DeFilippis (Re)

DeFilippis (Re)

Where conflicting evidence and issues of credibility exist as to whether a bankrupt failed to disclose an interest in property, the appropriate procedural step is a trial of an issue under s.187(8) rather than determination in a summary proceeding; the bankruptcy court's s.41(11) reappointment was set aside and a trial ordered.

Citation
2007 ONCA 153
Parties
Appellant (bankrupt): Giulio DeFilippis; Respondent (trustee): Schwartz, Levitsky, Feldman Inc., Trustee in Bankruptcy of Giulio DeFilippis
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
9 March 2007
Procedural Posture
Bankruptcy Appeal / Appeal From Order of Superior Court (bankruptcy Judge) to Court of Appeal
Outcome
Appeal allowed; decision of the bankruptcy court set aside.
Legal Topics
Reappointment of Trustee Under S.41(11), Failure to Disclose Assets, Trial of Issue Under S.187(8), Prejudice to Non‑party Interest, Summary Proceeding Vs Full Trial
Source Language
English
Bankruptcy and Insolvency Civil Procedure Property Law Appeals Reappointment of Trustee Under S.41(11) Failure to Disclose Assets Trial of Issue Under S.187(8) Prejudice to Non‑party Interest +1 more

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Parties

Giulio DeFilippis

Appellant (bankrupt)

Schwartz, Levitsky, Feldman Inc., Trustee in Bankruptcy of Giulio DeFilippis

Respondent (trustee)

Procedural Posture

Bankruptcy Appeal / Appeal From Order of Superior Court (bankruptcy Judge) to Court of Appeal

Legal Issues

  1. 1 Whether the bankruptcy judge properly made a s.41(11) reappointment of the trustee on summary evidence despite conflicting evidence and credibility issues
  2. 2 Whether the matter should have been referred to a trial of an issue under s.187(8) of the Bankruptcy and Insolvency Act rather than decided in a summary proceeding
  3. 3 Whether the order prejudiced the rights of a non‑party (the bankrupt's spouse) by effectively placing onus on challengers despite an without‑prejudice recital

Ratio Decidendi

Where conflicting evidence and issues of credibility exist as to whether a bankrupt failed to disclose an interest in property, the appropriate procedural step is a trial of an issue under s.187(8) rather than determination in a summary proceeding; the bankruptcy court's s.41(11) reappointment was set aside and a trial ordered.

Court Disposition

Appeal allowed; decision of the bankruptcy court set aside.

Orders

  • Set aside the bankruptcy judge's order reappointing the trustee under s.41(11)
  • Order the trial of an issue pursuant to s.187(8) of the Bankruptcy and Insolvency Act