J.O. Ross Engineering Corpn. et al.[8]).

I, therefore, order that the judgments be settled so that the costs be payable by the Trustee out of the funds in his hands; and I shall fix the fees upon his applications, if and when counsel will come before me for that purpose.

As for the further request that certain taxable costs given the Trustee against the debtor Collings, which remain unpaid, should be embraced in the order, so as to entitle Collings to a set-off, it should not be entertained:

(a) because the matter was not submitted to me in the course of the argument on the application and, therefore, the same reasons apply as given above to refuse to modify my judgment in other respects;

(b) I do not think costs incurred upon other matters and other proceedings in the course of the bankruptcy should be set off against the costs on the present applications.

Solicitor for T.H. Collings: Lewis Duncan.

Solicitors for K. Murphy: Joy & Chitty.

Solicitors for the Trustee: Ellis & Ellis.