Prescott (Trustee of) (Re)

Prescott (Trustee of) (Re)

An order under s.35(2) BIA may be granted to permit a trustee to receive and open incoming mail if narrowly tailored to target financial correspondence (banks, brokers, credit card institutions), limited in duration, protective of doubtful or potentially privileged items, and subject to return of mail and liberty to reapply; such measures balance trustee interests in asset recovery with privacy and privilege concerns.

Citation
2001 BCCA 544
Parties
Appellant/trustee: PricewaterhouseCoopers; Bankrupt: Lorraine W. Prescott; Bankrupt: Victor M. Prescott
Court
British Columbia Court of Appeal
Jurisdiction
Canada
Judgment Date
14 September 2001
Procedural Posture
Bankruptcy and Insolvency / Appeal From Chambers Judge (court of Appeal)
Outcome
Appeal allowed; order granted on terms set by Newbury J.A.
Legal Topics
Mail Interception, Trustee Powers Under S.35(2) BIA, Court Inherent Jurisdiction, Privacy and Privilege
Source Language
English
Bankruptcy and Insolvency Civil Procedure Privacy Mail Interception Trustee Powers Under S.35(2) BIA Court Inherent Jurisdiction Privacy and Privilege

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Parties

PricewaterhouseCoopers

Appellant/trustee

Lorraine W. Prescott

Bankrupt

Victor M. Prescott

Bankrupt

Procedural Posture

Bankruptcy and Insolvency / Appeal From Chambers Judge (court of Appeal)

Legal Issues

  1. 1 Whether a trustee may be authorized to redirect and open a bankrupt's mail under s.35(2) of the Bankruptcy and Insolvency Act and the court's inherent jurisdiction
  2. 2 Whether such an order can be fashioned to protect privacy and privileged communications
  3. 3 Appropriate scope and duration of any ex parte order

Ratio Decidendi

An order under s.35(2) BIA may be granted to permit a trustee to receive and open incoming mail if narrowly tailored to target financial correspondence (banks, brokers, credit card institutions), limited in duration, protective of doubtful or potentially privileged items, and subject to return of mail and liberty to reapply; such measures balance trustee interests in asset recovery with privacy and privilege concerns.

Court Disposition

Appeal allowed; order granted on terms set by Newbury J.A.

Orders

  • Order under s.35(2) BIA for a period of three months permitting the trustee to open only envelopes addressed to the Prescotts that clearly appear to come from banks, investment firms or brokers and credit card institutions
  • Trustee not to open any item if in doubt as to whether it qualifies