Weiss v Sterling Realty (Alberta) Ltd. (Sterling Real Estate), 2013 ABQB 551

Court of Queen ’ s Bench of Alberta Citation: Weiss v Sterling Realty (Alberta) Ltd. (Sterling Real Estate), 2013 ABQB 551 Date: 20131220 Docket: 1203 04084 Registry: Edmonton In the Matter of the Bankruptcy of Ronan Kamdar, And in the Matter of the Bankruptcy and Insolvency Act , R.S.C. 1985, c. B-3 Between: Dan Weiss Plaintiff - and - Sterling Realty (Alberta) Ltd., carrying on business as Sterling Real Estate, and CBRE Limited Defendants _ ________________________________________ ______________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _________________________________________ ______________

Summary [ 1 ] Weiss obtained a default judgment against Sterling Realty (Alberta) Ltd. Sterling’s application to the Master to set aside the default judgment was denied.

Sterling now appeals the Master’s decision on two grounds: inconsistencies in two Master’s decisions relating to the Weiss claim affected Sterling’s intention to appeal the Master’s dismissal order; and, the Weiss claim is an abuse of process because this civil claim attempts to accomplish what was not achieved in the bankruptcy action. [ 2 ] The appeal is denied. [ 3 ] The applicant has failed to meet the standards set by our Court of Appeal in Morin for extending the time to appeal a judgment.

In particular, it has failed to show that a bona fide intention to appeal was entertained while the right to appeal existed. Moreover, in the circumstances here, Weiss has suffered what appears to be irreparable prejudice by discontinuing proceedings against

CBRE as a result of having obtained judgment against Sterling. Finally, Sterling has failed to establish that it would have a reasonablechance of success if allowed to prosecute the appeal. Nor, looking at the situation in its entirety, is this one where the ends of justicerequire relief from the application of the Rules; rather this is one of those unfortunate situations where a person with notice of anassignment has ignored it and paid someone other than the assignee, thereby exposing itself to the obligation to pay twice.

Cases and authority cited [4] By the Applicant, Sterling Realty (Alberta) Ltd.: Cairns v Cairns (1931) (AB CA), 3 WWR 335 (SCAB - Appellate Division); Kehler v Walters, 2003 ABCA 160; Loughlin v Murdoch, 2007 ABQB 76; Hebert v Canada, 2004 ABCA36; Bahcheli v Yorkton Securities Inc., 2012 ABCA 166; Don Reid Upholstery Ltd. v Patrie, [1995] AJ No. 761; Royal Bank ofCanada v Morin, [1977] AJ No. 452; Lloyd (Re), [1995] AJ No. 6. [5] By Mr.

Weiss: Cairns v Cairns, (AB CA), [1931] AJ No. 76; Semeniuk v Semeniuk, [2005] AJ No. 73,2005 ABQB 48; Felker v Felker, [2007] AJ No. 152, 2007 ABCA 55; Dan Reid Upholstery Ltd. v Patrie, [1995] AJ No. 761; Edward vFerris, [2001] AJ No. 1667, 2001 ABQB 1125; Romic v Macdonald, (BC SC), [1981] BCJ No. 1753, 29 BCLR 273;Brar v Sahota, (BC CA), [1998] BCJ No. 2507, 115 BCAC 8. [6] By the court: Krys v Brown 2008 ABCA 123; MJR Capital Inc. v Naidoo [2006] O.J. No. 5358; Bitz, Szemenyei,Ferguson & MacKenzie v Cami Automotive Inc. (ON SC), [1997] O.J. No. 2463 1. Background

a) Factual [7] The following chronology can be discerned from the materials referred to in the application: - April 30, 2010: Kamdar, a real estate agent employed by Sterling Realty, irrevocably assigns, in writing, his full buyer agent’scommission – approximately $45,000.00 - on the sale of a property on 27 Avenue in Edmonton to Weiss, a real estate agent employed byRe/Max River City, who was also employed as a buyer’s agent in this transaction. The assignment is signed by Kamdar, Weiss, 1481706Alberta Ltd. and Sterling Real Estate; the signatures are all witnessed. No seals are attached to the assignment.

The assignment isaddressed to CBRE, a real estate firm acting for the vendor of the property. (No information is provided on the application about thenumbered company which signed the assignment; one assumes that the numbered company might be connected with either Re/MaxRiver City or Mr. Weiss.) - May 19, 2010: Weiss issues a cheque in the amount of $5,100.00 to Sterling Real Estate.

The cheque indicates that it is “RKamdar money owed to Sterling in exchange for commission re the property on 27 Avenue.” It appears, therefore, that Weiss paidSterling a debt owed to Sterling by Kamdar and that this payment constituted consideration for the assignment. - May 20, 2010: Sterling writes to CBRE to confirm that it has been compensated in full for the work of its agent Kamdar inrelation to the sale of the 27 Avenue property and that it will not be receiving any commissions payable to Kamdar. - June 10, 2010: Kamdar assigns himself into bankruptcy.

He does not disclose the April 30, 2010 $45,000.00 assignment to hisbankruptcy Trustee, Fox Miles & Associates Inc. - June 15, 2010: the sale of the 27 Avenue property closes. - Some unspecified date after June 15, 2010: Despite having purportedly received both a copy of the April 30, 2010 assignmentand the May 20, 2010 letter, CBRE pays Sterling Realty $45,000.00, approximately, as Kamdar/Sterling’s commission on the sale of 27Avenue. - July 8, 2010: Kamdar’s relationship with Sterling Realty is terminated for cause by Sterling. - July 13, 2010: Kamdar’s bankruptcy Trustee writes to Sterling Realty, refers to a letter previously sent to Sterling by the Trusteeon June 10 to which was attached the Trustee’s appointment, stating: “We understand that (sic) you there is a commission due and payable to Ronan Kamdar in the approximate amount of $45,000.00, plusGST.

You have requested a specific letter indicating that the commission; (sic) as it was due and payable after the date of bankruptcy; (sic)should be paid to Ronan Kamdar directly and not to my office.

Pursuant to Section 70(1) of the Bankruptcy and Insolvency Act, any funds due to the bankrupt after the date of bankruptcy shall be paiddirectly to the bankrupt. - July 14, 2010: Despite having received the letter of July 13, 2010 from the Trustee, Sterling sends to Trustee approximately$37,000.00, being Kamdar’s commission on the sale of the 27 Avenue property less an amount which Sterling maintains is an unpaiddebt owed to it by Kamdar. - July 15, 2010: Kamdar seeks payment to himself from his Trustee of commissions that had been paid to the Trustee by SterlingRealty. - July 21, 2010: On an application for advice and directions, Trustee obtains a without notice order from the Master, to return$30,000.00 to Kamdar.

The order refers to s. 68 of the BIA, and retains, from the $37,000.00 received from Sterling, $7,000.00 as“payment of excess income”. The order itself states simply that the Trustee should return $30,000.00 to Kamdar”as income pursuant toSection 68” and that the $7,000.00 be retained as described. There is reference in the order to Kamdar’s affidavit when he went into

bankruptcy. There may have been an oral reference to the fact that, as of that date, Weiss had not registered his assignment in the Personal Property Registry. If the Master gave lengthier oral reasons for his decision, those have not been transcribed. Shortly after obtaining this order, the Trustee in fact returns $30,000.00 to Kamdar. - October 8, 2010: Weiss files a proof of claim in the Kamdar bankruptcy.

A copy of Weiss’s claim is copied to Sterling and to CBRE. - October 19, 2010: Trustee disallows Weiss’ claim, relying on sub-section 68.1(1) and (2) of the BIA - November 2, 2010: Weiss files an originating application to appeal the Trustee’s disallowance.

That motion is adjourned sine die and is never put before the court, although it is adjourned by consent from time to time. - November 17, 2011: Zip Equity, one of Kamdar’s creditors, brings an application to have its debt survive the bankruptcy; that application is allowed on December 1, 2011. - January 12, 2012: Trustee gives notice of application for Kamdar’s discharge, to be heard on March 27, 2012. - March 8, 2012: Zip Equity files notice of intended opposition to Kamdar’s discharge. - March 13, 2012: Weiss issues a Statement of Claim against Sterling and CBRE to recover the $45,000.00 that was assigned. - Some unspecified date after March 13, 2012: CBRE defends the claim. - April 7, 2012: Sterling is noted in default. - May 24, 2012: Registrar grants conditional discharge to Kamdar. - August 27, 2012: Weiss obtains a default judgment against Sterling. - Some unspecified date after August 27, 2012, Weiss obtains amount of judgment from Sterling by way of garnishment and then Weiss releases CBRE. - September 17, 2012: Registrar grants Kamdar an absolute discharge. - December 20, 2012: Sterling applies for order setting aside default judgment.

Master, who is also a Registrar in Bankruptcy and the same Master who issued the order of July 21, 2010, denies application stating: He may be honest but I do not think he is very bright. I am sorry [Sterling’s then lawyer], I think your client is dead in the water. Both on procedure on the cavalier approach he took to this statement of claim and on the substantive law about what rights the assignee and an assignment has.

Sorry, application dismissed. - January 16, 2013: the lawyer who represented Sterling on the December 20, 2012 application files a notice of withdrawal. - January 21, 2013: a new lawyer comes on the record for Sterling. - January 22, 2013: Servus Credit Union pays into court a garnishee summons on Sterling Realty in the amount of $49,670.42, including costs. - March 13, 2013: Clerk pays to Weiss the net garnished sum of $49,670.42. - March 25, 2013: Weiss applies for without notice order allowing him to file the December 20, 2012 order of the Master, despite 3 months having passed. - March 26, 2013: dismissal order served on Sterling’s new lawyer, i.e. not same lawyer who represented Sterling on December 20, 2012 application.

That lawyer then ceases to act. - April 26, 2013: Sterling retains yet another new counsel, who is counsel on this application. - July 4, 2013: Sterling’s new counsel files the current application.

b) Legislative [ 8 ] For ease of reference, the sections of the BIA referred to in the chronology are set out below. Although this is a lengthy extract, and although each of the subsections of each of the sections is not directly pertinent to the issues before the court, the entire extract from the legislation may be of assistance in determining the legislation’s purposive effect. Directives re surplus income 68.

(1) The Superintendent shall, by directive, establish in respect of the provinces or one or more bankruptcy districts or parts of bankruptcy districts, the standards for determining the surplus income of an individual bankrupt and the amount that a bankrupt who has surplus income is required to pay to the estate of the bankrupt.

Definitions

(2) The following

definitions apply in this section.

“surplus income” means the portion of a bankrupt individual’s total income that exceeds that which is necessary to enable the bankrupt individual to maintain a reasonable standard of living, having regard to the applicable standards established under subsection (1). “total income ” (

a) includes, despite paragraphs 67(1)(

b) and (b.3), a bankrupt’s revenues of whatever nature or from whatever source that are earned or received by the bankrupt between the date of the bankruptcy and the date of the bankrupt’s discharge , including those received as damages for wrongful dismissal, received as a pay equity settlement or received under

an Act of Parliament, or of the legislature of a province, that relates to workers’ compensation; but (

b) does not include any amounts received by the bankrupt between the date of the bankruptcy and the date of the bankrupt’s discharge, as a gift, a legacy or an inheritance or as any other windfall. Determination of trustee re surplus income

(3) The trustee shall, having regard to the applicable standards and to the personal and family situation of the bankrupt, determine whether the bankrupt has surplus income. The determination must also be made (

a) whenever the trustee becomes aware of a material change in the bankrupt’s financial situation; and (

b) whenever the trustee is required to prepare a report referred to in subsection 170(1). Duties of trustee relating to determination

(4) Whenever the trustee is required to determine whether the bankrupt has surplus income, the trustee shall (

a) if the trustee determines that there is surplus income, (

i) fix, having regard to the applicable standards, the amount that the bankrupt is required to pay to the estate of the bankrupt, (ii) inform, in the prescribed manner, the official receiver, and every creditor who has requested such information, of the amount fixed under subparagraph (i), and (iii) take reasonable measures to ensure that the bankrupt complies with the requirement to pay; and (

b) if the trustee determines that there is no surplus income, inform, in the prescribed manner, the official receiver, and every creditor who has requested such information, of that determination. Official receiver recommendation

(5) If the official receiver determines that the amount required to be paid by the bankrupt is substantially not in accordance with the applicable standards, the official receiver shall recommend to the trustee and to the bankrupt an amount required to be paid that the official receiver determines is in accordance with the applicable standards. Trustee may fix another amount

(5.1) On receipt of the official receiver’s recommendation, the trustee may fix, having regard to the applicable standards, another amount as the amount that the bankrupt is required to pay to the estate of the bankrupt, and if the trustee does so, the trustee shall (

a) inform the official receiver and every creditor, in the prescribed manner, of the amount fixed under this subsection; and (

b) take reasonable measures to ensure that the bankrupt complies with the requirement to pay. Trustee may request mediation

(6) If the trustee and the bankrupt are not in agreement with the amount that the bankrupt is required to pay under subsection (4) or (5.1), the trustee shall, without delay, in the prescribed form, send to the official receiver a request that the matter be determined by mediation and send a copy of the request to the bankrupt. Creditor may request mediation

(7) On a creditor’s request made within 30 days after the day on which the trustee informed the creditor of the amount fixed under subsection (4) or (5.1), the trustee shall, within five days after the day on which the 30-day period ends, send to the official receiver a request, in the prescribed form, that the matter of the amount that the bankrupt is required to pay be determined by mediation and send a copy of the request to the bankrupt and the creditor. Mediation procedure

(8) A mediation shall be in accordance with prescribed procedures. File

(9) Documents contained in a file on the mediation of a matter under this

section form part of the records referred to in subsection 11.1(2). Application to court to fix amount

(10) The trustee may, in any of the following circumstances — and shall apply if requested to do so by the official receiver in the circumstances referred to in paragraph (a) — apply to the court to fix, by order, in accordance with the applicable standards, and having regard to the personal and family situation of the bankrupt, the amount that the bankrupt is required to pay to the estate of the bankrupt: (

a) if the trustee has not implemented a recommendation made by the official receiver under subsection (5); (

b) if the matter submitted to mediation has not been resolved by the mediation; or (

c) if the bankrupt has failed to comply with the requirement to pay as determined under this section. Fixing fair and reasonable remuneration in the case of related persons

(11) The court may fix an amount that is fair and reasonable (

a) as salary, wages or other remuneration for the services being performed by a bankrupt for a person employing the bankrupt, or (

b) as payment for or commission in respect of any services being performed by a bankrupt for a person, where the person is related to the bankrupt, and the court may, by order, determine the part of the salary, wages or other remuneration, or the part of the payment or commission, that shall be paid to the trustee on the basis of the amount so fixed by the court, unless it appears to the court that the services have been performed for the benefit of the bankrupt and are not of any substantial benefit to the person for whom they were performed. Modification of order

(12) On the application of any interested person, the court may, at any time, amend an order made under this

section to take into account material changes that have occurred in the financial situation of the bankrupt. Default by other person

(13) An order of the court made under this

section may be served on a person from whom the bankrupt is entitled to receive money and, in such case, (

a) the order binds the person to pay to the estate of the bankrupt the amount fixed by the order; and (

b) if the person fails to comply with the terms of the order, the court may, on the application of the trustee, order the person to pay the trustee the amount of money that the estate of the bankrupt would have received had the person complied with the terms of the order. Application is a proceeding

(14) For the purposes of

section 38, an application referred to in subsection (10) is deemed to be a proceeding for the benefit of the estate. Property included for enforcement purposes

(15) For the purpose of this section, a requirement that a bankrupt pay an amount to the estate is enforceable against the bankrupt’s total income. When obligation to pay ceases

(16) If an opposition to the automatic discharge of a bankrupt individual who is required to pay an amount to the estate is filed, the bankrupt’s obligation under this

section ceases on the day on which the bankrupt would have been automatically discharged had the opposition not been filed, but nothing in this subsection precludes the court from determining that the bankrupt is required to pay to the estate an amount that the court considers appropriate. (Emphasis added) Assignment of wages 68.1

(1) An assignment of existing or future wages made by a debtor before the debtor became bankrupt is of no effect in respect of wages earned after the bankruptcy. Assignment of book debts

(2) An assignment of existing or future amounts receivable as payment for or commission or professional fees in respect of services rendered by a debtor who is an individual before the debtor became bankrupt is of no effect in respect of such amounts earned or generated after the bankruptcy . (Emphasis added)

Precedence of bankruptcy orders and assignments 70.

(1) Every bankruptcy order and every assignment made under this Act takes precedence over all judicial or other attachments,garnishments, certificates having the effect of judgments, judgments, certificates of judgment, legal hypothecs of judgment creditors,executions or other process against the property of a bankrupt, except those that have been completely executed by payment to thecreditor or the creditor’s representative, and except the rights of a secured creditor. 2.

Test for extending the time to appeal a judgment [9] The parties are essentially agreed, and I agree with them, that the test for extending the time to appeal a judgment was set byour Court of Appeal in Morin. Moreover, in Krys our Court of Appeal has recently provided some additional clarification around theinterpretation of the Morin test: 6 The test for extending the time to appeal requires that the applicant show: 1. A bone fide intention to appeal while the right to appeal existed; 2. An explanation for the delay in filing, in conjunction with an absence of serious prejudice to the other side; 3.

That the appellant has not taken the benefits of a judgment in her favour; and 4. A reasonable chance of success. . . . 7 In special circumstances, the court can relieve against strict compliance with one or more of the criteria: Hebert v. Canada, [2004]A.J. No. 65, 2004 ABCA 36 at paras. 8-9, leave to appeal to S.C.C. ref'd [2004] S.C.C.A. No. 109, citing Royal Bank of Canada v.Morin (1977), 1977 ALTASCAD 209 , 6 A.R. 341 (C.A.) and Seth v. Walters, [2003] A.J.

No. 617, 2003 ABCA 160.However, failing to meet the fourth criterion suggests that the extension of time should not be granted, as it is not in the interests ofjustice to extend time for a hopeless appeal: Stoddard v Montague, 2006 ABCA 109, 412 A.R. 88 at para. 21. (Emphasis added) [10] I also accept that the case law emphasizes, time and again, that over and above any listing of factors which may assist indetermining whether leave should be granted to extend the time to appeal, courts have an obligation to ignore such formalism as requiredby the Rules of Court in order to achieve the ends of justice in a particular case. 3.

Application of the Morin test to the circumstances here [11] I have concluded that, not only has Sterling failed to comply with the Rules, it has failed to comply with the case lawestablishing the circumstances in which relief will be granted from compliance with the Rules, and it does not present a situation inwhich justice requires that the requested leave be granted.

a) Has Sterling established a bona fide intention to appeal while the right to appeal existed? [12] Sterling has not established a bona fide intention to appeal while the right to appeal existed. [13] In coming to that conclusion, I take into account the following: - Technically, pursuant to the provisions of Rule 6.14(2), Sterling had 10 days from the date on which the order was filed to fileand serve a notice of appeal of the Master’s decision of December 20, 2012. Since Sterling was served with that order on March 26,2013, it had until approximately April 6, 2013 to file and serve an appeal.

Not only did Sterling not file a notice of appeal within the timeset out by the Rule, it did not even hire a new lawyer until 30 days had elapsed from the date of the Master’s decision. There is noevidence before the court of any intention to appeal during that period of time.

Nor am I of the view that an intention to appeal can beinferred from the mere fact that Sterling hired a new lawyer: hiring a new lawyer is at least as consistent with needing to understand thebasis and the impact of the Master’s decision as with having a bona fide intention to appeal that decision. - Indeed, in my view it is appropriate to take into account the fact that Sterling knew, from December 20, 2012, that the Masterhad denied its application to set aside the default judgment and that it apparently took no steps to deal with that order.

In that context, noinformation concerning the departure of Sterling’s lawyer on January 16, 2013 has been put before the court. The court is aware thatthere are lawyers who take the position that, even when they have appeared on an application, if they subsequently cease to act for aclient, they are not required to settle the terms of the order. Nor does there appear to be a consensus within the profession with respect tothe use of Rule 9.2 when the lawyer for the losing party is proposing to withdraw after having appeared on an application.

Theseproblems may explain some of the delay which occurred between December 20, 2012 and March 25, 2013, the day on which theDecember 20 order was filed. In any event, however, what is clear is that Sterling was aware of the Master’s decision from December20, 2012; in those circumstances, insistence upon compliance with the otherwise tight time limit in Rule 6.14(2) is justified. - Moreover, it is appropriate to notice in this case that Weiss obtained a

summary judgment not days prior to the application ofDecember 20, 2012, but on August 27, 2012. This part of the chronology can also be taken into account in deciding whether Sterlingshould be held to the tight timeline in Rule 6.14; none of what was done in the situation here was done quickly. Sterling had relativelylong periods during which it was at liberty to consider what action it should take.

- Finally, the court is entitled to take into account that Sterling is a business. A lay person might conceivably be given some latitude in complying with Rules because of lack of familiarity with the justice system and lack of information about legal procedures. Sterling must presumably have used the services of a lawyer at some point, even if just to set up its business and to interpret the various contracts which were its regular method of doing business.

Sterling’s failure to deploy the resources which can be assumed to be at its beck and call is an important issue here. [ 14 ] With respect, this is not a case like Morin . In that case, there was specific evidence with respect to the views of solicitors as revealed in correspondence; there is nothing comparable here. [ 15 ] Nor is this a situation in which Sterling’s plea that it considered the Trustee to be “perfect” and that somehow, even though the Trustee is not mentioned in the Statement of Claim that the Trustee would be taking care of things on Sterling’s behalf.

It would have been reasonable for a business to get legal advice when it was sued. [ 16 ] Finally, although Sterling states on this application that, during the whole of the period between March 13, 2012 and April 26, 2013 it suffered from a travesty of representation, that plea cannot be weighed since there is no evidence on this application of what Sterling told the two lawyers who represented it prior to the representation which it has received on the current application.

b) Has Sterling provided an adequate explanation for the delay in filing? Has the delay caused any serious prejudice to the other side? [ 17 ] For the same reasons as set out above in connection with the issue of intention to appeal, I have concluded that Sterling has not provided an adequate explanation for its delay in filing an appeal of the Master’s December 20, 2012 decision. [ 18 ] Nor am I satisfied that the delay in appealing the decision has been without prejudice to the other side.

In coming to that conclusion, the only important factor, which is, however, decisive, is that, after Weiss obtained default judgment against Sterling, Weiss released CBRE from the litigation. Sterling did not address the issue of this change of litigation status. I am not aware of any way in which CBRE could be brought back into the litigation at this stage of the proceedings. [ 19 ] I accept, for the purposes of this application, that Sterling has not taken the benefit of a judgment in its favour. I then go on to the 4 th criterion referred to in Krys :

c) Has Sterling established that it has a reasonable chance of success if allowed to continue with the appeal? [ 20 ] I have concluded that Sterling has not, in any event, established that it has a reasonable chance of success if allowed to continue with the appeal. [ 21 ] In coming to that conclusion, I have taken the following into account: - The sad reality is that someone who receives notice of an assignment, even of an equitable assignment much less an assignment which, as the one here, appears to comply with the formal requirements for an assignment, and ignores it by paying someone other than the assignee is liable to pay twice: MJR Capital Inc. , Bitz, Szemenyei, Ferguson & MacKenzie .

Nor is this a situation where the personal property security registry comes into play because Sterling was not only aware of the assignment but in fact participated in the assignment. - There is no obvious contradiction between the Master’s decision of July 13, 2010 and the same Master’s decision of December 20, 2012. The BIA focusses on bankruptcy issues: when it speaks of assignment in s. 68.1(2), it is obviously speaking of assignment in relation to bankruptcy.

Bankruptcy legislation merely provides that income earned between the date of the bankruptcy and the date of discharge is available to the bankrupt except as such income is characterized as “surplus income”. Surplus income becomes available to the bankrupt’s creditors. However, within the post-bankruptcy income pool which remains available to the bankrupt, normal law presumably applies, including the law relating to assignment. Here, the income earned after the bankruptcy – a minimum total of $30,000.00 – was not affected by the bankruptcy.

As to that income, normal law presumably applies and therefore, the assignment of April 30, 2010 applied, and a minimum of $30,000.00 should have gone from Kamdar to Weiss. Sterling was in no better position that Kamdar since it had participated in Kamdar’s assignment to Weiss.

In other words, it is not obvious that if Sterling were allowed to continue its appeal that it would eventually be successful in establishing that it did not owe Weiss at least $30,000.00. - It may be that, if the appeal were allowed to continue, Weiss would be found to be entitled only to that portion of the post- bankruptcy income which was not surplus income. In other words, it seems entirely likely that, as between Weiss’ claim on the assignment and the Trustee’s claim on behalf of the creditors, the Trustee’s claim for $7,000.00 would have priority.

Unfortunately, it is not possible on these materials to discern whether an amount greater than $7,000.00 would have been characterized by the Trustee as “surplus income” if the whole of the $45,000.00 had been transferred by Sterling to the Trustee instead of the $37,000.00 that was effectively transferred, and there was no argument on that point.

However, even if Weiss would have been limited on appeal to the amount which was not characterized as surplus income so that his judgment against Sterling would have been reduced by that amount, this court also takes into account the fact that Sterling has already, and without explanation, removed approximately $8,000.00 from Kamdar’s total post-bankruptcy income.

Indeed, on the evidence on this application, as of May 20, 2010, Sterling was not alleging any debt owed to it by Kamdar; on the contrary, it was not expecting to receive any commission whatsoever from CBRE in relation to Kamdar’s work in achieving the sale of the subject property. To the extent that Kamdar owed Sterling anything, the $5,100.00 paid by Weiss to Sterling appears to have been designed to make Sterling whole. - Indeed, it may be appropriate to describe Sterling as the author of its own misfortune. When it had written instructions to pay Kamdar, it didn’t follow those instructions.

As of July 21, 2010, the Trustee had no notice of Weiss’ claim; yet Sterling knew of the assignment of April 20, 2010 and its own letter to CBRE of May 19, 2010; Sterling apparently did not share with the Trustee the information concerning the assignment. [ 22 ] In

summary, taking into account Sterling’s failure to establish that it had the requisite intention to appeal at the requisite time,

its failure to provide a satisfactory explanation for its delay in filing its appeal and its failure to establish that Weiss would not be prejudiced by granting leave to appeal, Sterling’s ability to establish that it may have some chance of success on one relatively small part of its appeal does not, in the circumstances here, lead to the conclusion that Sterling should be relieved of its failure to comply with the deadline established by the Rules of Court for filing an appeal.

In other words, this is not a situation in which the ends of justice cry out in favour of granting a right to appeal despite the failure of compliance with the requirements for appeal. 4. Costs [ 23 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 20 th day of September, 2013. Dated at the City of Edmonton, Alberta this 19 th day of December, 2013 . J.B. Veit J.C.Q.B.A. Appearances: Douglas H. Shell, Q.C., Davis LLP for the Defendant (Applicant) Sterling Realty (Alberta) Ltd. Barry M. King, Strathcona Law Group for the Mr.

Weiss Raymond Steen, Witten LLP for the Trustee in Bankruptcy of Ronan Kamdar Sam Attia, Attia Reeves Tensfeld Snow for Mr. Kamdar