Branconnier (Re)

Branconnier (Re)

The court held that the implied undertaking of confidentiality applies to evidence obtained at an examination in aid of execution, but on the facts the Alberta Securities Commission was granted a nunc pro tunc waiver because (1) the transcript relates to the same or similar issues concerning the bankrupt's assets...

Source-derived case information.

Citation
2017 BCSC 1896
Parties
Applicant/creditor: Alberta Securities Commission; Bankrupt/respondent: Rene Joseph Branconnier; Third Party/respondent: Sharon Faye Branconnier
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
23 October 2017
Procedural Posture
Bankruptcy Proceeding (application Under S. 163(2) Bia) / Application Hearing and Reasons for Judgment (decision)
Outcome
Application granted in part: implied undertaking found to apply but was waived nunc pro tunc; order made for third‑party examination and production
Legal Topics
Implied Undertaking of Confidentiality, Examination in Aid of Execution, Section 163(2) BIA Third‑party Examination, Waiver of Implied Undertaking, Use of Discovery Transcripts, Trust and Asset Tracing
Source Language
english
Bankruptcy and Insolvency Civil Procedure Enforcement of Judgments Discovery/confidentiality Implied Undertaking of Confidentiality Examination in Aid of Execution Section 163(2) BIA Third‑party Examination Waiver of Implied Undertaking +2 more

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Parties

Alberta Securities Commission

Applicant/creditor

Rene Joseph Branconnier

Bankrupt/respondent

Sharon Faye Branconnier

Third Party/respondent

Procedural Posture

Bankruptcy Proceeding (application Under S. 163(2) Bia) / Application Hearing and Reasons for Judgment (decision)

Legal Issues

  1. 1 Whether the implied undertaking of confidentiality applies to evidence obtained at an examination in aid of execution
  2. 2 Whether that implied undertaking is relevant to these proceedings and can be displaced by Rule 13‑4(8) or other considerations
  3. 3 Whether the implied undertaking should be waived nunc pro tunc to permit use of the transcript

Ratio Decidendi

The court held that the implied undertaking of confidentiality applies to evidence obtained at an examination in aid of execution, but on the facts the Alberta Securities Commission was granted a nunc pro tunc waiver because (1) the transcript relates to the same or similar issues concerning the bankrupt's assets and estate, (2) the Commission originally obtained and filed the transcript in related Supreme Court enforcement proceedings and then refiled materially the same material in the bankruptcy context due to oversight rather than deliberate circumvention, and (3) the interests of justice outweighed any prejudice to the bankrupt. The court also found sufficient cause under s.163(2)...

Court Disposition

Application granted in part: implied undertaking found to apply but was waived nunc pro tunc; order made for third‑party examination and production

Orders

  • Implied undertaking attaching to the transcript of the July 15, 2016 examination is waived nunc pro tunc and the Alberta Securities Commission is permitted to use the Transcript for the purposes of its application under s.163(2) BIA
  • Sharon Faye Branconnier is ordered to attend for examination under oath at a time and place fixed by counsel