Bergen (Re)

2021 BCSC 2074 Bergen (Re)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Bergen (Re), 2021 BCSC 2074 Date: 20211022 Docket: B150478 Estate No.: 11-1918570 Registry: Vancouver In Bankruptcy and Insolvency In the Matter of the Bankruptcy of Jacob Elias Bergen Before: Master Muir (As Registrar) Reasons for Decision In Chambers Counsel for Jacob Elias Bergen, appearing via telephone conference: D. Donohoe Counsel for the Trustee, Campbell Saunders Ltd., appearing via telephone conference: B. Lewis Hand Counsel for an opposing creditor, TCC Mortgage Holdings Ltd., appearing via telephone conference: J.L. Williams Place and Date of Hearing: Vancouver, B.C. September 28, 2021 Place and Date of Decision: Vancouver, B.C. October 22, 2021 Introduction [1] This is an application by the bankrupt, Jacob Elias Bergen ("Mr. Bergen"), for a discharge from bankruptcy, conditional on his payment to the trustee, Campbell Saunders Ltd. (the "Trustee"), of $1,400 by minimum monthly payments of $140 over the next ten months or by a lump sum payment. [2] Mr. Bergen made a voluntary assignment into bankruptcy on October 6, 2014. [3] The discharge is opposed by both the Trustee and by a creditor, TCC Mortgage Holdings Ltd. ("TCC"). [4] The Trustee's position is that the behaviour of Mr. Bergen in failing to properly disclose certain assets, consisting of a boat and units in the Homestead Manitoba Limited Partnership (the

"Partnership Units"), caused an increase of $29,700 to the professional costs of the Trustee. The Trustee submits that a meaningful monetary condition should be required to deter such conduct and to compensate the estate. [5] TCC has several issues with Mr. Bergen's application. It argues that Mr. Bergen did not disclose assets, being the boat, the Partnership Units, an interest in land, and an ICBC settlement. [6] In addition, TCC submits that Mr. Bergen put it to unnecessary expense by his "frivolous or vexatious" defence of the lawsuits it instituted against him. [7] TCC submits that the application for discharge should be refused or, alternatively, suspended, or only granted on condition: 1) that Mr. Bergen satisfy certain information requests that have been made by TCC with the right to further reasonable requests and examination; and 2) that Mr. Bergen pay into the estate an amount equal to the extra expense he caused the Trustee. Background [8] Mr. Bergen is 69 years old. From 1990 to around 2009, he worked as a commercial building developer and construction manager. [9] Mr. Bergen became involved with the development of a multi-story residential condo development in Penticton, BC, known as the "Alysen Place", which was financed by TCC. In about 2008, Mr. Bergen, by signing a personal guarantee, guaranteed the debts of Pilot Pacific Developments Inc., his development

company, to TCC. [10] When the development project was put into receivership by TCC during the recession of 2008 to 2009, TCC sued on the personal guarantee. TCC applied for summary judgement in its foreclosure proceeding, however, Madam Justice Fitzpatrick determined there was a triable issue and referred the dispute to the trial list. [11] TCC pursued two actions against Mr. Bergen and others, which were tried together. The trial took place in late 2013. Reasons were delivered in July 2014 and are reported at TCC Mortgage Holdings Ltd. v Pilot Pacific Developments Inc., 2014 BCSC 1376 (the "Trial Reasons"). Judgments of $25,833,872.85 plus per diem interest and $51,687,522.09 plus per diem interest were granted against Mr. Bergen and he was ordered to pay special costs to TCC. [12] The trial judge, in the Trial Reasons, noted when considering the issue of special costs: [81] In my view, the relevant considerations are the allegations made by the defendants, that the plaintiff and its executive officer deliberately and repeatedly made false representations for the purpose of inducing the defendants to enter into security agreements that the plaintiff then disavowed, and the implicit suggestion that the plaintiff's case was based on a perpetuation of that dishonest conduct. That conduct, if proven, would reasonably be seen as serious, improper and with a clear tenor of

dishonesty and fraud. It would properly attract a significant measure of judicial censure. In this case, while those allegations were made, they were not proven. In fact, there was simply no meaningful proof adduced by the defendants at all to make that case, other than the testimony of Mr. Bergen. I am satisfied that a fair-minded and objective observer would conclude that there was no merit to the defence position. The concern that I noted earlier, that Mr. Bergen was not prepared to confront the plaintiff's principal witness with those allegations, is a consideration as well. [82] The fact that Mr. Bergen is a self-represented litigant might be seen as a factor favouring a less strict view of the matter. With respect, while the court will, in the usual course, necessarily make allowance for that fact, it is also important that standards of proper conduct be maintained. Surely it cannot be that a whole different standard will apply for in person litigants who elect to conduct their own case. In the present matter, while Mr. Bergen was never rude or obnoxious in his conduct in the courtroom, the case as he conducted it was quite bereft of merit and, as I have observed, was based on serious allegations of misconduct for which no worthwhile proof was offered. [83] Those factors considered, it is my conclusion that the principles that warrant an award of special costs have

application in the case at bar. Accordingly, the plaintiff is entitled to special costs. [13] Mr. Bergen appealed. On September 25, 2014, Mr. Bergen's application for a stay of proceedings was dismissed on the grounds that the appeal was devoid of merit: TCC Mortgage Holdings Inc. v. The Bergen Family Trust, 2014 BCCA 363. [14] On October 6, 2014, Mr. Bergen made a voluntary assignment into bankruptcy and Todd McMahan Inc. ("TMI") was appointed the trustee of his estate. He provided a sworn statement of affairs the same day. [15] Mr. Bergen did not list a boat that he had purchased for approximately $150,000 in about 2008 as an asset on his sworn statement of affairs. Mr. Bergen claims that he told the original trustee, Ron McMahan of TMI ("Mr. McMahan"), about the boat but Mr. McMahan was skeptical of its value and was not interested in realizing on it. Mr. Bergen says that he remembers this distinctly because he found the comments astonishing. [16] Mr. McMahan disputes this in an email and says that he would not have advised a bankrupt not to list an asset on his sworn statement of affairs. [17] Mr. Bergen also deposes that TCC, as inspector of his estate, was well aware of the existence of the boat, as he had previously shown the boat to Barry Brovender, a vice-president of TCC. [18] In addition, in his statement of affairs, Mr. Bergen denied having sold or transferred any

property within 12 months of the initial bankruptcy event. [19] On April 13, 2015, the present Trustee replaced TMI, at the request of TCC, and Steven Lum ("Mr. Lum") of the Trustee was given conduct of Mr. Bergen's estate file. [20] At the creditors' meeting held on April 13, 2015, Mr. Bergen was asked about the Partnership Units and he said that he had sold the units two years previously through an investment advisor. [21] Mr. Bergen says he did sign a transfer form, but it appears it was never processed. [22] The Trustee, through Mr. Lum, apparently learned of the boat shortly after the Trustee took over from TMI. The first supplementary s. 170 report dated August 5, 2015 takes the position that the boat was an asset of the estate. The Trustee paid the boat's monthly moorage fees, but failed to arrange to have insurance reinstated that had been cancelled when Mr. Bergen declared bankruptcy. [23] On August 11, 2015, Mr. Bergen's application for a discharge was heard by Registrar Cameron, as he then was, who ordered: 1. the application for discharge of the bankrupt is adjourned generally; 2. the Trustee will provide in writing to counsel for the bankrupt by August 14, 2015 a detailed set of particulars of the documents and information said to be outstanding and to be produced by the bankrupt; 3. the Trustee may send the written set of particulars to counsel for the bankrupt by

email; and 4. the objecting creditor may provide written particulars for the basis of its objection to the Trustee and to counsel for the bankrupt by August 19, 2015. [24] On August 26, 2015, after a consult resulting from memory issues, Mr. Bergen was diagnosed with vascular dementia. [25] On November 24, 2015, the Trustee examined, Margriet Warren ("Ms. Warren"), Mr. Bergen's former spouse. She acknowledged that Mr. Bergen had transferred the Partnership Units to her in June 2014 for no consideration. [26] Ms. Warren subsequently transferred her interest in the Partnership Units to the Trustee. [27] On or about April 25, 2016, the Trustee sold the Partnership units to a third party and received approximately $115,000 in net sale proceeds. [28] The boat was vandalized in February 2016. As noted above, the Trustee had not arranged to replace the insurance on the boat. [29] Mr. Bergen brought another application for discharge in January 2017. [30] Mr. Lum asserted in his second supplemental s. 170 report to the court dated in January 2017 that remittance of an ICBC settlement payment of $4,000 made to Mr. Bergen should become a condition of his discharge from bankruptcy, despite this payment being for pain and suffering and, hence, exempt from any claim. [31] The Trustee in addition sought payment of 12 months of surplus income of approximately $2,724. [32] TCC opposed the

discharge, inter alia, on the basis that Mr. Bergen had failed to make timely disclosure of documents and they sought to examine him generally on his financial situation after document production was made. [33] Mr. Bergen's application was not proceeded with and a new application for discharge was filed on May 17, 2017. [34] TCC then brought an application filed May 17, 2017 to have Mr. Bergen cross-examined on his affidavits of September 26, 2016 and April 6, 2017. It also sought an order that Mr. Bergen provide an authorization for production of his family lawyer's file regarding a charge Mr. Bergen registered against Ms. Warren's home pursuant to the Land (Spouse Protection) Act, R.S.B.C. 1996, c. 246. [35] In the third supplemental s. 170 report of June 7, 2017, the Trustee sought suspension of the discharge for a period of six months and an order for the bankrupt to pay a "penalty amount" of $20,000 to the estate, as apparently described by Mr. Lum during oral submissions, based on five alleged non-disclosures of assets or income by Mr. Bergen: a. receipt of $4,000 from ICBC; b. the transfer of the Partnership Units; c. receipt of monthly rental income; d. receipt of sales commissions earned; and e. filing of a Land (Spousal Protection) charge. [36] The applications were heard by Master Vos on June 9, 2017. The discharge application was adjourned for six months. The

penalty/fine sought by the Trustee was adjourned and Master Vos granted liberty for that to be heard at the same time as the discharge application. [37] The clerk's notes simply indicate that TCC's application was adjourned. [38] Mr. Bergen's position on each of the alleged non-disclosure matters was provided: a. ICBC payment [39] The Trustee has apparently conceded that this was damages for pain and suffering and, thus, exempt from any claims. b. Partnership Units [40] Mr. Bergen failed to disclose his gifting of these Partnership Units to his wife less than two years before declaring bankruptcy. He says he recalls transferring them to a family trust in 2008 or 2009, but that apparently was never perfected. He says he then recalls transferring them to his former wife quite some time before his assignment into bankruptcy. He says his failure to disclose was an inadvertent omission. c. Monthly rental income [41] Mr. Bergen asserts that this was fully disclosed in both his statement of affairs and his statement of income and expenses. He pointed out that the statement of income and expenses has a note that the rental income covers the mortgage. Further, that the Trustee diverted the rent from Mr. Bergen to the estate prior to selling the condominium. d. Sales commissions [42] Mr. Bergen worked as a commission salesman for Sicon Signs in 2015 to 2017. In his second supplementary

report of January 30, 2017, Mr. Lum alleges, "the Bankrupt would not have disclosed the sales commissions if the Trustee had not contacted the employer". Mr. Bergen denies this. He says that commissions were not payable until the installation was complete and the customer had paid, sometimes months after the order was placed. He says his commission income was accurately reported. e. Land (Spouse Protection) Act charge [43] Mr. Bergen says that one result of his business failure and bankruptcy was his marriage breakdown with Ms. Warren. When he retained a family lawyer, he placed this charge on title to her home. He says he made no contribution to her home and when it became clear he had no claim to the property, he directed that the charge be released. [44] For reasons that are not apparent, despite repair costs for the boat estimated at $25,000, the Trustee sold the boat for $1,000 in November 2017 and allegedly made allegations to the purchaser that Mr. Bergen had vandalized the boat. [45] Mr. Bergen has tried numerous types of jobs since 2017. Presently, he is employed by Newvo Living as an independent contract property manager. Mr. Bergen's monthly income and expense statements for 2021 declare self-employed monthly income of $2,200 from his work and about $1,438 in monthly pension income, old age security and C.P.P., for a total gross monthly income of $3,638. [46] He has

surplus income on his monthly reports of about $139. Mr. Bergen states that he has no retirement savings and will need to rely on his pension and work income. [47] Mr. Bergen's 2015 diagnosis of vascular dementia was confirmed on a reassessment in 2021, with the normal degenerative progression expected of such a condition. As a result, his driver's licence was revoked but, with retraining, he managed to re-qualify. [48] This matter has been essentially dormant since 2017. Neither the Trustee nor TCC have pursued matters further in that time. In particular, TCC does not appear to have pursued document requests, other than reiterating them in correspondence earlier this year, and it has not pursued its application for cross-examination of Mr. Bergen. [49] When I asked counsel for TCC why it had not pursued an examination of Mr. Bergen, his response was to the effect that there was no point, as he would not remember anything. [50] That does not answer why TCC has not sought orders for production of the documents they seek, including from third parties. Many of the document requests were for banking and trust records arising from what TCC called "suspicious transactions" involving the family trusts in 2013-2014, although I gather that some of these documents were produced in advance of the hearing before Master Vos in 2017. [51] Mr. Bergen's evidence about the trusts, from his

affidavit sworn September 13, 2021 is: 84. In past affidavit materials, I believe that there have been references to both the Bergen Family Trust and to the S Family Trust. The Bergen Family Trust has either been terminated or has ceased to operate as of about 2009-2010, as I believe it was established in the late 1980s. The S Family Trust was created by my mother and about the time of my assignment, my daughter Katherine took over the financial management of this trust. I am not expecting to receive any financial support from this trust in the future and I am not a beneficiary of this trust. [52] Mr. Bergen goes on to deny that he has concealed any assets or income and deposes that he cannot afford to make payment to the Trustee of $20,000, as was previously sought, in anything less than 12 years. [53] As to the evidence that the investigation of the boat and Partnership Units assets cost the Trustee an additional $29,752.50, the evidence is contained in an affidavit of Laura Cooper, a paralegal in counsel for the Trustee's firm. It appends an email from Cherry Dumalagen to counsel for the Trustee, which notes: We went through the time slips and we came up with 71.85 hours ($29,752.50) spent on transactions relating to the boat and homestead assets. [54] Counsel for Mr. Bergen took issue with this evidence as being double hearsay, impossible to check, and as apparently

incorporating all work done regarding these two assets, not just work uncovering them. He submits that any other work would have been required in any event. The Statutory Framework [55] Section 158 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 [BIA], requires a bankrupt to make complete disclosure and delivery of his property to the Trustee. [56] As a first time bankrupt, with an opposition to discharge having been filed, BIA s. 168.1(1)(a)(ii) would allow an automatic discharge 21 months after the date of bankruptcy. [57] Section 172 of the BIA provides: Court may grant or refuse discharge 172 (1) On the hearing of an application of a bankrupt for a discharge, other than a bankrupt referred to in section 172.1, the court may (a) grant or refuse an absolute order of discharge; (b) suspend the operation of an absolute order of discharge for a specified time; or (c) grant an order of discharge subject to any terms or conditions with respect to any earnings or income that may afterwards become due to the bankrupt or with respect to the bankrupt's after-acquired property. Powers of court to refuse or suspend discharge or grant conditional discharge (2) The court shall, on proof of any of the facts referred to in section 173, which proof may be given orally under oath, by affidavit or otherwise, (a) refuse the discharge of a bankrupt; (b) suspend the discharge for such

period as the court thinks proper; or (c) require the bankrupt, as a condition of his discharge, to perform such acts, pay such moneys, consent to such judgments or comply with such other terms as the court may direct. [58] Section 173(1) of the BIA sets out the facts, proof of which allow refusal, suspension, or granting of a conditional discharge. The Notice of Objection [59] TCC provided a notice of objection to Mr. Bergen's discharge, alleging the following: a. The bankrupt has failed to disclose assets to the trustee, namely units in a limited partnership, a boat, and an interest in land; b. The assets of the bankrupt are not of a value equal to 50 cents on the dollar on the amount of the bankrupt's unsecured liabilities; c. The bankrupt has omitted to keep such books of account as are usual and proper in the business carried on by the bankrupt and as sufficiently disclose the business transactions and financial position of the bankrupt within the period beginning on the day that is three years before the date of the initial bankruptcy event and ending on the date of the bankruptcy; d. The bankrupt has failed to account satisfactorily for any loss of assets or for any deficiency of assets to meet the bankrupt's liabilities; and e. The bankrupt has put TCC Mortgage Holdings Inc. to unnecessary expense by a frivolous or vexatious defence to an action properly brought against

the bankrupt by TCC Mortgage Holdings Inc. [60] I will deal with each of these. a. The bankrupt has failed to disclose assets to the trustee, namely units in a limited partnership, a boat, and an interest in land [61] There is no question that there was an initial failure to disclose assets, specifically the boat and the Partnership Units. Those issues appear to have given rise to a suspicion on the part of the Trustee that there were other matters to investigate, and those were raised with Mr. Bergen and ultimately resolved. [62] The initial failure to disclose, however, was a breach of Mr. Bergen's obligation under s. 158 of the BIA. b. The assets of the bankrupt are not of a value equal to 50 cents on the dollar on the amount of the bankrupt's unsecured liabilities [63] It is notable that the significant debt from which this bankruptcy sprung is an obligation arising from a guarantee of a development company. There was no allegation or finding that Mr. Bergen engaged in any dishonesty or misappropriation. [64] Regardless, clearly Mr. Bergen's assets were not of a value equal to 50 cents on the dollar of his unsecured liabilities. [65] This is then a proven s. 173(1) fact. c. The bankrupt has omitted to keep books of account d. The bankrupt has failed to account satisfactorily for any loss of assets or for any deficiency of assets to meet the bankrupt's liabilities [66] The

allegations that Mr. Bergen failed to keep proper records and failed to account for loss of assets both stem from the family trusts (namely, the Bergen Family Trust and S Family Trust) and his role in alleged monies paid from the family trusts to the development company and from the development company to the family trusts. [67] There was no uptake on this issue by the Trustee. Indeed, the questions seemed to stem from the litigation and perhaps the potential recovery of some part of the judgment from the trust or trusts. Whatever the suspicions, they have not been pursued. TCC has been free to seek the documents, examinations and other evidence from Mr. Bergen, third parties and the trust representatives, but there is no evidence that it has done so. [68] Rather, it seeks to keep those avenues open by the conditional order it seeks in this proceeding. [69] I was not convinced that there was substance to the allegations that impacted Mr. Bergen's financial position or his position as bankrupt, as opposed perhaps to the relationship between the development company and the trusts. [70] Thus, I did not find substance to these allegations of s. 173(1) facts. e. The bankrupt has put TCC Mortgage Holdings Inc. to unnecessary expense by a frivolous or vexatious defence to an action properly brought against the bankrupt by TCC Mortgage Holdings Inc. [71] Mr. Bergen's position at trial

was that TCC had agreed not to enforce the guarantees and mortgages, but rather had agreed to take an equity position in the development. This was found to be contrary to virtually all of the evidence other than Mr. Bergen's own testimony. [72] As a result, the trial judge was minded to award special costs against Mr. Bergen. [73] I agree, in the circumstances, that this s. 173(1) fact was proved. The Trustee's Position [74] The Trustee sought a significant financial condition on Mr. Bergen's discharge, reflective of the Trustee's position that Mr. Bergen's failure to disclose ran up the Trustee's costs by more than $29,000. [75] Counsel referred me to Re Bowen, 2015 BCSC 502 as setting out the relevant principles to consider on a discharge: [32] Or, expressed another way, these principals may be summarized as: (a) the purpose of the Act is remedial in nature, to assist well-intentioned but unfortunate debtors to discharge their debts and carry on as useful citizens; (b) a discharge is a privilege that is earned, not a right, and an application for discharge can be refused, issued conditionally, or suspended; (c) in exercising its discretion, the court should balance the interest of the creditors in being paid, the interest of rehabilitation of the bankrupt, and the integrity of the bankruptcy process and the public's perception of it; (d) the court looks to see that the

bankrupt has learned from the bankruptcy process and has modified his behaviours to ensure that the same problems won't reoccur; (e) with repeat bankrupts or bankrupts who are ill-intentioned, dishonest, indifferent, or misleading, the purpose of the Act shifts toward the protection of society, the upholding of the integrity of the Act, and the sanctioning of inappropriate behaviour; and (f) depending on the circumstances, the conditions of discharge could involve the imposition of conditions for the payment of funds to the bankrupt's estate, even where there is no apparent ability to make payments. Re Bury, [2007 ABQB 490]. [76] The Trustee's position was that Mr. Bergen was not a "well intentioned but unfortunate debtor" in that he failed to disclose the boat and he gave false answers about the Partnership Units on his statement of affairs and at the creditor's meeting. [77] The Trustee also asserted that Mr. Bergen has continued to twist the truth regarding the disposition of the Partnership Units. Analysis [78] Mr. Bergen breached s. 158 of the BIA by failing to make a complete and accurate disclosure of his assets and those disposed of as required by that section. [79] In addition, several s. 173(1) facts were proved. [80] It is clear, in the circumstances, that it is appropriate to consider whether the discharge sought by Mr. Bergen should be dismissed, suspended, or

granted on condition. [81] The breach of his duties as a bankrupt obviously cannot be condoned. [82] This is the fourth application for discharge brought by Mr. Bergen. Absent objection, he would have been discharged automatically in 2015. The proceedings since have resulted in a de facto suspension of more than six years. [83] Despite that time passing, however, and various additional suspicions being raised and investigated by the Trustee and TCC, there is nothing in the evidence that indicates to me that Mr. Bergen has otherwise breached his duties as a bankrupt. [84] I expect the Trustee has now investigated and satisfied itself that appropriate disclosure had been made. [85] I also note that despite its stated position that it would be seeking court orders for examinations and document disclosure, that TCC has not pursued its concerns since the last application for discharge by Mr. Bergen, other than by reiterating its document and information requests and seeking those as a condition of discharge. [86] Mr. Berger submits that the failure of the Trustee to insure the boat, despite clearly knowing of it and taking the position that it was an asset of the estate in its report of August 5, 2015, caused a much more substantial loss to the estate than the cost of investigating the boat and the Partnership Units. [87] The Trustee submits, and I accept, that this is not a factor

to be considered in determining the appropriate order on this application, as it is the actions of Mr. Berger that are at issue here. [88] Looking at the facts as a whole, I can find no basis to refuse the discharge of Mr. Bergen as is pressed by TCC. [89] As noted by Master Elwood in Re Poonian, 2020 BCSC 547: [54] In Industrial Acceptance Corp. v. Lalonde, 1952 CanLII 2 (SCC), [1952] 2 S.C.R. 109, the Supreme Court of Canada held that a discharge should only be refused outright in extreme cases or where the conduct of the debtor has been particularly reprehensible, saying at p. 120: ...The purpose and object of the Bankruptcy Act is to equitably distribute the assets of the debtor and to permit of his rehabilitation as a citizen, unfettered by past debts. The discharge, however, is not a matter of right and the provisions of ss. 142 and 143 [now 172 and 173] plainly indicate that in certain cases the debtor should suffer a period of probation. The penalty involved in the absolute refusal of discharge ought to be imposed only in cases where the conduct of the debtor has been particularly reprehensible, or in what have been described as extreme cases. [Emphasis of Master Elwood.] [55] Where neither an absolute discharge nor an outright refusal is appropriate, the courts will usually impose conditional orders requiring payment of a certain sum, which may be substantial: Re.

Montalban, [2013 BCSC 683] at para. 126, citing Kozack [v. Ritcher, [1974] S.C.R. 832], In Re Buell (1954), 135 C.B.R. 53, [1954] O.J. No. 446 (S.C.); Re Crowley [(1984), 54 C.B.R. (N.S.) 303] at 308 and 311-312. [90] I cannot conclude that the circumstances here militate in favour of refusing the discharge. [91] Given the lengthy time since the declaration of bankruptcy, I do not consider that an additional suspension will assist in upholding the integrity of the system. [92] As to financial conditions, I agree with Mr. Bergen's submission that it is appropriate to consider his age, his current income and prospects, and the health challenges he is facing with progressive vascular dementia. [93] As the court of appeal recently noted in Perrier v. Canada (Revenue Agency), 2021 BCCA 269: [43] While appellate courts have recognized intervention to vary the discharge conditions imposed by the registrar should be exceptional, they have intervened in cases where the conditions imposed would result in an appellant being unable to meet the conditions within a reasonable period in bankruptcy: McCallum, Re (1988), 1988 CanLII 2931 (BC CA), 29 B.C.L.R. (2d) 333 (C.A.); Westmore v. McAfee (1988), 1988 CanLII 187 (BC CA), 23 B.C.L.R. (2d) 273 (C.A.); In Re: Joli-Coeur; sous-ministre du Revenu du Québec c. Joli-Cœur, 1996 CanLII 12419 (QC CA), [1996] R.D.F.Q. 85. [44] In Joli‑Coeur the court

held that a conditional discharge order should not amount, in effect, to a refusal to discharge the bankrupt, by incorporating conditions that cannot reasonably be met. [94] That court also noted: [80] In our opinion, the circumstances of this bankruptcy do not support the imposition of conditions that will not be satisfied for 12 years, until the appellant is into his retirement years. Such conditions are too onerous. Given the registrar's findings of fact, including the fact the appellant paid no taxes for an extended period, has no dependents and is alone dependent on his income, and is steadily employed and able to generate income surplus to his needs, the appellant should be required to make a substantial payment to CRA. However, with a view to imposing conditions that will permit him to make a fresh start, we would not, in the circumstances of this case, impose conditions that cannot be met within 5 years. [95] The condition sought by TCC would result in Mr. Bergen, at age 69, being saddled with a conditional order that likely would not be satisfied for 12 years. [96] That is much too onerous. Conclusion [97] Given the surplus income that Mr. Bergen declares of approximately $140 per month, his age and circumstances, I conclude that a discharge should go, conditional on Mr. Bergen paying $2,800 in monthly installments of $140, with the ability to pre-pay at any time. [98] Once this condition is satisfied, the bankrupt shall have an absolute discharge. "Master Muir"