2003 BCSC 435, 2003 BCSC 435

IN THE SUPREME COURT OF BRITISH COLUMBIA IN BANKRUPTCY Citation: Bankruptcy of Abrahamson Estate et al., 2003 BCSC 435 Date: 20030324 Docket: 180912/VA-98 Registry: Vancouver In the Matter of the Bankruptcies of the Estates of Aaron Edward Abrahamson and Others Before: The Honourable Mr. Justice Harvey (In Chambers) Reasons for Judgment Counsel for the Trustee: W. Roberts K.A. Robertson Counsel for the Superintendent of Bankruptcy – Department of Justice: R. Leong C. Wolfe Date and Place of Hearing: January 23 & 24, and March 19, 2003 Vancouver, B.C.

BACKGROUND [ 1 ] The Trustee in bankruptcy ("the Trustee") obtained an order of the Registrar of the Supreme Court of British Columbia on October 17, 2000, whereby the post-bankruptcy and subsequent year income tax refunds and Goods and Service Tax credits of certain bankrupts are to be received by and vested in the Trustee for the benefit of the creditors. The order applies to 129 separate estates in bankruptcy under consideration. [ 2 ] On March 30, 2001, the Office of the Superintendent of Bankruptcy ("OSB") filed a notice of appeal in relation to an appeal of the order.

To date, the hearing of the appeal has not taken place. [ 3 ] The relief sought on behalf of the Trustee is that the appeal be dismissed for: (

a) the failure to apply for directions; (

b) want of prosecution. [ 4 ] Apart from what was described in the course of submissions as the question of jurisdiction, related to the granting of the original order, the issue for determination is whether in the circumstances existing, there has been on the part of the OSB, inexcusable, inordinate delay in the advancement of the appeal such as to warrant the striking of the appeal. [ 5 ] There were originally 129 separate estates in bankruptcy. At the time of the application before the learned Registrar, made on an ex parte basis, there were some 16 of the said estates in which there were absolute discharges, including the Trustee having been

discharged. [ 6 ] While it has given me concern, in my view the failure on the part of the Trustee to disclose the facts related to the 16 estates does not end the matter. [ 7 ] It is common ground there has been delay in advancement of the appeal. The time from the filing of the notice of appeal has been now in excess of twenty three months. [ 8 ] The test for dismissal for want of prosecution is set out in the British Columbia Supreme Court decision of Kern v. Watson (1997), 1997 CanLII 1854 (BC SC) , 32 B.C.L.R. (3d) 398 at 399-400.

The test is that there must be inexcusable, inordinate delay that causes or is likely to cause serious prejudice to the applicant, in order for a matter to be dismissed. DELAY [ 9 ] The relevant circumstances related to delay are reviewed in the respective arguments of counsel. I will not review them at length here. I consider it sufficient to say: (

a) Following the filing of the notice of appeal, it was necessary to review the files of the OSB concerning the 129 bankruptcy estates. The review encompassed considering Detailed Trial Balances, Statements of Receipts, and Disbursements for the estates, documentation coming from the Trustee. The Trustee, in due course, provided most of these documents but not all by June, 2001. (

b) In mid 2001, discussions took place between counsel representing the parties to attempt to resolve OSB concerns, including which of the estates that should not be subject to the proceeding. (

c) This concern necessitated a review of the files of the estates, which was time consuming and hampered internally by other commitments within the office of the OSB. (

d) When the review was completed in April, 2002, it was submitted for final review and approval. (

e) A possible conflict of interest issue then arose, further delaying advancement of the appeal. (

f) When the conflict of interest issue was resolved, a detailed review (analysis) was provided to counsel for the Trustee. This review was 139 pages in length. (

g) There were further exchanges between counsel related to advancement of the matter and analysis resulting in the preparation of a Secondary Review, which in itself necessitated another review of each of the OSB's files. [ 10 ] These factors are not reviewed in the sense of being exhaustive of the other difficulties which existed in the advancement of the matter. [ 11 ] The question arises: Has there been delay here which can properly be called inordinate and as such to cause or to likely cause serious prejudice to the applicant? [ 12 ] What amounts to inordinate delay will depend upon the particular facts and circumstances of each case.

Further, mere elapsed time is not determinative of this issue. [ 13 ] In my view, having regard to the facts and circumstances here, some of which I have reviewed supra , I cannot say the delay which has occurred is inordinate. Further, the evidence falls far short in my view of showing delay likely to cause serious prejudice to the applicant. [ 14 ] In keeping with the conclusion I have reached related to delay, it is not necessary for me to address the other issue raised for consideration described earlier as that of jurisdiction. [ 15 ] The application is dismissed with costs. “R.B.

Harvey, J.” The Honourable Mr. Justice R.B. Harvey