Fafard (Re)

Fafard (Re)

The court refused to annul the bankruptcy because the bankrupt met the statutory definition of insolvent person and there was no evidence of fraud or an abuse of process; however, given the tortious conduct leading to the liability and the need to protect the integrity of the bankruptcy system, the court granted a conditional discharge requiring payment of $5,000 to the estate, balancing culpability against the bankrupt's demonstrated inability to pay more.

Citation
2017 NSSC 286
Parties
Bankrupt: Charles Eugene Fafard; Creditor: The Facility Association; Trustee: Grant Thornton Limited
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
27 October 2017
Procedural Posture
Bankruptcy and Insolvency / Hearing on Annulment Motion and Discharge Application
Outcome
Bankruptcy not annulled; discharge granted conditionally
Legal Topics
Annulment, Discharge, Conditional Discharge, Abuse of Process, Assignment in Bankruptcy, Garnishment, Judgment Assignment
Source Language
English
Bankruptcy and Insolvency Tort Law Insurance Law Civil Procedure Annulment Discharge Conditional Discharge Abuse of Process +3 more

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Parties

Charles Eugene Fafard

Bankrupt

The Facility Association

Creditor

Grant Thornton Limited

Trustee

Procedural Posture

Bankruptcy and Insolvency / Hearing on Annulment Motion and Discharge Application

Legal Issues

  1. 1 Whether the bankruptcy should be annulled for abuse of process or fraud
  2. 2 Whether the bankrupt should receive an absolute discharge or a conditional discharge
  3. 3 What conditions and quantum (if any) are appropriate for discharge given the bankrupt's means and conduct

Ratio Decidendi

The court refused to annul the bankruptcy because the bankrupt met the statutory definition of insolvent person and there was no evidence of fraud or an abuse of process; however, given the tortious conduct leading to the liability and the need to protect the integrity of the bankruptcy system, the court granted a conditional discharge requiring payment of $5,000 to the estate, balancing culpability against the bankrupt's demonstrated inability to pay more.

Court Disposition

Bankruptcy not annulled; discharge granted conditionally

Orders

  • Bankruptcy is not annulled
  • Discharge of Charles Eugene Fafard is granted subject to payment of $5,000 to the bankrupt's estate as a condition of discharge