Supreme Court of Canada
New Regina Trading Co. Ltd. v. Canadian Credit Men's
Trust Assn. Ltd., [1933] S.C.R. 453
Date: 1933-05-19.
The New Regina
Trading Company Limited (Plaintiff) Appellant;
and
The Canadian Credit
Men’s Trust Association, Limited, the Trustee of the Property of Regina Trading
Company Limited, Authorized Assignor, and The Canadian Credit Men’s Trust
Association, Limited (Defendants) Respondents.
1933: May 15; 1933: May 19.
Present: Duff, C.J. and Rinfret, Lamont,
Smith and Cannon JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR
SASKATCHEWAN
Appeal—Jurisdiction—Bankruptcy—Leave, under
Bankruptcy Act (R.S.C., 1927, c. 11), s. 24, to commence action in King’s Bench
Court, Sask.—Appeal from Court of Appeal to Supreme Court of Canada, without
special leave obtained under Bankruptcy Act, s. 174.
The plaintiff’s tenant made an assignment
under the Bankruptcy Act, R.S.C., 1927, c. 11, and defendant was
appointed trustee. Plaintiff claimed the amount of three months’ rent ($5,250)
under s. 126 of said Act and ss. 41 to 48 of the Landlord and Tenant Act, R.S.S.,
1930,
[Page 454]
c. 199, and obtained leave, under s. 24 of
the Bankruptcy Act, to commence an action in the King’s Bench Court,
Sask. Plaintiff recovered judgment at trial, which was reversed by the Court of
Appeal, which dismissed its action. Plaintiff appealed to the Supreme Court of
Canada. Defendant moved to quash the appeal for want of jurisdiction, on the
ground that the judgment appealed from was in a proceeding under the Bankruptcy
Act and no special leave to appeal had been obtained under s. 174 thereof.
Held: The
motion to quash should be dismissed; said s. 174 had no application, the action
not falling within the description therein, “proceedings under this Act.”
MOTION to quash the appeal for want of
jurisdiction.
The appeal was by the plaintiff from the
judgment of the Court of Appeal for Saskatchewan.
The plaintiff’s tenant made an assignment
under the Bankruptcy Act, R.S.C., 1927, c. 11, and the defendant was
appointed trustee. Leave was given by Macdonald J., in Chambers, under the
provisions of s. 24 of the Bankruptcy Act, to commence action against
the defendant. The plaintiff claimed the sum of $5,250, being the amount
equivalent to three months’ rent of the premises, and interest thereon, the
claim being made under the provisions of s. 126 of the Bankruptcy Act and
ss. 41 to 48, inclusive, of the Landlord and Tenant Act, R.S.S., 1930,
c. 199. There was also an alternative claim for the said sum against the
defendant personally, because of its failure to give effect to the alleged
preferential claim of the plaintiff upon the assets of the trust estate, and a
claim (not in issue in the present appeal) for damages alleged to have been
suffered by reason of wrongful acts of defendant in subletting the premises.
The trial judge, Taylor J., awarded the plaintiff the sum of $5,250
for three months’ rent, out of the tenant’s assets, in the hands of the
defendant, in priority to the claims of all other creditors. He dismissed the
plaintiff’s other claims in the action. The defendant, as trustee, appealed,
and the Court of Appeal allowed its appeal, set aside the
judgment below, and dismissed the plaintiff-tiff’s action (dismissing also the
plaintiff’s cross-appeal in respect of its other claims).
[Page 455]
The plaintiff appealed to the Supreme Court
of Canada.
The plaintiff applied before Martin J.A.,
under s. 70 of the Supreme Court Act, R.S.C., 1927, c. 35, for the
approval of a bond as security for the effectual prosecution of an appeal to
the Supreme Court of Canada and for the payment of such costs, etc., as might
be allowed against it. On that application the defendant’s counsel objected to
the approval of the bond, contending that the action was a “proceeding” in
bankruptcy, and that, under the provisions of s. 174 of the Bankruptcy Act, no
appeal lay from the Court of Appeal to the Supreme Court of Canada, unless
special leave to appeal had been obtained from a judge of the Supreme Court.
Martin J.A. held
that such contention was not well founded; that the action was an ordinary
action, commenced in the Court of King’s Bench, and the fact, that leave was
obtained from the judge in bankruptcy to commence the action, under the
provisions of s. 24 of the Bankruptcy Act, did not make the action,
which was commenced pursuant to the leave, a “proceeding” in bankruptcy; that
when leave is given to commence the action, it is brought in the appropriate
court, and proceeds in that court, subject to the procedure therein and to any
right of appeal which exists in that court or with respect to decisions
rendered in that court; that the right of appeal in this action existed, not by
reason of the Bankruptcy Act, but by virtue of the provisions of the Supreme
Court Act, and the appeal was an exercise of the ordinary right of appeal
which is given by the Supreme Court Act from a final judgment of the
court of last resort in the province (Supreme Court Act, R.S.C., 1927,
c. 35, s. 36). He approved of the bond as security.
The defendant (respondent in this Court) now
moved to quash the appeal for want of jurisdiction, on the ground taken by
defendant before Martin J.A. on the said application for approval of bond.
G. F. Henderson K.C. for the motion.
O. M. Biggar K.C. contra.
[Page 456]
The judgment of the court was delivered by
Duff C.J.—We think this application should be dismissed.
We agree entirely with the view expressed by Mr.
Justice Martin in the court below (1) that the action does not fall within the
description “proceedings under this Act” in section 174 of the Bankruptcy
Act and, consequently, the provisions of that section have no application.
The application is dismissed with costs.
Application dismissed with costs.
Solicitors for the appellant: Barr, Stewart & Cumming.
Solicitors for the respondent: Mackenzie,
Thorn, Bastedo & Jackson.
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