GINN v FENG, 2021 ABQB 292


7.3: Summary Judgment (Application and decision)
9.21: Application for new judgment or order
9.24: Fraudulent preferences and fraudulent conveyances

Case Summary

The Appellants appealed two Decisions of a Master. The Appellants had previously obtained a Judgment against the Respondents (the “2009 Judgment”) and subsequently attacked the Respondents’ house transfer as a fraudulent conveyance (the “2015 Action”). The Respondents later declared bankruptcy and were discharged. The Appeal from the Master turned on the following issues: (1) Did the 2009 Judgment survive the Respondents’ bankruptcy and stop the limitation period for suing on or renewing the 2009 Judgment?; and (2) Were the Respondents entitled to immunity in the 2015 Action based on the passage of the 2-year limitation period set out in section 3 of the Limitations Act, RSA 2000 c L-12 (the “Limitations Act”)?

The Court first considered whether the 2009 Judgment survived the Respondents’ bankruptcy. The Court noted that the Rules do not set an expiry date for money Judgments but that the Limitations Act grants the Defendant immunity from liability if the Judgment creditor does not seek a Remedial Order within 10 years.

The Court determined that the 2009 Judgment did not survive bankruptcy. Rule 9.21 permits an Application for a new Judgment or Order on a former Judgment without commencing a fresh Action. The Appellants argued that they sought a Remedial Order in 2018 when they filed an Application requesting that the 2009 Judgment be recognized as not released in bankruptcy. The Court noted that relief is remedial if it requires the Defendant “to comply with a duty or pay damages for violating a right”, citing Yellowbird v Samson Cree Nation No 444, 2006 ABQB 434.

The Court then considered whether the Respondent was entitled to immunity in the 2015 Action. The record showed that the Appellants knew about the fraudulent conveyance alleged in the 2015 Action by at least August 28, 2009. The Court noted that if the 2015 Action amounted to seeking a Remedial Order, then the limitation period under section 3(1) of the Limitations Act had expired before the 2015 Action was commenced and the Respondents are entitled to immunity.

After reviewing case law, the Court determined that the relief sought in the 2015 Action was a Remedial Order. The relief sought in the 2015 Action was in substance demanding that the Respondents comply with their duty to pay the 2009 Judgment. As a result, the Court determined that Summary Judgment was appropriate in the circumstances (as the Master had found) and dismissed the Appeal.

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