2003 ABQB 276, 2003 ABQB 276

Re Bohn (Bankrupt), 2003 ABQB 276 Date: 2003 03 24 Action No. BK03 96163 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF EDMONTON IN THE MATTER OF THE BANKRUPTCY OF JEFFREY DALE BOHN AKA JEFF BOHN _______________________________________________________ MEMORANDUM OF DECISION of W. J. QUINN , Registrar in Bankruptcy _______________________________________________________ APPEARANCES: Ms. Jessie A. Davies Duncan & Craig LLP for Bank of Nova Scotia James R. Vaage, Esq. Witten LLP for Jeffrey Dale Bohn Norma Donnelly A.C. Waring & Associates Ltd. Trustee of Jeffrey Dale Bohn

[ 1 ] This is an application by the Bank of Nova Scotia for a declaration that the bankrupt, Jeffrey Bohn has obtained $9,000.00 from the Bank by fraud, and that the amount shall survive the discharge of the bankrupt. [ 2 ] The fraud alleged by the Bank is that a cheque for $30,500.00 drawn by Western Union Insurance Company in favour of Ford Credit Canada Ltd. and Jeffrey Bohn, had been ripped by Bohn to make it appear the cheque was payable to him alone.

A photocopy of the cheque is Exhibit “ A ” to the affidavit of Angie Farion, an employee of the Bank of Nova Scotia. [ 3 ] It is alleged that Bohn deposited the cheque to his own account at the Bank of Nova Scotia, and obtained bank drafts totalling $9,000.00 payable to himself. [ 4 ] These matters are deposed to by Angie Farion, an employee of the Bank of Nova Scotia, sworn on February 20, 2003 in support of the Bank ’ s application for a declaration that Bohn has obtained $9,000.00 from the Bank by fraud. [ 5 ] Bohn has deposed in his affidavit of February 28, 2003 that he did not deliberately rip or alter the cheque in question in these proceedings. [ 6 ] In paragraph 7 of his affidavit he deposes that when he received the cheque he put it into the pocket of his jeans and that when he took it out it ripped slightly, and that anyone looking at it could easily see Ford Credit named as a payee.

He deposes he put tape on the back of the cheque to prevent the rip from becoming larger, and that he did not at any time try to conceal Ford Credit ’ s name on the cheque. [ 7 ] In paragraph 6 of his affidavit he deposes he gave the cheque to the teller at the Bank of Nova Scotia to deposit to his account and it was deposited.

He further deposes he did not know the Bank should have refused to deposit the cheque because it lacked the endorsement of Ford Credit. [ 8 ] In paragraph 12 he deposes it was not his intention to defraud the Bank and that he never tried to do so. [ 9 ] Bohn was not cross-examined on his affidavit and I accept what he has deposed to as being the truth. [ 10 ] Having regard to the facts and circumstances mentioned above, I am not prepared to make a declaration that Bohn obtained $9,000.00 from the Bank of Nova Scotia by fraud. [ 11 ] If the truth of the matter is that he did obtain $9,000.00 by fraud, an action against him for such fraud would survive his discharge from bankruptcy.

HEARD on the 5 th day of March, 2003. DATED at Edmonton, Alberta this 24 th day of March, 2003.

__________________________ W. J. QUINN Registrar in Bankruptcy