MORBANK FINANCIAL INC v FIELD, 2014 ABCA 3
Rule 515.1: General Appeal List
The Applicant sought to restore an Appeal to the General Appeals List under Rules 515.1(9.1) and 515.1(10) of the Alberta Rules of Court. The previous Application was struck due to non-compliance with the Rules. The Appeal was from an Order by Burrows J. in the Court of Queen’s Bench declaring the Applicant bankrupt.
The Applicant disputed the validity and the amount of the debts claimed by the Respondent. The Applicant had relevant lawsuits to deal with these disputes, but argued that Burrows J., when granting the Order for bankruptcy, effectively granted Summary Judgment against his other claims. Watson J.A. stated that the existence of such Actions did not bar or oust the proceedings before the lower Court.
With respect to debts owing, the Applicant alleged that Burrows J. ought not to have used certain evidence against him. The Court found that there was nothing in the reasons to suggest that Burrows J. had misused the evidence or that it had been improper for him to consider it.
The Applicant also claimed unfair treatment by Burrows J., referring specifically to the fact that the Respondent was permitted to file voluminous material on short notice, whereas the Applicant was not allowed to file his own evidentiary response. The evidence the Applicant alleged had been denied by Burrows J. was unclear to Watson J.A. From the evidence, it appeared that Burrows J. had reviewed the Applicant’s documents and considered the information prior to making his Decision.
In determining whether to restore the Appeal, the Court considered the following: the reason why the Appeal was struck; the length of the delay in bringing the Application to restore; the overall conduct of the litigation; the prejudice to the Respondent; and the merits of the Appeal.
With regard to why the Application was struck, the Applicant’s position was that he made a simple miscalculation of timelines. Watson J.A found no evidence to support this assertion and rejected this claim.
The Applicant further claimed that, during the hearing before Burrows J., the Applicant made strategic or other mistakes that rendered the hearing so unfair that he should be given a second chance. Watson J.A. stated that this would be inconsistent with the policy behind the Rules of Court; specifically, that the competence of a party to a civil proceeding should not be the problem of the Court or the other party: Kedmi v Korem, 2012 NSCA 124 at para 8.
Overall, the Court found that there was no merit to the Appeal. The Applicant did not identify any reversible errors made by Burrows J. within any applicable standards of review. Finally, the Court did not consider assertions from the Applicant and another party that bankruptcy would affect his status as an architect. The Court decided that it must follow the procedures for bankruptcy to balance the interests of creditors and of insolvent debtors, and to allow such debtors to be successfully re-integrated into the commercial mainstream. The Court dismissed the Application to restore the Appeal.View CanLII Details