Appeal Court Allows Superintendent of Bankruptcy’s Intervention‏


Change the 407 Act supporters, this cause can really use your support right now. Please go to the Premier’s website and vote this policy idea up. If you have any positive suggestions, please post them there. This could go a long way to nipping this issue in the butt once and for all. Here’s the link http://commonground.ideascale.com/a/dtd/Change-the-407-Act!/13642-25935 Thank-you so much for sharing this and helping decision makers pay attention to this.

 

Change the 407Act!  Please sign & share the petition  http://www.change.org/petitions/premier-kathlynn-wynne-glen-murray-tracy-maccharles-change-the-407act In May I wrote about the Moore vrs. 407ETR Bankruptcy case, whereby the Superintendent of Bankruptcy was seeking to intervene in Justice Francis Newbould’s ruling to protect the National interest in the Bankruptcy Insolvency Act.  407ETR’s lawyers made submissions to squash the Superintendent of Bankruptcy’s motion to intervene.  On May 16th, 2012 the Appeal Court judges, Paul Rouleau, KM Weiler and RA Blair heard submissions and on September 5th, 2012 agreed with the Superintendent’s submission to appeal.

Issues raised & Court’s Findings
1) Does the Superintendant have standing to appeal the order of the motion judge as of right? Judges decision was that the Superintendant had no standing to bring an appeal as of right.
2) If the Superintendent does not have standing as of right:
(a) Can the Superintendent appeal the motion judge’s decision with leave of the court? Yes and some of the reasons are;
i) If the point at issue involves future rights;
ii) If the order or decision is likely to affect other cases of a similar nature in the bankruptcy proceedings;
In “exceptional circumstances” the Superintendent’s intervention is cruicial “to ensure that the integrity of the insolvency process is maintained … where matters of public policy are concerned” intervention is required to maintain the integrity of the bankruptcy and insolvency system and in the Appeal Court Judges view, the following factors provided them a helpful guide to determine “exceptional circumstances”;
(i) that its interest was not represented;
(ii) that it has an interest which will be adversely affected by the decision;
(iii) that it is, or can be, bound by the order;
(iv) that it has a reasonably arguable case; and
(v) that the interests of justice in avoiding a multiplicity of proceedings would be served.
(b) Should an extension of time for serving and filing a notice of motion requesting leave to appeal be granted? Yes and some of the reasons are;
(i) whether the person formed an intention to appeal within the relevant period;
(ii) the length of delay and the explanation for the delay;
(iii) merits of the appeal; and
(iv) whether the justice of the case requires it.
The Appeal Court Judges felt there was good reason to grant the extension sought by the Superintendent as there was no indication of prejudice to 407ETR because they knew the Superintendent was appealing and since 407ETR & Moore settled their dispute, timing doesn’t delay receipt of funds. The Superintendent’s interest can be adversely affected in that this decision could create a new class of debts and has affected at least 6,000 people.
(c) Should leave to appeal be granted? Yes and some of the reasons are;
(i) the issues raised aren’t without merit and are significant to the bankruptcy practice;
(ii) the Superintendent has demonstrated that this is an exceptional case;
(iii) the Superintendent was deprived of the opportunity to exercise its discretionary power to intervene in the Superior Court proceeding because it never received notice of the setting aside of the registrar’s order;
(iv) the Superintendent’s interests went unrepresented and the integrity of the bankruptcy and insolvency system was adversley affected;
(v) the Superintendent has an arguable case that the motin judge’s decision is the product of a misapprehension of the bankruptcy and insolvency system.

This is good news. It’s about time action is taken to reign in the authority 407ETR wields with impunity.  We can help too.  Please help us by signing and sharing this petition to reign them in once and for all https://campaign.to/StopThe407EtrsAbuseOfPower/petition/13/

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