Black v. Krupp MaK Maschinenbau GmbH

Black v. Krupp MaK Maschinenbau GmbH Court Court of Appeal Date 1996-11-18 Citation 1996 NSCA 2 Docket CA 127649 Judge/Registrar/Adjudicator Clarke, Lorne O. (Honourable Chief Justice) Document Type Decision Decision Content C.A. No. 127649 NOVA SCOTIA COURT OF APPEAL (In Bankuptcy) Cite as Black v. Krupp MaK Maschinenbau GmbH, 1996 NSCA 2 IN THE MATTER OF: THE BANKRUPTCY OF NsC DIESEL POWER INCORPORATED BETWEEN: FREDERICK W. L. BLACK ) The Applicant/Appellant in Person (in all capacities) ) ) Applicant/Appellant ) Richard N. Rafuse, Q.C. - and - ) (on some issues) ) KRUPP MaK MASCHINENBAU ) GmbH & KRUPP MaK DIESEL INC., ) Thomas M. Macdonald ABN AMRO BANK CANADA, ) David G. Coles ERNST & YOUNG, INC., (Trustee) ) Tim Hill ERNST & YOUNG, INC., (Personal Capacity) ) Robert W. Wright, Q.C. SUPERINTENDENT IN BANKRUPTCY ) D. Bruce Clarke ) Respondents ) ) ) ) ) KRUPP MaK MASCHINENBAU ) GmbH & KRUPP MaK DIESEL INC., ) Thomas M. Macdonald ABN AMRO BANK CANADA, ) David G. Coles ERNST & YOUNG, INC., (Trustee) ) Tim Hill ERNST & YOUNG, INC., (Personal Capacity) ) Robert W. Wright, Q.C. SUPERINTENDENT IN BANKRUPTCY ) D. Bruce Clarke ) Applicants ) - and - ) ) FREDERICK W. L. BLACK ) The Respondent in Person (in all capacities) ) ) Respondent ) FREDERICK W. L. BLACK ) (in all capacities) ) The Applicant in Person ) Applicant on Cross-Motion ) - and - ) ) ERNST & YOUNG, INC., (Trustee) ) Tim Hill ABN AMRO BANK ) David G. Coles ) Respondents on Cross-Motion ) ) ) ) Application Heard: ) October 10-11, 1996 ) ) ) ) Judgment Delivered: ) November 18, 1996 ) ) ) ) BEFORE THE HONOURABLE CHIEF JUSTICE CLARKE (IN CHAMBERS) CLARKE, C.J.N.S.: (In Chambers) The Bankruptcy of NsC Diesel Power Inc. and its associated companies has resulted in a series of proceedings before the courts that have been spread over the last five years or thereabouts. Mr. Frederick W. F. Black was its principal operating officer and also a director and shareholder. He has been both the applicant and the respondent in most of the matters which have been before the courts. Prompted by another flurry of applications by various of the parties who are intimately involved in this continuing proceeding, I agreed to hear the parties in Chambers on October 10 and 11, 1996. It is to these matters that I shall refer in the pages that follow. There is some repetition in the narrative respecting certain of the applications which is difficult to avoid. Some of the proceedings are characterized by a measure of brevity which at the minimum should be understood by the parties. The following abbreviations are used. BIA refers to the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3. General Rules refer to those made pursuant to the Bankruptcy and Insolvency Act. CPR refers to the Nova Scotia Civil Procedure Rules. Houlden & Morawetz refers to the 1996 Annotated Bankruptcy and Insolvency Act of which text Houlden & Morawetz are the authors. SCC refers to the Supreme Court of Canada. NSCA refers to the Nova Scotia Court of Appeal. NSSC refers to the Nova Scotia Supreme Court. The statutory provisions and rules to which reference is made in these reasons will be found in appendix A. 1. This Proceeding On May 30, 1996, Mr. Black, creditors, the Superintendent in Bankruptcy, and the Inspectors appeared before me in chambers (NSCA) with several applications. I set down October 10, 1996 to hear all the applications filed by the parties relating to the Bankruptcy. The hearing continued on October 11, 1996. On July 11, 1996, Mr. Black and the Inspectors appeared before Justice Roscoe in Chambers (NSCA) in Bankruptcy with an application seeking an Order for examination under s. 163 BIA of certain persons in now or formerly in the employ of the Ernst & Young Inc., Trustee and more particularly Messrs. Cleveland, Harris, Reiter and Purchase. She concluded that she did not have jurisdiction to hear the matter or to grant the Order. She made reference to the hearing scheduled before me on October 10, 1996, indicating that further consideration of this application might be given at that time. (C.A. No. 127649) Chambers. On July 15, 1996, Ernst & Young Inc. (Trustee), Ernst & Young Inc. (personal capacity), ABN Amro Bank, Krupp MaK Maschinenbau GmbH and Krupp MaK Diesel Inc. filed separate notices of application for Orders, (1) quashing the respondent's (Mr. Black) notice of appeal pursuant to CPR 62.31(1) and CPR 14.25(1), (2) security for costs pursuant to General Rule 49(4) and CPR 42, and (3) solicitor-client costs in the event of the cause. Krupp MaK Machinenbau GmnH and Krupp MaK Diesel Inc. requested, in addition to the above, an injunction and stay of proceedings with respect to issues in this matter already determined by the NSSC, NSCA and SCC. On July 15, 1996, Mr. Black filed a notice of motion in the Court of Appeal in Chambers for an Order "reviewing and rescinding" Associate Chief Justice Palmeter's orders of June 20, 1994 and August 3, 8 and 10, 1994 on the grounds that "all offend the appropriate provisions of the BIA, the Judicature Act and its Rules of Practice and the Charter of Rights and Freedoms and prejudice the applicant Black, in the fulfilment of his duties and the majority of the Estate of NsC Diesel in the recovery of their claims". On July 29, 1996, the Registrar of the Court of Appeal, by correspondence, informed Mr. Black that I granted him leave to make an application in Chambers for an Order of Examination pursuant to s. 163 BIA, provided Mr. Black limited his submissions to writing and that notice of such application is given to the other parties so that they would have an opportunity to respond in writing in a timely fashion. On August 15, 1996, Mr. Black filed material regarding his application for the examination of Messrs. Harris, Reiter, Cleveland and Landers, all of or formerly, persons in the employ of Ernst & Young Inc., the Trustee of the Estate of the Bankrupt. On August 15, 1996, Mr. Black also filed a cross-motion to the motions of the Trustee (Ernst & Young) and the creditor (ABN Amro Bank). The cross-motion alleging breach of trust sought to remove Ernst & Young Inc. as Trustee and remove its solicitors and agent as well as the solicitors and agents for the Bank. The above reflects in a general way the matters that came before me on October 10 and 11, 1996. 2. History of the Proceedings The following is a chronological summary of relevant proceedings to date. It is accurate so far as I can ascertain from the considerable volume of applications, decisions and Orders that have accumulated to this time. On February 13, 1993, Justice Boudreau (NSSC) (not reported) ordered that Mr. Black was not permitted to continue to act in the same manner as a counsel representing the appellant, NsC Corporation in proceedings before him relative to the Bankruptcy of NsC Diesel Inc. He stayed proceedings taken by NsC Corporation in Bankruptcy until such time as counsel was engaged. His decision was based on his concern that Mr. Black would be in a position of conflict should he be acting as counsel for the Bankrupt while at the same time be called as a witness giving evidence in preliminary and trial matters. The decision of Justice Boudreau was upheld on Appeal to NSCA [(1993), 125 N.S.R. (2d) 223]. Leave to appeal to Supreme Court of Canada was dismissed. On Friday, June 17, 1994, Mr. Black obtained from the Registrar in Bankruptcy an ex parte Order for Examination of certain persons in the employ of the Trustee including Messrs. Cleveland, Harris, Reiter and Landers. During the weekend, counsel for the Trustee contacted Associate Chief Justice Palmeter at his home to inform him of the Registrar's Order and indicated that the Trustee objected to the nature of the Order. The Associate Chief Justice was then the caseflow manager of an action in process before the NSSC. On Monday, June 20, 1994, Associate Chief Justice Palmeter filed an ex parte Order which stayed the June 17, 1994 Order of the Registrar of Bankruptcy "pending further determination" by the Court. On June 29, 1994, Mr. Black filed a notice of motion in the NSSC to rescind the Order of June 20, 1994 pursuant to s. 187(5) BIA. On or about July 13, 1994, Associate Chief Justice Palmeter reconvened the case management process to permit an inter partes hearing on the June 17, 1994 Order of the Registrar and his June 20, 1994 Order by which he stayed the Registrar's Order. Associate Chief Justice Palmeter determined that the Registrar's Order was improper and he refused to exercise his discretion to revisit his own Order staying the Registrar's Order or further, to entertain an appeal. He also determined that all applications by Mr. Black would be stayed until Mr. Black obtained legal counsel. In July, 1994, Associate Chief Justice Palmeter, by correspondence, informed Mr. Black to "not correspond further with this Court except through counsel". An appeal was filed in NSCA Chambers by Mr. Blacknrespecting the July 13, 1994 decision and the June 20, 1994 Order. Mr. Black set these down for hearing in NSCA Chambers on August 4, 1994. On August 3, 1994, Associate Chief Justice Palmeter issued Orders confirming an earlier decision (July 13, 1994) in which he, (1) dismissed with costs Mr. Black's application for an Order removing Boyne Clarke as solicitor for ABN Amro Bank, (2) dismissed Mr. Black's application for an Order for examination of certain parties under s. 163 BIA and, (3) issued an order, upon the motion of the Court, requiring that all applications by Frederick W. L. Black as an officer of any of his related companies and any applications by the said companies be stayed until such time as they are represented by legal counsel authorized to carry on the practice of law in the province of Nova Scotia. On August 4, 1994, Mr. Black sought directions before me in Chambers. After hearing submissions from Mr. Black and counsel for other parties, I set down his application to appeal the August 3, 1994 Order of Associate Chief Justice Palmeter for hearing by a panel of judges of the Court of Appeal. On August 8, 1994, Associate Chief Justice Palmeter ordered, (1) upon the motion of the Trustee, that the application made by NsC Corporation Limited dated December 14, 1992 for removal of Ernst & Young Inc. as Trustee of the Estate of NsC Diesel Power Incorporated, a Bankrupt, be dismissed, and (2) granted the application of ABN Amro Bank to dismiss all applications to annul the Bankrupt being applications of June, 1992, August 7, 1992, September, 1992, December, 1992 and October, 1993. On August 10, 1994, Associate Chief Justice Palmeter granted, (1) approval to Krupp MaK Diesel under s. 38(1) BIA to enable it to take action against Mr. Black for fraud, and (2) dismissed the Inspector's application to challenge the votes of Krupp and the Bank cast at a creditors' meeting in November, 1993. On October 4, 1994, Mr. Black applied to the Court of Appeal in Chambers for an Order to, (1) nullify the Orders of Associate Chief Justice Palmeter dated August 8 and 10, 1994, (2) to change the venue for the balance of the Bankruptcy proceedings to NSCA, and (3) out of pocket costs on the motions. On October 26, 1994, Justice Pugsley, in Chambers (NSCA), heard the application brought by Mr. Black. He (Mr. Black) stated he was not appealing the August 8 and 10, 1994 Orders of Associate Chief Justice Palmeter. Justice Pugsley found that, (1) he had no authority to "nullify" the Orders of Associate Chief Justice Palmeter dated August 8 and 10, 1994, and (2) that these Orders of Associate Chief Justice Palmeter were not proceedings under the August 3, 1994 Order and thereby could not be stayed pursuant to s. 195 BIA, and (3) he denied the motion to change venue on the basis that there was no evidence that Associate Chief Justice Palmeter was biased toward Mr. Black at the time he heard the August 8 and 10, 1994 matters. (C.A. No. 107528) On October 26, 1994, Justice Pugsley also heard two applications brought by Ernst & Young Inc. in its personal capacity and by ABN Amro Bank. The Court granted an Order for security of costs against Mr. Black personally on the appeal of Associate Chief Justice Palmeter's August 3, 1994 Order. (C.A. No. 107528) On November 24, 1994, Mr. Black sought to appeal the October 26, 1994 Orders of Justice Pugsley. This he made by application before me in Chambers (NSCA) pursuant to s. 193(a), (b), (c) BIA. He requested that the decisions appealed from be reversed. I considered it doubtful whether it was possible to appeal an Order of the NSCA in Chambers to a panel of the NSCA under s. 193, and stated in part, ... "the major hurdle confronting the appellant/applicant in this proceeding is whether (a), (b) and (c) of s. 193 have any application at all. The bottom line of this application is to have me reverse and set aside the referenced Orders of Pugsley, J.A. or, possibly, grant leave to have them considered by a panel of the Court of Appeal." In upholding the Orders of Pugsley, J.A., I concluded that on the facts the above sections of s. 193 BIA did not apply and there was no cause for the Court to exercise its discretion to grant leave under s. 193(e) [(1994), 137 N.S.R. (2d) 37]. On November 24, 1994, I also heard two further applications in Chambers brought by Ernst & Young Inc. in its personal capacity and by ABN Amro Bank. I ordered that Mr. Black's appeal from Associate Chief Justice Palmeter's August 3, 1994 Order be dismissed on the grounds that he failed to comply with the Order of Justice Pugsley respecting the posting of security for costs. On March 2, 1995, Mr. Black brought an application in Chambers before Justice Freeman seeking leave to appeal to the Supreme Court of Canada from judgments of the Nova Scotia Supreme Court being the August 3, 1994 Order of Associate Chief Justice Palmeter, and decisions of the Court of Appeal in Chambers being mine of November 24, 1994, or, in the alternative, for leave to have the appeal set down to be heard before "an independent and unbiased panel" of the Court of Appeal. Justice Freeman observed that the first portion of the application could not be supported given that the appeal of the August 3, 1994 Order had been dismissed by this Court. He further denied leave to appeal on the basis that s. 195 BIA made all decisions of the Court on any appeal final and conclusive. He concluded there was no procedure for an appeal to a panel of this Court from a Judge of the Court of Appeal (NSCA) sitting in Chambers [(1995), 140 N.S.R. (2d) 279]. Mr. Black filed a notice of application for leave to appeal the decisions of the Court of Appeal in Chambers (November 24, 1994 and March 2, 1995) to the Supreme Court of Canada. He did not file all the necessary material within the required time period and as a result, he applied for an extension of time for filing. On December 15, 1995, Mr. Justice Major of the Supreme Court of Canada responded to the application for directions from Mr. Black with respect to the style of cause and also his application for an Order extending the time for serving and filing the materials. Mr. Justice Major, for the Supreme Court of Canada, ordered that "the style of cause shall remain as determined by the Registrar and the motion for an extension of time is denied". The style of cause identified Frederick W. L. Black as the Applicant. (S.C.C. File No. 24792). On February 26, 1996, Chief Justice Glube, by letter, responded to Mr. Black's request for the N.S.S.C to vary, rescind or review the August 3, 1994 Order of Associate Chief Justice Palmeter. Chief Justice Glube concluded that the Court had "nothing on which to base such a request" and noted that one and one-half years had passed since the August 3, 1994 Order. On April 11, 1996, Mr. Black brought an ex parte application before Justice Goodfellow (NSSC) pursuant to s. 187(5) BIA for an order to rescind the August 3, 1994 Order of Associate Chief Justice Palmeter. The application was dismissed on the grounds that the August 3, 1994 Order of Associate Chief Justice Palmeter had been in force for two years and the Court refused to exercise its discretion to review and rescind it. (S.H. No. 80055) On April 29, 1996, a notice of appeal from the decision of Justice Goodfellow was filed by Mr. Black and the named creditors of the Estate of NsC Diesel Power Inc. 3. Jurisdiction of the Nova Scotia Court of Appeal (a) Section 187(5) BIA The form of relief sought by Mr. Black on the motion before me on October 10, 1996 is the "review and rescinding" of Associate Chief Justice Palmeter's Orders dated June 20, 1994 and August 3, 8 and 10, 1994. Mr. Black relies in part upon s. 187(5) BIA to request that this Court review and if required rescind the Orders of Associate Chief Justice Palmeter. According to Houlden and Morawetz, pp. 501-502 and General Rules 49, 50 and 51, matters in bankruptcy on appeal are to be dealt with according to the Court's ordinary procedures, except as varied by the Act or the General Rules. Counsel for the Superintendent in Bankruptcy and the Trustee submit the NSCA does not have the jurisdiction to review and rescind the Orders of Associate Chief Justice Palmeter under s. 187(5) BIA. They contend that under s. 187(5), the jurisdiction to review an Order in bankruptcy is vested only in the Court having original jurisdiction in bankruptcy and cannot be exercised by the Court of Appeal. Conversely, a Bankruptcy Judge has no power under 187(5) to review or rescind an Order made by the Court of Appeal. (See Houlden and Morawetz, p. 419) In this instance, the Orders of Associate Chief Justice Palmeter issued in June and August, 1994 were made in his capacity as the Court of original jurisdiction (NSSC) pursuant to s. 183(1) BIA. In my opinion a Chambers Judge of the Court of Appeal does not have the jurisdiction under s. 187(5) to review or rescind the referenced Orders of Associate Chief Justice Palmeter. (b) Sections 183(2) and 193 BIA The jurisdiction of the Court of Appeal in bankruptcy, including a judge in Chambers, is restricted by statute. Pursuant to s. 183(2) BIA, the Nova Scotia Court of Appeal is given the jurisdiction to determine appeals from the courts vested with original jurisdiction. The jurisdiction of this Court is restricted by s. 193 BIA in that the Court must satisfy itself that the matter being appealed comes within one of the categories capable of being appealed as provided by s. 193 BIA. Under s. 193 an appeal lies to the Court in the following cases: (a) if the point at issue involves future rights; (b) if the order or decision is likely to affect other cases of a similar nature in the bankruptcy proceedings; (c) if the property involved in the appeal exceeds in value ten thousand dollars; (d) from the grant of or refusal to grant a discharge if the aggregate unpaid claims of creditors exceed five hundred dollars; ... Subsection (e) of 193 provides for one further and more discretionary provision, namely, "in any other case by leave of a judge of the Court of Appeal." Mr. Black has brought an application to rescind the Orders of Associate Chief Justice Palmeter. As was the case when Mr. Black appeared before this Court on November 24, 1994, "the bottom line of this application is to have the court reverse and set aside the referenced orders of Palmeter, ACJ or, possibly, grant leave to have them considered by a panel of the Court of Appeal." (c) Jurisdiction of an Appeal Court Judge in Chambers in Bankruptcy The General Rules provide that all applications to the Court are to be by motions [R. 12, R. 13, R. 14 BIA]. The court to which reference is made is that of original jurisdiction and not a court of appeal. Applied to these proceedings, Associate Chief Justice Palmeter of NSSC exercised his "original, auxiliary and ancillary jurisdiction" in issuing the referenced Orders. As a judge of the Court of Appeal, it would appear that I can exercise the jurisdiction conferred upon me under s. 183(2); namely, to hear applications for leave to appeal from Orders of courts of first instance. [See NsC Diesel Power Inc. (Bankrupt) (1994), 137 N.S.R. (2d) 37 at 40 (Chambers); see Re: 58494 Ontario Ltd. (1985), 57 C.B.R. (N.S.) 272 (Ont.)] The motions brought by Mr. Black come before me as a judge sitting in Chambers of the Court of Appeal in Bankruptcy. BIA s. 183 and s. 193 provide that bankruptcy matters that come before the Court of Appeal are to be in the form of appeals. General Rule 51 (BIA) provides that if there is nothing in the Act or Rules governing appeals, then the Provincial Rules of Civil Procedure apply. Neither the BIA nor its General Rules specify the composition of the Court when hearing an appeal. Reference to the Civil Procedure Rules indicates that all appeals, whether granted by way of leave or as of right, must be heard by a panel of three judges of the Court of Appeal [CPR 62.23(4)]. The Civil Procedure Rules make a clear distinction between the authority of a judge in Chambers and that of the Court itself. A Chambers Judge is authorized to hear applications that are procedural in nature but do not deal with the substantive merits of the main appeal. The applications which may be brought before a Chambers Judge of the Court of Appeal include an, (1) application to amend a notice of appeal [R. 62.04(4)]; (2) application to set down times for hearing appeals by the Court [R. 62.19]; (3) application for a stay of a judgment pending appeal [R. 62.10]; (4) application for leave to appeal [R. 62.11]; (5) application for an Order for security for costs of appeal [R. 62.13]; (6) application to extend time for hearing appeals [R. 62.14 and R. 62.31(8)(e)], and (7) application to direct the perfection of an appeal [R. 62.17(3)]. See also Future Inns Canada Inc. v. Labour Relations Board, et al., C.A. No. 131106, judgment delivered October 31, 1996, Hallett, J.A. in Chambers. As already indicated, Mr. Black is seeking to have the Orders of Associate Chief Justice Palmeter (June 20, August 3, 8 and 10, 1994) "reviewed and rescinded". In the case of the June 20, 1994 and August 3, 1994 Orders, lifting the stays imposed by those Orders would appear to be one form of relief available to respond to his application. However, I am unable to find a prescribed Rule under the Civil Procedure Rules or those of the BIA that permits a Chambers Judge of the Court of Appeal, on an application, to grant or lift a stay, except where the stay is of an Order pending appeal [CPR 62.10]. The authority of a judge of this Court sitting in Chambers is prescribed by BIA and the Rules of Civil Procedure. I have concluded that such authority is limited to extending the time for filing a notice of appeal [CPR 62.31(8)(e); General Rule 49] and granting leave to appeal the Orders of Associate Chief Justice Palmeter [CPR 62.11; BIA s. 193(e)]. (d) Granting Leave to Appeal Mr. Black must fall within one of the "cases" described in s. 193 (BIA) before the Court of Appeal can deal with his application as an appeal from the Orders issued by Associate Chief Justice Palmeter. In my opinion, subsections (a), (b), (c) and (d) of s. 193 (BIA) do not apply. [See Houlden and Morawetz, p. 432.] As already noted, there is a fifth "case" provided in s. 193(e) and that is the discretion given to me to grant leave "in any other case". General Rule 49(2) requires that where an appeal is brought pursuant to s. 193(e), the notice shall combine the notice of appeal and the application for leave. Mr. Black has filed neither a notice of appeal nor an application for leave to appeal the Orders of Associate Chief Justice Palmeter. General Rule 49(1) requires that notice of an appeal be served within ten days of the Order or decision appealed from. A notice to appeal from Associate Chief Justice Palmeter's orders of June 20, August 3, 8 and 10, 1994 is clearly out of time. However, a judge, sitting in Chambers, of the Court of Appeal has the discretion to extend the time for filing and serving such notice. In such a case the appellant must establish, (1) a bona fide intention, within the time limit to appeal, (2) a reason why the notice of appeal was not filed within the time limit, and (3) that there is an arguable ground of appeal. [See Re Gigault (1979), 32 CBR 190 (Ont. S.C.) [Bankruptcy]. The overriding concern is whether justice requires that an extension of time be given. [See Bratti v. Wabco Standard Trane Inc. (1994), 25 CBR (3d), 1 (Ont. C.A.); see also Hanna v. Maritime Life Assurance Co. (1995) 150 N.S.R. (2d) 34, (NSCA).] In particular, in ABN Bank Canada v. NsC Diesel Power Inc. (1993), 125 N.S.R. (2d) 387 (C.A.), Matthews, J.A. stated at pp. 387-388: [5] The applicant argues that although the five decisions before Justice Roscoe concerned the Bankruptcy and Insolvency Act she applied the test for granting an extension of time for an appeal as set out in Maritime Co-op Services Ltd. and Martin v. Maritime Processing Co., Hogg and Hillcrest Rent-A-Car et al. (1979), 32 N.S.R. (2d) 71; 54 A.P.R. 71 (C.A.), as summarized in Nova Scotia Annotated Rules of Practice (Ehrlich), at p. 308: "The time period for filing a notice of appeal should only be extended where: (1) The appeal has sufficient merit on the basis that it is arguable that the trial judge made a clear error in his perception and evaluation of the evidence; (2) There was a bona fide intention to appeal while the right to appeal existed; (3) A reasonable excuse for the delay in launching the appeal is advanced." [6] A study of the test to be applied in bankruptcy proceedings discloses that it is similar to that expressed in Maritime Co-op particularly in that the applicant must show a bona fide intention to appeal before the expiration date of the appeal period. See Re Gigault (1979), 32 C.B.R.(N.S.) 190 (Ont. S.C.); Re Flair Construction Ltd.; Venables v. Bank of Montreal (1981), 38 C.B.R.(N.S.) 92 (B.C.C.A.), and Hansen (Trustee of) v. Hansen (1988), 71 C.B.R.(N.S.) 79 (B.C.C.A.). Counsel for the respondents argue that Mr. Black is in effect appealing the Orders of Associate Chief Justice Palmeter for a second time. Counsel for Ernst & Young Inc. in its personal capacity submits that the "motion is made in the context of his attempted appeal from the decision of Justice Goodfellow ... it is completely inappropriate to now submit, in the guise of a motion within an appeal, what is in substance an attempt to again appeal from the decision of Associate Chief Justice Palmeter." An examination of the grounds set forth in Mr. Black's notice of motion persuade me that they are in effect grounds of appeal. It cannot be said that the respondents have not received notice. The form of the notice was served on them on July 15, 1996. Mr. Black has furnished the Court with comprehensive legal arguments and documents, sufficient to enable me to exercise my discretion to consider granting Mr. Black leave to appeal on these matters. The notice of motions and the material filed in support, combined with the material filed on behalf of the respondents, provide sufficient detail of the circumstances surrounding the issue of the Orders to permit the matter to proceed as a leave application before a single judge of the Court of Appeal in Chambers. [See s. 193(e) BIA; see also Re 58494 Ontario Ltd. (1985), 57 CBR (NS) 272 (Ont.)] It remains to be determined whether the discretion to grant leave to appeal from these orders should be exercised and on what grounds. Granting leave is within the discretion of the Court and in my view should only be granted if the "Order or decision" appealed from appears to be "contrary to law, amounts to an abuse of judicial power, or involves obvious judicial error, causing prejudice, for which there is no remedy." [See Re Leard (1994), 25 CBR (3d) 210 (Ont. CA) [In Bankruptcy]. In the opinion of counsel for ABN Bank, Ernst & Young Inc. (as Trustee and also in its personal capacity) and Krupp MaK, the issues relating to the June 20, August 3, 8 and 10, 1994 Orders of Associate Chief Justice Palmeter are res judicata. They also raise the same argument on the application to quash the notice of appeal from the decision of Justice Goodfellow. Mr. Black submits that the merits of the Orders issued by Associate Chief Justice Palmeter have not been reviewed by the Court of Appeal. He contends that as such, his application is not barred by the doctrine of res judicata and should be "reviewed and rescinded" by the Court. I have concluded that it is necessary to consider each of the Orders issued by Associate Chief Justice Palmeter separately. (i) The Order of June 20, 1994 On June 20, 1994, Associate Chief Justice Palmeter filed an Order staying the Order of the Registrar of Bankruptcy dated June 17, 1994. The Registrar's Order was issued following an ex parte application made by Mr. Black for an examination of personnel of the Trustee, Ernst & Young Inc., pursuant to s. 163 (BIA). Four of the individuals listed in the June 17 Order are the same as those listed in the present application made by Mr. Black, namely: Matt Harris, Harold Reiter, Peter Cleveland and Ross Landers, all or formerly, of Ernst & Young Inc. The June 20, 1994 Order provided: UPON APPLICATION of the Trustee, Ernst & Young Inc. (the "Trustee") made ex parte; IT IS ORDERED THAT the Order for examination dated June 17, 1994, granted by A. Martin Smith, Q.C., Registrar, be stayed pending further determination by this Honourable Court; IT IS FURTHER ORDERED THAT the Notice of Examination dated June 17, 1994, directed to Harold Reiter, be set aside pending further determination by this Honourable Court. [emphasis added] Both Orders of June 17, 1994 and June 20, 1994 were issued ex parte. Both involve the bankruptcy of NsC Diesel Power Inc. Neither parties received notice of the application of the other. Counsel for ABN Amro Bank indicates that the events surrounding the issue of the June 20, 1994 Order necessitated the ex parte stay because it was a matter of urgency. In his summary, counsel for the Bank states: On June 17, 1994, Mr. Black applied ex parte to the Registrar for an Order for Examinations pursuant to s. 163(2) of the Bankruptcy Act. This Order obtained on a Friday, without notice to counsel, and delivered by facsimile to the office of counsel for the Estate after normal business hours, provided in part, for the discovery of legal counsels, accountants and bank officials as early as Monday, June 20, 1994, in Toronto. Counsel for the Bank contacted the Case Management Justice at his home late on the evening of June 17, 1994, to advise His Lordship of the existence of the Registrar in Bankruptcy's Order. The Case Management Justice directed that counsel for the Estate deliver a copy of the Order to his residence on Saturday, June 18, 1994. On Sunday, June 19, 1994, counsel for Ernst & Young applied on an ex parte basis before Associate Chief Justice Palmeter for an Order staying the notices of examination authorized by the Registrar in Bankruptcy's Order. On June 20, 1994, Associate Chief Justice Palmeter filed an Order staying the Order of the Registrar in Bankruptcy. The events which followed the issue of the June 20, 1994 Order are somewhat blurred as a result of conflicting accounts and an imperfect record. It appears that on June 29, 1994, Mr. Black, on behalf of NsC Diesel Power Inc., advanced a notice of motion in the Supreme Court to rescind the June 20, 1994 Order of the Associate Chief Justice. This was based upon s. 187(5) BIA. On July 13, 1994, Associate Chief Justice Palmeter reconvened the case management process for an inter partes hearing. According to the summary provided by the solicitor for the Bank, it appears that on July 13, 1994, Associate Chief Justice Palmeter considered Mr. Black's request but refused to exercise his discretion pursuant to s. 187(5) BIA to revisit his June 20, 1994 Order which stayed the Order of the Registrar permitting the examination of certain persons. The June 20, 1994 Order plus the August 3, 1994 Order resulted in the dismissal of Mr. Black's application for an Order of Examination and stayed all applications of Mr. Black and named companies until legal counsel was obtained. In his response to the submissions of the respondents, Mr. Black maintains his original position as set forth in his application of June 29, 1994, namely, that Associate Chief Justice Palmeter did not have the jurisdiction to issue the stay and that it has "caused injustice which cannot be remedied except by the recession of the offending order". As authority for his position, Mr. Black relies in part on Bache Halsey Shields v. Charles (1982), 140 DLR (3d) 378 (BCSC). As a judge sitting in Chambers of the Court of Appeal, I am satisfied that I have the discretion to extend the time to file and serve a notice of appeal from the Order of Associate Chief Justice Palmeter dated June 20, 1994. In the circumstances, Mr. Black has satisfied the requirements to justify the exercise of such a discretion. The material indicates that he had a bona fide intention to file an appeal of the June 20, 1994 Order which he in fact did but after appearing in the Chambers of this Court, elected to proceed with an appeal of the August 3, 1994 Order. There is an arguable ground of appeal based on the circumstances which gave rise to the June 20, 1994 Order. Finally, given Mr. Black's inability to obtain an Order for Examination of certain of the Trustee's personnel, it is in the interest of justice that time should be extended for filing and serving a notice of appeal. Such an appeal, if made, should be perfected according to Rule 49 BIA and CPR Rule 62. Mr. Black would be required to file a notice of appeal regarding the June 20, 1994 Order along with the necessary documentation to comply with CPR 62. I am satisfied I have the discretion to grant Mr. Black leave to have the matter heard by the Court of Appeal pursuant to s. 193(e) BIA. By reason of the decisions/Orders of Associate Chief Justice Palmeter on June 20, 1994 and July 13, 1994, coupled with that of August 3, 1994, Mr. Black has not been able to apply to the Court for an Order for Examination of the individuals listed in the Registrar's Order of June 17, 1994. This is especially disturbing given the fact that other interested parties have been able to obtain such Orders in the Supreme Court without difficulty. I am unable to say with certainty that the matter is in fact res judicata. In my opinion, Mr. Black should not be denied leave to appeal the June 20, 1994 Order on that ground. Until such time as the arguments on appeal with respect to that Order are determined, Mr. Black will not be in a position to apply for an Order for Examination of the individuals named in the Registrar's original Order of June 17, 1994. In my opinion, leave to appeal the June 20, 1994 Order should be granted. (ii) The Order of August 3, 1994 Mr. Black alleges that Associate Chief Justice Palmeter's Order of August 3, 1994 was issued "without notice, without evidence, without argument, without service" contrary to certain rules of the Bankruptcy Act and contrary to the principles of natural justice. Counsel for ABN Amro Bank submits that the Order of August 3, 1994 is an "exemplification" to that of Justice Boudreau's Order dated February 13, 1993. He considered that unless Mr. Black retained legal counsel he was not permitted to represent NsC Corporation in proceedings relating to the bankruptcy of NsC Power Diesel Inc. Proceedings commenced by NsC Corporation in bankruptcy were stayed until such time as counsel was engaged. The decision upheld on appeal [(1993), 125 N.S.R. (2d) 223] was based on a concern that Mr. Black would be in a position of conflict should he be acting as counsel for the bankrupt while at the same time being called as a witness in the trial matters. Counsel opposing Mr. Black's application to "rescind" the August 3, 1994 Order have not raised this as an issue in the present proceeding before me. Nor does it appear to have been the basis for the Orders issued by Associate Chief Justice Palmeter which were made to determine "matters relating to the practice and procedure" before the Court. The Order of Associate Chief Justice Palmeter dated August 3, 1996 states: UPON IT APPEARING necessary to determine matters relating to the practice and procedure before this Honourable Court relating to the matter therein. NOW UPON MOTION of the Court. IT IS ORDERED that all applications presently before this Court by the bankrupt NsC Diesel Power Incorporated, NsC Consultants Limited and Nova Scotia Commonwealth (NsC) Consultants Limited, or by Frederick W. L. Black as an officer of any of the said companies, be and the same are hereby stayed until such time as NsC Diesel Power Incorporated, NsC Consultants Limited and Nova Scotia Commonwealth (NsC) Consultants Limited, or Frederick W. L. Black as an officer of any of the said companies, shall be represented by counsel authorized to carry on the practice of law in the Province of Nova Scotia, or until further order of this Court. AND IT IS FURTHER ORDERED that all further applications relating to the Bankruptcy of NsC Diesel Power Incorporated shall be made to the case management Judge of the Court assigned to this matter, rather than to the Registrar in Bankruptcy, until further order of this Court. [emphasis added] On matters having to do, inter alia, with security for costs, an appeal of this Order was dismissed [(1994), 137 N.S.R. (2d) 37 (CA)]. Mr. Black brought an ex parte application pursuant to s. 187(5) BIA before Justice Goodfellow in Chambers (NSSC) seeking an order to rescind the August 3, 1994 Order of Associate Chief Justice Palmeter. The Chambers Judge dismissed the motion principally because of the two year delay in bringing the application. Justice Goodfellow made the following comments: ... the reasons are, one in my view I have no discretion or authority to overrule and rescind an order that was granted almost two years ago by a fellow justice. Secondly, if I have such discretion, the delay in my view is such and the background of this matter is such that it's not an appropriate exercise in discretion almost two years later to resurrect something that ought to have been deal with before. And you have had a run at the Court of Appeal. I'm not a hundred percent certain what transpired there, quite frankly, but my view if I have discretion it would be inappropriate to exercise my discretion with such a long period of delay. So, there, you can take those remarks to the Court of Appeal. (S.H. No. 80055). On April 29, 1996, a notice of appeal was filed by Mr. Black and "Creditors of the Estate" of NsC Diesel Power Incorporated. The notice is signed by Mr. Black and creditors (or inspectors) of the Estate Heather Cruickshanks, Hanson Josey and Gerry Dell. This notice relates to an intended appeal of the decision of Justice Goodfellow referenced above. Counsel for Ernst & Young Inc., in its personal capacity, and for the Superintendent of Bankruptcy submit that the only appealable matter before the Court is the appeal of Justice Goodfellow's decision of April 17, 1996. Counsel for ABN Bank asserts that "to entertain a reconsideration of the August 3, 1994 Order at this time in the manner sought by Mr. Black, would be to permit Mr. Black to 'escape by the back door' the consequences of the previous orders of this Honourable court respecting the posting of security for costs, and the consequences of the failure to comply with such order." In response, counsel for each of the respondents submits that there remains on record a valid and binding Order of this Court dismissing Mr. Black's appeal. They say that the matter having gone forward to the Supreme Court of Canada, where leave to appeal was denied, Mr. Black is precluded from the right to appeal for a second time. Counsel for the respondents have brought an application before me to quash the notice of appeal from the April 17, 1996 decision of Justice Goodfellow. They rely in part upon the doctrine of res judicata and argue that the appeal is frivolous, vexatious and without merit (CPR 62.18). The effect of the Order of August 3, 1994 has impaired Mr. Black's ability to advance his case in the matters relating to the bankruptcy of NsC Diesel Power Inc. Since the stay was issued Mr. Black, as an interested party in the bankruptcy proceedings, has been prevented from participating in the proceedings. This has both directly and indirectly affected his rights as an officer of the bankrupt companies. The difficulties with which he has been confronted are well illustrated by the on-going problems he faces in being precluded from seeking an Order for Examination unless he retains counsel. Section 187(5) BIA provides that an application can be made to the Court of original jurisdiction to review and rescind an Order of that Court. In this instance, Mr. Black availed himself of that provision and applied to Justice Goodfellow to exercise his discretion under s. 187(5) to rescind the August 3, 1994 Order of Associate Chief Justice Palmeter. As noted above, the application was dismissed and Mr. Black filed a notice of appeal from that decision. In the ordinary course an appeal from the decision of Justice Goodfellow, already set in motion, will enable Mr. Black to challenge the August 3, 1994 Order of Associate Chief Justice Palmeter. In my opinion, Mr. Black should be permitted to set down his appeal to a panel of this Court from the decision and Order of Justice Goodfellow. It is my further opinion that that is a more acceptable course of action than granting leave to appeal the August 3, 1994 Order. (iii) The Orders of August 8, 1994 On August 8, 1994, it was ordered in part that the application made by NsC Corporation Limited dated December 14, 1992 for the removal of Ernst & Young Inc. as Trustee of the Estate of NsC Diesel Power Inc., a bankrupt, be dismissed. Counsel for the Trustee, in its personal capacity, submits that Associate Chief Justice Palmeter had given written directions on June 2, 1994 to the effect that "if NsC Diesel Inc. intended to proceed with an application to remove Ernst & Young as Trustee, it was to file a renewed application with supporting affidavits and memorandum no later than July 8, 1994." Mr. Black did not file a renewed application and the Trustee subsequently filed an application to dismiss Mr. Black's original application to have Ernst & Young removed. On August 8, 1994, Associate Chief Justice Palmeter granted the Order and dismissed the earlier application made by Mr. Black. On October 26, 1994, Mr. Black appeared before Justice Pugsley of the Court of Appeal, in Chambers. He indicated that he was not appealing the Orders of August 8, 1996 but rather was bringing a motion to "nullify" and stay the Orders pending the hearing of the appeal of Associate Chief Justice Palmeter's decision of August 3, 1994. Justice Pugsley concluded that the Court did not have jurisdiction to "nullify" the Orders and no further remarks as to the merits of the August 8, 1994 Orders were made. Furthermore, Justice Pugsley was not prepared to exercise his discretion to grant Mr. Black leave to appeal the Orders. On November 24, 1994, I upheld the Order of Justice Pugsley and found that s. 193(e) did not then apply. After considering the record, the arguments and submissions, I am not convinced that Mr. Black has a right of appeal under s. 193 BIA. I find no grounds to justify exercising my discretion to grant leave to appeal from the August 8, 1994 Orders. (iv) The Orders of August 10, 1994 On August 10, 1994, Associate Chief Justice Palmeter granted Orders enabling Krupp MaK Diesel, under s. 38(1) BIA, to commence an action against Mr. Black and by Order dismissed the Inspector's application to challenge the votes of Krupp and the Bank as cast at a creditors' meeting in November, 1993. Mr. Black argues that since the August 10, 1994 Orders have not been considered by this Court, they are not res judicata. Counsel for Krupp MaK, respondent on this motion, submits that the jurisdictional issue surrounding the s. 38 application was already determined by Associate Chief Justice Palmeter by concluding that "an intended Defendant of such an application is not entitled to notice and is not to have the status to contest the validity of the claim or to oppose leave." Counsel for Krupp MaK further submits that Associate Chief Justice Palmeter decided the issue with respect to the vote of the creditors and that this matter has already been dealt with by the Court of Appeal. Counsel refers to the following passage from the transcript of the August 10, 1994 hearing at which Associate Chief Justice Palmeter stated: The second matter relates to Krupp. The Trustee indicates that he accepted Krupp's claim as a liquidated amount; that there was a problem with it. He went to Mr. Macdonald, solicitor for Krupp, to get an explanation. He got an explanation. He was satisfied with the explanation. He accepted that as a liquidated amount. That was his obligation. He was to determine if, in his opinion, it was a liquidated amount. Again, no bad faith. I have no problem in finding that the trustee acted properly, and that Krupp should been allowed to vote at the meeting. So far as the application is concerned, I will deny the application. And confirm the actions of the trustee at the meeting in the December 1993. When Mr. Black appeared before Justice Pugsley on October 26, 1994, he indicated that he was not appealing the Orders of August 8 and 10, 1994, but rather was bringing a motion to "nullify the decisions and any Order flowing therefrom made by Associate Chief Justice Palmeter on August 8 and 10." He further requested a stay of the Orders pending the hearing of the appeal of Associate Chief Justice Palmeter's decision of August 3, 1994. Justice Pugsley concluded that the Court did not have jurisdiction to "nullify" the Orders. In rendering his decision he commented on the August 10, 1994 (s. 38 application). Order issued by Associate Chief Justice Palmeter concerning the s. 38 BIA application and concluded that Mr. Black did not have a right to be given notice or to contest the Order which was sought. Justice Pugsley further concluded that the remaining three applications considered by Associate Chief Justice Palmeter on August 8 and 10, 1994, were not proceedings arising under the August 3, 1994 Order. As such, the Orders were not stayed under s. 195 BIA. On October 9, 1996, Mr. Black appeared before this Court by way of an appeal from an Interlocutory Order of Justice M. MacDonald (NSSC) who dismissed the motion to strike Krupp's statement of claim. In his appeal, Mr. Black made the same argument as advanced before me on October 10, 1996, namely, that Associate Chief Justice Palmeter was without jurisdiction to issue the s. 38 Order because Krupp is not a creditor of NsC Diesel Power Inc. This Court in its judgment delivered October 22, 1996 in C.A. 128144, affirmed the decision of Justice M. MacDonald and in turn affirmed the August 10, 1994 Orders of Associate Chief Justice Palmeter. The August 10, 1994 Orders of Associate Chief Justice Palmeter have been upheld as valid Orders at different times by both the NSSC and the NSCA. The cumulative effect of all this leads me to the conclusion that the merits of the August 10, 1994 Orders have been considered by both NSSC and NSCA. They are res judicata. The applicant has not satisfied me that he has a right of appeal under s. 193 BIA. Mr. Black's motions with respect to the Orders of August 10, 1994 are dismissed. (v) Decision of Justice Goodfellow (N.S.S.C.) - April 11 and 17, 1996 - S.H. No. 80055 A further matter to be considered is whether this Court has the jurisdiction to entertain an appeal from the decision of Justice Goodfellow dated April 17, 1996. His decision was made in his capacity as a Judge of the Nova Scotia Supreme Court and within that Court's original, or auxiliary, or ancillary jurisdiction in bankruptcy pursuant to s. 183(1) BIA. Mr. Black brought an application before Justice Goodfellow under s. 187(5) BIA. The section permits the Court to review and rescind its own Orders. The record reveals that Mr. Black and certain named creditors filed a notice of appeal from the decision of Justice Goodfellow which notice is dated April 29, 1996. To the best of my knowledge no hearing date has yet been set. Mr. Black is required under the General Rules of BIA to establish that an appeal lies to the Court under s. 193 BIA. From all that I have seen, heard and read, I am persuaded that the appellants ought to be given such leave pursuant to s. 193(e) BIA. A hearing date suitable to the Court remains to be settled upon in Chambers of the Appeal Court. 4. Application for Order of Examination, s. 163 BIA On August 15, 1996, Mr. Black made an application in writing to this Court requesting Orders of Examination pursuant to s. 163 BIA. By correspondence, he further clarified that his intention was to apply to this Court "for a proper examination order so that evidence would be available for the deliberation of the Court on the hearings of October 10, 1996." Mr. Black wished to cross-examine certain of the Trustee's personnel in order to have the evidence available to refute the applications brought by the Trustee and the Bank to strike the amended notice of appeal. He was informed by letter on September 6, 1996 that this Court would further consider his application after having heard submissions on all of the applications to come before me in Chambers. Section 163(2) BIA states: On the application of any creditor or other interested person to the court, and on sufficient cause being shown, an order may be made for the examination under oath, before the registrar or other authorized person, of the trustee, the bankrupt, an inspector or a creditor, or any other person named in the order, for the purpose of investigating the administration of the estate of any bankrupt, and the court may further order any person liable to be so examined to produce any books, documents, correspondence or papers in his possession or power relating in all or in part to the bankrupt, the trustee or any creditor, the costs of the examination and investigation to be in the discretion of the court. In his notice of motion, Mr. Black alleges in part that: 2. The Trustee Ernst & Young, assisted by the then solicitors of the Estate, Blake, Cassels & Graydon and Boyne Clarke, originally wished to examine Mr. Purchase and the other parties, but has refused all requests from the Inspectors to do so since an Inspectors' Resolution was passed as the request of the Trustee on February 26, 1992. The trustee Ernst & Young and a solicitor from Blake, Cassels & Graydon, acting in his capacity as solicitor for the estate, did conduct one examination, that being an examination of the files of the Corporation House Limited (CHL)/Benn brothers as the former consultants to NsC Corporation. ... 7. The Trustee and the past and present solicitors of the Estate sought to, and have, suppressed the evidence of the conversion of the assets of the Estate. 8. The applicant Black and the Inspectors of the Estate for the creditors of the Estate have repeatedly sought to complete the examination as directed by resolution of the Inspectors of the Estate dated February 26, 1992. 9. The information believed to be in the knowledge of Messrs. Cleveland, Reiter, Harris and Landers will be of assistance to the creditors of the Estate and its officer in their presentations to the Court on future motions to be heard when the evidence is available to help recover Estate assets for the benefit of the Creditors. Mr. Black filed, in addition to his own affidavit, a number of affidavits including those of the Inspectors dated July 8, 1994 and July 9, 1996. Numerous exhibits have also been put before the Court in support of this application for an Order for Examination. Counsel for the Trustee describes the issues arising in connection with this motion in the following way: "In seeking orders under s. 163 of the BIA, Mr. Black is, in essence, asking the Court to assume original jurisdiction. Section 183(2) of the BIA makes it clear that this Honourable court is a court of appeal. By virtue of s. 183(1)(c), the NSSC is the Court of original jurisdiction. If Mr. Black seeks such an order the appropriate place is in the NSSC ..." On July 11, 1996, Mr. Black along with Inspectors, appeared before Justice Roscoe in Chambers (NSCA) in bankruptcy with an application seeking an Order for Examination under s. 163 BIA of three of the named individuals in the present application before the Court. Justice Roscoe concluded she did not have jurisdiction to hear the matter. Since that time the Inspectors have obtained an Order from the NSSC for the examination of Mr. Purchase of Ernst & Young Inc. Mr. Black, on the other hand, has had to bring an application to this Court to seek the rescission of the June 20, 1994 Order of Associate Chief Justice Palmeter and in the alternative apply to this Court a second time for an Order of Examination. I am satisfied that the Court of Appeal does not have the jurisdiction to issue an Order for Examination under s. 163(2) BIA. Such an Order can only be issued by a Court of original jurisdiction and in the context of these circumstances that means the Nova Scotia Supreme Court. It appears that if Mr. Black is to be able to obtain such an Order, he will have to be successful in his appeal from the Order of Associate Chief Justice Palmeter of June 20, 1994 and that of Justice Goodfellow in order to lift the stays imposed on June 20 and August 3, 1994. The relief which Mr. Black seeks from this Court will not be granted. To repeat, the Court of Appeal lacks the jurisdiction to do so. 5. Cross-Application brought by Mr. Black to remove Trustee and the Solicitors for the Trustee and ABN Amro Bank Mr. Black has requested a variety of Orders including the removal of the Trustee, Ernst & Young Inc,, and a direction to the Official Receiver to appoint an interim trustee. In addition he has applied to have the solicitors for the Trustee and their agent and the solicitors for the Bank and their agent removed. Mr. Black alleges that the solicitors for the Bank breached their fiduciary duty to their former client, the Estate of the Bankrupt, by using confidential documents of the Estate to the benefit of the Bank. He further alleges that the solicitors for the Trustee acted contrary to the provisions of the BIA and the "directions" of the Estate, and that the Trustee has been acting in a conflict of interest since its appointment. Mr. Hill, counsel for the Trustee, in his written submission asserts, in part: ... The application is not in the nature of an appeal. Original jurisdiction for such an application would vest in the Supreme Court. Such an application was previously made two years ago and essentially abandoned by Mr. Black at the time of Justice Palmeter's order requiring he be represented by counsel. As discussed earlier, the jurisdiction of the Court of Appeal in bankruptcy, including the Judge in Chambers, is defined in s. 183(2) BIA. It provides that the Nova Scotia Court of Appeal is vested with the jurisdiction to determine appeals from courts vested with original jurisdiction. Mr. Black's cross-motion has been brought before this Court, not as an appeal, but as a matter to be dealt with as if the Court had original jurisdiction. Since this Court does not have such jurisdiction, it is my opinion that as a Judge of the Court of Appeal, sitting in Chambers (bankruptcy), I do not have the authority to grant the Orders Mr. Black has requested. Accordingly, the relief sought by his motion will be refused. 6. Applications brought by Krupp MaK Maschinenbau GmbH and Krupp MaK Diesel Inc., ABN Amro Bank, and Ernst & Young Inc., in its personal capacity and as Trustee (a) An application to quash the amended notice of appeal from the April 17, 1996 decision of Justice Goodfellow On April 29, 1996, Mr. Black, on his behalf and "Creditors of the Estate" of NsC Diesel Power Incorporated, filed a notice of appeal from the decision of Justice Goodfellow (NSSC) delivered on April 17, 1996. The notice is signed by Mr. Black and creditors/Inspectors Heather Cruickshanks, Hanson Josey and Gerry Dell. Counsel on behalf of the applicant creditors and the Trustee brought applications before me to strike the amended notice of appeal on the grounds that it is frivolous and without merit. They rely upon CPR 14.25 and 63.31. They submit that Justice Goodfellow was correct in refusing to exercise his discretion to review an Order of the Supreme Court that has been upheld by the Court of Appeal and the Supreme Court of Canada. They reason that the appeal is frivolous. They also argue that the notice of appeal should be struck because it is without merit. They contend there was neither any change in circumstances nor any new evidence upon which Justice Goodfellow could rely to exercise his discretion to rescind the August 3, 1994 Order of Associate Chief Justice Palmeter. They contend that s. 187(5) BIA is not an alternative to an appeal. Counsel for the Superintendent of Bankruptcy also made submissions on these issues. The threshold issue is whether a Judge of the Court of Appeal sitting in Chambers has the authority to quash a notice of appeal on the grounds that it is frivolous, vexatious and without merit. A review of the Civil Procedure Rules persuades me that the authority of a Judge of the Court of Appeal sitting in Chambers to deal with applications to quash a notice of appeal is restricted to either hearing applications to set a date for the main application to be heard by the Court [R. 62.18 and R. 62.30(2)] or applications to quash a notice of appeal where the appellant has failed to perfect the appeal [R. 62.11(d) and R. 62.17(1)]. (See Blackburn v. Blackburn (1991), 105 N.S.R. (2d) 348.) However, it is the Court which is authorized by CPR Rule 62.18(1) to hear applications to quash a notice of appeal where the application is based on the ground that the appeal is frivolous, vexatious or without merit. Rule 62.01(d) defines "Court" as the Nova Scotia Court of Appeal. Civil Procedure Rule 62.24(3) provides that matters heard on appeal by the Court shall consist of a Court of three or more judges. Therefore, the Rules distinguish between the authority of the Court to grant an Order to quash a notice of appeal under CPR 62.18 and that of a Judge sitting in Chambers under CPR 62.11(d), which refers to a failure to comply and CPR 62.17, which refers to a failure to perfect. (As I indicated earlier in these reasons, a useful discussion on the jurisdiction of a Judge of the Appeal Court sitting in Chambers is contained in the decision of Hallett, J.A., in Chambers, in Future Inns Canada Inc. v. Labour Relations Board (N.S.) et al., C.A. 131106, judgment delivered October 31, 1996.) As a result of all this, I conclude that my role as a Judge in Chambers is limited to setting down a hearing date for an application to quash the amended notice of appeal so that it may be heard by a panel of Judges in the Court of Appeal. Accordingly, for the record, I must dismiss the application which is before me to quash the amended notice of appeal from the decision of Justice Goodfellow. However, that does not mean the application is at an end. It means that the applicants may, if they wish, apply to a Judge in Chambers in the Court of Appeal for a date to have the application to quash set down for hearing. (b) Injunction and Stay of Proceedings Counsel for Krupp MaK Maschinenbau GmbH and Krupp MaK Diesel Inc. have requested that the proceedings be stayed with respect to the issues in this matter because they contend that they have already been determined during the course of proceedings before the Supreme Court, the Court of Appeal and the Supreme Court of Canada. They also seek an injunction to restrain Mr. Black from instituting further proceedings with respect to all of these issues. In light of the conclusions which I have reached, which are to grant leave to appeal the June 20, 1994 Order of Associate Chief Justice Palmeter and the April 17, 1996 decision of Justice Goodfellow, it is neither necessary nor appropriate for this Court to issue a stay or injunction with respect to those matters. (c) Security for Costs In the event an appeal goes forward, all counsel have requested on behalf of their respective clients Orders against Mr. Black for security of costs. General Rule 49(3) provides that, "Before entering an appeal to the Court of Appeal, the appellant shall deposit in court $100 as security for costs." General Rule 49(4) gives the Court of Appeal authority to increase, decrease or dispense with security for costs. I have concluded that, (i) if an appeal of the Order of Associate Chief Justice Palmeter dated June 20, 1994 is entered, Mr. Black will be required to deposit $500.00 as security for costs, and (ii) if the appeal from the decision of Justice Goodfellow (S.H. No. 80055) is carried forward, the appellant(s) are required to deposit $500.00 as security for costs. (d) Costs in the event of the Cause Counsel for Krupp MaK Maschinenbau GmbH and Krupp MaK Diesel Inc. have requested costs of the application in the amount of $1,000.00 from each of the appellants, in any event of the cause payable forthwith. Counsel for ABN Amro Bank request that solicitor-client costs should be awarded against all of the named applicants jointly and severally based on the conduct of Ms. Cruickshanks, Mr. Dell and Mr. Josey in bringing the notice of appeal as well their past involvement in bringing proceedings along with those of their co-applicant, Mr. Black. Counsel for Ernst & Young Inc. in its personal capacity has requested costs awarded on this application on a solicitor-client basis against Mr. Black personally. Counsel for Ernst & Young Inc. as Trustee has requested costs on the appeal on a solicitor-client basis. Since success on these applications is divided, I am not prepared to order costs either by way of a specific sum or solicitor-client or in the event of the cause, apart from the Order for security for costs noted above under that head. 7. Summary of Conclusions (a) Leave is granted, for which time is extended, to appeal the Order of Associate Chief Justice Palmeter dated June 20, 1994. If an appeal is entered by Mr. Black he will be required to deposit $500.00 as security for costs. (b) Leave is granted to appeal the decision of Justice Goodfellow dated April 17, 1996 being S.H. No. 80055. To carry forward the appeal, the appellant(s) is/are required to deposit $500.00 as security for costs. (c) Leave is refused to appeal the Orders of Associate Chief Justice Palmeter dated August 8, 1994. (d) Leave is refused to appeal the Orders of Associate Chief Justice Palmeter dated August 10, 1994. (e) The application to the Court of Appeal for an Order of Examination pursuant to s. 163 BIA is refused. (f) The cross application to remove the Trustee and the solicitors for the Trustee and the solicitors for ABN Amro Bank is refused. The additional relief sought in the cross application is also refused. (g) The application to quash the amended notice of appeal from the decision of Justice Goodfellow in S.H. No.80055 is dismissed. (h) The application for a stay of proceedings relating to all the issues in this proceeding and an injunction to prohibit Mr. Black from instituting further proceedings is refused. (i) Applications by the respondents for a variety of costs including sums certain, solicitor-client and in the event of the cause are dismissed. (j) Applications made by Mr. Black for all forms of relief other than those granted above are refused. Lorne Clarke C.J.N.S. APPENDIX A Civil Procedure Rules Amendment In July, 1994 the Civil Procedure Rules [Rel.No.30 - 7/94] and forms were amended by : a. deleting the words "Trial Division" and "Trial Division of the Supreme Court" wherever the same shall appear and substituting the words "Supreme Court of Nova Scotia." b. deleting the words "Appeal Division" and " Appeal Division of the Supreme Court of Nova Scotia" and substituting the words "Nova Scotia Court of Appeal." Rule 1: General Definitions 1.05 In these Rules, unless the context otherwise requires, ... (c) "Court of Appeal" means the Nova Scotia Court of Appeal; (d) "application", means an originating or interlocutory application, motion, or petition made, (i) in the Appeal Division, to a judge or the judges of the Appeal Division or to the Appeal Division; (ii) in the Trial Division, to a judge in chambers, or to the court when sitting during a trial or pursuant to an order; (e) "court" means, (i) in the Appeal Division, the court or a judge or the judges thereof, whether sitting in court or in chambers; (ii) in the Trial Division, the court or judge or the judges thereof, whether sitting in court or chambers; and where a prothonotary has power to act, the prothonotary respectively; ... (k) "judge" means a judge sitting in chambers; ... (x) "Rules" or "these Rules" mean the Civil Procedure Rules; Rule 62: Civil Appeals Definitions 62.01 In this Rule unless the context otherwise requires: (a) "appeal" means an appeal to the Court and includes a cross-appeal, an application for leave to appeal (where the application is not required by enactment to be made to a Judge), an application for a new trial or to amend, quash or set aside a judgment appealed from, and any matter reserved, case stated or reference presented to the Court under any enactment or rule; ... (d) "Court" means the Appeal Division; ... (g) "Judge" means a judge of the Appeal Division; ... Applications respecting initiation of appeal 62.11 In addition to any other powers conferred by Rule 62 or otherwise, a Judge may at any time and on such terms as he deems just, on the application of the Registrar or of any party to an appeal, order that ... (c) leave or permission to appeal be granted or refused where by an enactment application for leave or permission to appeal must be made to a Judge before notice of appeal can be given; (d) a notice of appeal be quashed because of failure by the appellant to comply with Rule 62 in respect thereof, provided that seven days' notice has been given to the appellant. Application to quash or dismiss an appeal 62.18 (1) Any party to an appeal may apply in accordance with rule 62.30 to the Court at any time before or at the hearing of the appeal for an order quashing the notice of appeal or dismissing the appeal on the ground that no appeal lies to the Court or that the appeal is frivolous, vexatious or without merit or that the appellant has unduly delayed preparation and perfection of the appeal. (2) The applicant in his notice shall state the reasons supporting the application supported by an affidavit setting forth any relevant facts not set forth in the judgment appealed from. (3) On the application, the Court may deprive an applicant of costs or impose costs on him, if he has unduly delayed an application which should have been made soon after the notice of appeal was filed. Terms and Sessions of the Court 62.24 (3) Three or more Judges, designated from time to time by the Chief Justice, shall sit on each appeal or other matter heard by the Court. Applications to the Court 62.30 (1) An application may be made to the Court under this rule 62.30 in any appeal or other matter where by this or any other rule or by the Supreme Court of Canada Act or any other enactment application may be made by notice, motion, petition or otherwise to the Court. (2) An intended applicant may apply ex parte to a Judge to set a time for the hearing of an application by the Court and to specify the form of notice and who should be served with it. (3) The Applicant shall give seven days' notice (or such other notice as may be prescribed by the Rule or enactment authorizing the application) in the form and on the persons specified by the Judge or the Rule or enactment together with any supporting material and shall at the same time file with the Registrar five copies of the notice and all material so served. Application to a Judge 62.31 (1) A Judge shall have and may exercise any and all power and authority necessary to deal with any application authorized to be made to him by this or any other rule or any enactment. ... (8) A Judge may order that ... (d) the application be referred to the Court for hearing and disposition; (e) any time prescribed by this Rule be extended or abridged before or after the expiration thereof. (9) Costs of any application shall be in the Judge's discretion. Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3 Interpretation s. 2. In this Act ... "court", except in paragraph 178(1)(a) and sections 204.1 to 204.3 and subject to subsection 243(1), means the court having jurisdiction in bankruptcy or a judge thereof, and includes a registrar when exercising the powers of the court conferred on a registrar under this Act; Jurisdiction of Courts s. 183 (1) The following courts are invested with such jurisdiction at law and in equity as will enable them to exercise original, auxiliary and ancillary jurisdiction in bankruptcy and in other proceedings authorized by this Act during their respective terms, as they are now, or may be hereafter, held, and in vacation and in chambers: ... (c) in the Provinces of Nova Scotia and British Columbia, the Supreme Court; ... (2) The courts of appeal throughout Canada, within their respective jurisdictions, are invested with power and jurisdiction at law and in equity, according to their ordinary procedures, except as varied by this Act or the General Rules, to hear and determine appeals from the courts vested with original jurisdiction under this Act. 183(3) Supreme Court of Canada. Authority of the Courts ... s. 187 (5) Every court may review, rescind or vary any order made by it under its bankruptcy jurisdiction. ... (8) The court may direct any issue to be tried or inquiry to be made by any judge or officer of any of the courts of the province, and the decision of that judge or officer is subject to appeal to a judge in bankruptcy, unless the judge is a judge of a superior court when the appeal shall, subject to section 193, be to the Court of Appeal. Appeals s. 193. Unless otherwise expressly provided, an appeal lies to the Court of Appeal from any order or decision of a judge of the court in the following cases: (a) if the point at issue involves future rights; (b) if the order or decision is likely to affect other cases of a similar nature in the bankruptcy proceedings; (c) if the property involved in the appeal exceeds in value ten thousand dollars; (d) from the grant of or refusal to grant a discharge if the aggregate unpaid claims of creditors exceed five hundred dollars; and (e) in any other case by leave of a judge of the Court of Appeal. General Rules 12. (1) Subject to these Rules, every application to the court shall be made by motion unless the court otherwise orders. (2) The Superintendent may intervene in any petition or application to the court by filing notice of his intervention with the court. ... 38. The court may, upon ex parte application by a trustee, order a solicitor to submit his bill to the trustee or bring it into court to be taxed, and upon default by the solicitor the court may upon ex parte application by the trustee order him to distribute the proceeds in his hands without regard to the solicitor's bill. ... 49. (1) No appeal to the Court of Appeal shall be brought unless notice thereof is filed with the registrar and served within 10 days after the day of the order or decision appealed from or within such further time as a judge of the Court of Appeal allows. (2) Where an appeal is brought under paragraph 193(e) of the Act, the notice shall combine notice of appeal and of application for leave to appeal. (3) Before entering an appeal to the Court of Appeal, the appellant shall deposit in court $100 as security for costs. (4) The Court of Appeal may increase, decrease or dispense with security for costs. C.A. No. 127649 NOVA SCOTIA COURT OF APPEAL (In Bankuptcy) IN THE MATTER OF: THE BANKRUPTCY OF NsC DIESEL POWER INCORPORATED BETWEEN: FREDERICK W. L. BLACK ) (in all capacities) ) Applicant/Appellant ) ) - and - ) ) KRUPP MaK MASCHINENBAU ) GmbH & KRUPP MaK DIESEL INC., ) ABN AMRO BANK CANADA, ) ERNST & YOUNG, INC. (Trustee) ) ERNST & YOUNG, INC. (Personal Capacity) ) BEFORE THE SUPERINTENDENT IN BANKRUPTCY ) HONOURABLE ) CHIEF JUSTICE Respondents ) CLARKE, ) IN CHAMBERS ) KRUPP MaK MASCHINENBAU ) GmbH & KRUPP MaK DIESEL INC., ) ABN AMRO BANK CANADA, ) ERNST & YOUNG, INC. (Trustee) ) ERNST & YOUNG, INC. (Personal Capacity) ) SUPERINTENDENT IN BANKRUPTCY ) ) Applicants ) - and - ) ) FREDERICK W. L. BLACK ) (in all capacities) ) ) Respondent ) ) FREDERICK W. L. BLACK ) (in all capacities) ) ) Applicant on Cross-Motion ) - and - ) ) ERNST & YOUNG, INC., (Trustee) ) ABN AMRO BANK ) ) Respondents on Cross-Motion )