Canada Case Law

McEwen (Re)

Court

Court of Appeal for Ontario

The court held Traders lacked standing to challenge the s.38 order because it abandoned allegations (misrepresentation/non-disclosure) that could bring it within the narrow exceptions to the general rule denying defendants standing; because the trustee had consented to the s.38 order and there was evidence the Carrolls were creditors, the motion judge did not err and the appeal must be dismissed.

Source excerpt

• Section 38 bia assignments
• Standing to challenge s.38 order
• Bad faith insurer liability
• Trustee assignment of causes of action
• S.187(5) review

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Tasci (Re)

Court

Supreme Court of British Columbia

The court dismissed an application to set aside a s. 38 Bankruptcy and Insolvency Act order authorizing a creditor to commence proceedings in the bankrupt’s name.

• S.38 bia leave to commence proceedings
• Standing to challenge s.38 order
• Hearsay in interlocutory affidavits
• Lawyer swearing and speaking to own affidavit
• Short leave/ex parte procedure
• Fraudulent preference and fraudulent transfer claims

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Culp v. KPMG et al.

Court

Supreme Court of British Columbia

The court dismissed KPMG’s application to rescind a s.38 BIA order, held the identified defects were curable, and found the conflict issues did not justify rescission.

• S.38 bia applications
• S.187(5) and s.187(9) bia
• Standing to challenge s.38 order
• Conflict of interest of counsel
• Rescission of orders
• Security for costs

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Black v. Krupp MaK Maschinenbau GmbH

Court

Nova Scotia Court of Appeal

The s.38 Order remained a valid order of the court and could not be collaterally attacked in the case management proceeding; the case management judge correctly declined to entertain a factual attack on the prior s.38 determination, rejected allegations of bias and failure to consider evidence, and denied admission of fresh evidence as irrelevant to the issues properly before the court.

Source excerpt

• S.38 bankruptcy and insolvency act
• Standing to challenge s.38 order
• Collateral attack doctrine
• Striking pleadings (rule 14.25)
• Reasonable apprehension of bias
• Admission of fresh evidence

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