Kent v. Watts, 2013 ABQB 123

Court of Queen ’ s Bench of Alberta Citation: Kent v. Watts, 2013 ABQB 123 Date: 20130222 Docket: 1101 17336 Registry: Calgary Between: David Kent, David Kent carrying on business as D & D Management, Duane Kent, 979901 Alberta Ltd., and 804618 Alberta Ltd.

Plaintiffs - and - Glenn Watts, Anthony Watts, Lee Wickenheiser, 973632 Alberta Ltd., 973632 Alberta Ltd. operating as Canadian Achievers Financial, 963989 Alberta Ltd., 963989 Alberta Ltd. operating as Canadian Achievers Financial, 1251748 Alberta Ltd., 1251748 Alberta Ltd. operating as Canadian Achievers Financial, and the Registrar of Land Titles Defendants _______________________________________________________ Endorsement of the Honourable Madam Justice J.B. Veit _______________________________________________________

[1] Mr. Watts, a bankrupt, wishes to cross-examine the affiant on whose affidavit one of Mr. Watts’ creditors relies to apply fora lifting of the stay of legal proceedings against the bankrupt. Although Mr. Watts’ trustee was not originally given notice of thisapplication, Mr. Watts has since obtained the consent of the trustee to his application; he has also obtained the creditor’s consent to hisapplication. The only issue to be decided, therefore, is whether these consents are effective. [2] In concluding that the consents are effective, and that I should grant Mr.

Watt’s request, I endorse the approach taken bythe Ontario court in Likins v Francis (1995) (ON SC), 33 C.B.R. (3d) 259: the court’s rules of practice allow anyparty adverse in interest to question any person who has sworn an affidavit to be used in support of an application before the court. [3] In Alberta, the equivalent rule to the one mentioned in Likins is R. 6.7. It is noteworthy that Rule 6.7(

b) requires that anyperson who chooses to question an affiant must file a transcript of the questioning. The cost of providing such a transcript may be one ofthe reasons why the issue of the standing of a bankrupt to cross-examine the affiant on an application, pursuant to s. 69.4 of the BIA, tolift a stay appears only to have been explored in the Likins decision. It may be, of course, that another reason for the paucity of such caselaw is the vulnerability in costs of any such questioner given the nature of the factors which a court may consider in determining whethera stay should be lifted.

In the latter context, it appears from the case law that the financial ability of the bankrupt to defend proceedingsis one example of a factor which a judge would not consider in determining whether a stay should be lifted. Heard on the 20th day of February, 2013. Dated at the City of Calgary, Alberta this 22nd day of February, 2013. J.B. Veit J.C.Q.B.A. Appearances: Glen Watts, on his own behalf Matthew X. James, Machida Shewchuk James for the Plaintiffs No appearance for The Trustee