DELANO KENNY APPELLANT And: MNP LTD. Respondent, 2021 NLSC 13

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION In Bankruptcy and Insolvency Citation : W. D. Kenny Granite Company, Inc. (Re) , 2021 NLSC 13 Date : January 28, 202 1 Docket : 20190122979 In The Matter of the Bankruptcy of W. D. Kenny Granite Company, Inc. And In The Matter of the Bankruptcy and Insolvency Act , R.S.C. 1985, c.

B-3 , as amended (the " BIA ") AND IN THE MATTER OF an Appeal filed by the Appellant pursuant to Section 81(2) of the BIA seeking a determination that the decision of the Respondent pursuant to its Notice of Disallowance of Reclamation of Property Claim dated January 3, 2020, be overturned. Between: DELANO KENNY APPELLANT And: MNP LTD. Respondent Before: Justice Deborah J. Paquette Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: November 30, 2020 Appearances:

Donald K. Powell Appearing on behalf of the Appellant Geoffrey L. Spencer Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; Sran v. Sands & Associates,2010 BCSC 937; Galaxy Sports Inc., Re, 2004 BCCA 284; Hertz v. 1593658 Ontario Inc., 2011 SKQB 379; Scott v. Scott, 2006 BCCA504; 2432176 Nova Scotia Ltd., Re, [1998] N.S.J. No. 355, 1998 CarswellNS 269 (S.C.); 141530 Canada Inc. (Trustee of) v. ConceptPlus Multi Bar C.P.M.B. Inc., [1986] Q.J. No. 1073, 77 C.B.R. (N.S.) 297 (Sup. Ct. (Bank.

Div.)); Frizzell, Re, 2006 BCSC 1785;Barrington & Vokey Ltd., Re, (NS SC), [1996] N.S.J. No. 613, 41 C.B.R. (3d) 300 (S.C.); Yehia, Re, 2012 BCSC1129 STATUTES CONSIDERED: Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D TEXTS CONSIDERED: Lloyd W. Houlden, Geoffrey B. Morawetz & Janis P.

Sarra, The 2019-2020 Annotated Bankruptcy andInsolvency Act (Toronto: Thomas Reuters, 2019) OTHER: Government of Canada, OSB (Office of the Superintendent of Bankruptcy) Temporary Guidance March 25: LIT (LicencedInsolvency Trustee) Flexibility during the COVID-19 Pandemic, online: <https://www.ic.gc.ca/eic/site/bsf-osb.nsf/eng/br04230.html> REASONS FOR JUDGMENT Paquette, J.: INTRODUCTION [1] W. D. Kenny Granite Company, Inc. (“Bankrupt”) was adjudged bankrupt on 18 November 2019.

Four vehicles and a 14 footboat and trailer, all parked on the Bankrupt’s property, were taken into the possession of MNP Ltd. (“trustee”). Soon after, WilliamKenny, the appellant’s son, notified the trustee that the vehicles and boat belonged to his father. [2] On 18 December 2019, the appellant filed a Reclamation of Property form pursuant to subsection 81(1) of the Bankruptcy andInsolvency Act, R.S.C. 1985, c. B-3, (“BIA”) in which he listed: Ford 1964 Thunderbird; Chevrolet 2006 HHRLT; Dodge Dump Truck2011 RAM 3500; Yamaha Wolverine ATV; Lund WC 14 Boat; and Yacht Club Boat Trailer.

The form was signed by the appellant butnot properly witnessed. The Dodge truck was subsequently returned to him by the trustee. [3] William Kenny handled the reclamation process on behalf of his father. In his affidavit filed in these proceedings, he statedthat the trustee told him that the process for reclamation of property was “quite simple” involving filling out a form provided to him bythe trustee.

The appellant states that full particulars of the vehicles, including their manufacturer, model, and year of production were setout and that it was through inadvertence that the Reclamation Form was not duly witnessed. [4] The trustee takes issue with William Kenny’s characterization of their communications respecting the property in dispute,referring to a written log he maintained. He stated that when he told William Kenny that proof of ownership of the vehicles wasnecessary, Mr.

Kenny told him that would be “difficult”: “I believe it was in this meeting that I informed him an example of adequateproof of claim to property would, as an example, be the bill of sale where his father purchased the boat and trailer. I suggested he maybe able to go to the recreation equipment dealer and obtain a copy.” [5] The trustee said that he had several calls with William Kenny regarding the time for submitting the claim and advising him onhow the tender and sale process worked.

The trustee said that he explained that motor vehicle registration is not the only source ofinformation a trustee would seek to establish ownership but would also look to an invoice, bill of sale, insurance schedules, and to thecompany books and records. Following the trustee’s first visit to the premises in May 2019, he said that he made multiple inquiries of

William Kenny to provide the insurance

schedule and only found an expired insurance plan issued in the names of the Bankrupt, the appellant, and William Kenny, which was described by the trustee as “useless for purposes of establishing ownership”. [ 6 ] On 3 January 2020, the trustee sent the appellant a Notice of Disallowance of Reclamation of Property Claim, denying his claim to the vehicles: You have not provided the grounds on which your claim is based. In particular, you have not provided any proof of ownership of the items you are claiming.

And further take notice that if you are dissatisfied with our decision in disallowing your claim in whole, you may appeal to the court within the 15-day period after the day on which this notice is served. [ 7 ] William Kenny stated that he had not been contacted by the trustee in the interim and completed a notice of appeal. [ 8 ] The appellant was unable to file the appeal to this Court within the 15 days set out in the BIA due to a period of extraordinary storm closures impacting the Supreme Court Registry.

William Kenny stated that users were advised that they were not prejudiced by this circumstance because the Supreme Court would not count the days it was closed in the computation of time for filing. The appeal was filed on 27 January 2020. [ 9 ] On 27 November 2020, shortly before the hearing of the appeal, William Kenny filed an affidavit setting out that in late September 2020 he went to the Motor Registration Division for the Province of Newfoundland and Labrador to request confirmation that the appellant was the owner of the vehicles in the possession of the trustee.

He stated he was informed by staff at that time that the documentation would be emailed to him. He explained further: “Later I was advised, that I would have to

schedule an appointment, in order to obtain the requested information.

Finally on November 10, 2020, I was able to meet with an employee who gave me a printout of the documentation confirming ownership of the motor vehicle.” Attached to his affidavit were copies of Province of Newfoundland and Labrador Vehicle Permits for the following vehicles: a 1964 Ford Thunderbird registered in the name of the appellant; a 1992 Yamaha ATV registered in the name of the appellant; a 2011 Dodge truck registered in the name of the appellant; a 2006 Chevrolet HHR registered in the name of the appellant; and a 2018 Easy Haul registered in the name of the appellant. [ 10 ] The trustee opposes the introduction of this fresh evidence on the grounds that the proceedings are a true appeal and not a trial de novo and asks the Court to dismiss the appeal.

STANDARD OF REVIEW [ 11 ] Subsection 81(4) of the BIA provides a statutory right of appeal of the trustee’s decision directly to the Court. In accordance with Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , I will apply the principles of appellate review as explained at paragraphs 36 to 38 of Vavilov :

(2) Statutory Appeal Mechanisms 36 … Where a legislature has provided that parties may appeal from an administrative decision to a court, either as of right or with leave, it has subjected the administrative regime to appellate oversight and indicated that it expects the court to scrutinize such administrative decisions on an appellate basis.

This expressed intention necessarily rebuts the blanket presumption of reasonableness review, which is premised on giving effect to a legislature’s decision to leave certain issues with a body other than a court…. 37 It should therefore be recognized that, where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision. This means that the applicable standard is to be determined with reference to the nature of the question and to this Court’s jurisprudence on appellate standards of review.

Where, for example, a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questions of statutory

interpretation and those concerning the scope of a decision maker’s authority, apply the standard of correctness in accordance with Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 (S.C.C.), at para. 8 . Where the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for questions of mixed fact and law where the legal principle is not readily extricable): see Housen , at paras. 10, 19 and 26-37 .

Of course, should a legislature intend that a different standard of review apply in a statutory appeal, it is always free to make that intention known by prescribing the applicable standard through statute. 38 We acknowledge that giving effect to statutory appeal mechanisms in this way departs from the Court’s recent jurisprudence. However, after careful consideration, we are of the view that this shift is necessary in order to bring coherence and conceptual balance to the standard of review analysis and is justified by a weighing of the values of certainty and correctness: Craig , at para. 27…. ISSUES (

i) Whether the appeal is a true appeal or a trial de novo ; (ii) Whether fresh evidence should be introduced; and (iii) Whether the appeal should be dismissed.

ANALYSIS [ 12 ]

Section 81 of the BIA legislates with respect to property claims by third parties: Persons claiming property in possession of bankrupt 81

(1) Where a person claims any property, or interest therein, in the possession of a bankrupt at the time of the bankruptcy, he shall file with the trustee a proof of claim verified by affidavit giving the grounds on which the claim is based and sufficient particulars to enable the property to be identified. How claim disposed of

(2) The trustee with whom a proof of claim is filed under subsection (1) shall within 15 days after the filing of the claim or within 15 days after the first meeting of creditors, whichever is the later, either admit the claim and deliver possession of the property to the claimant or send notice in the prescribed manner to the claimant that the claim is disputed, with the trustee’s reasons for disputing it, and, unless the claimant appeals the trustee’ decision to the court within 15 days after the sending of the notice of dispute, the claimant is deemed to have abandoned or relinquished all his or her right to or interest in the property to the trustee who may then sell or dispose of the property free of any right, title or interest of the claimant.

Onus on claimant

(3) The onus of establishing a claim to or in property under this

section is on the claimant. Require proof of claim

(4) The trustee may send notice in the prescribed manner to any person to prove his or her claim to or in property under this section, and, unless that person files with the trustee a proof of claim, in the prescribed form, within 15 days after the sending of the notice, the trustee may then, with the leave of the court, sell or dispose of the property free of any right, title or interest of that person. No other proceeding to be instituted

(5) No proceedings shall be instituted to establish a claim to, or to recover any right or interest in, any property in the possession of a bankrupt at the time of the bankruptcy, except as provided in this section. Rights of others not extended

(6) Nothing in this

section shall be construed as extending the rights of any person other than the trustee. (

i) Whether the appeal is a true appeal or a trial de novo [ 13 ] The trustee referred the Court to Sran v. Sands & Associates , 2010 BCSC 937 , in which the British Columbia Supreme Court considered whether the appellant could introduce evidence which was not before the trustee when he denied his property reclamation request. Sran referred to a decision of the British Columbia Court of Appeal in Galaxy Sports Inc., Re , 2004 BCCA 284 , at paragraph 26 : 26 The Court of Appeal in Galaxy Sports Inc., Re , 2004 BCCA 284 (B.C. C.A.), at paras. 40-42 , (2004), 29 B.C.L.R. (4th) 362 (B.C.

C.A.) [ Galaxy Sports ], held that an appeal under s. 135(4) of the BIA is not intended to be a trial de novo but a true appeal. Newbury J.A., at para. 40, referred to authorities from other contexts in which the original decision-maker may be expected to have had many years of experience in the field , leading to expertise that would enter into his or her decision-making, and then said at para. 41: In my opinion, similar considerations apply in this case with respect to the expertise of trustees in bankruptcy. As I have already

mentioned, they can be expected to have considerable experience and expertise in the area of business financing, restructurings andinsolvency. If “fresh evidence” - i.e., evidence not before the trustee or chair at the time of his or her decision -were to be adduced inSupreme Court on appeal as a matter of course, it seems to me that much would be lost in the way of efficiency in the operation of thebankruptcy scheme generally.

Creditors who neglected to file proofs of claim in compliance with the requirements of s. 124 would sufferno practical consequences if, in Farley J.’s phrase, they could expect to “cooper up” their proofs at a later date in court; and the businessnow conducted at creditors’ meetings by trustees (who are generally supervised by inspectors under the BIA) would be largely co-optedto courts of law, with all the attendant expense, delay and formality. [Emphasis in original.] [14] Sran confirmed that an appeal of a trustee’s decision under subsection 81(3) is a true appeal and not intended to be a trial denovo.

The court stated, “… accordingly fresh evidence is only admissible if necessary in the interests of justice, or on some otherprincipled basis” (at paragraph 28). (See also Hertz v. 1593658 Ontario Inc., 2011 SKQB 379, at paragraphs 36 and 37.) [15] I am satisfied that the within appeal is a true appeal, not a trial de novo and that the introduction of fresh evidence is admissibleonly “if necessary in the interests of justice, or on some other principled basis” (Sran, paragraph 28). (ii) Whether fresh evidence should be introduced [16] Sran at paragraph 29 referred to the British Columbia Court of Appeal decision Scott v.

Scott, 2006 BCCA 504, whichdescribed circumstances in which fresh evidence is admissible on an appeal: 29 In Scott v. Scott, 2006 BCCA 504 (B.C. C.A.) at para. 23, (2006), 61 B.C.L.R. (4th) 9 (B.C. C.A.), Ryan J.A. for the Court ofAppeal described the circumstances in which fresh evidence is admissible on an appeal: In order to adduce fresh evidence on appeal, the appellant must meet the test set out in Palmer v. The Queen, (SCC), [1980] 1 S.C.R. 759; Spoor v. Nicholls (2001), 2001 BCCA 426 , 90 B.C.L.R. (3d) 88 (C.A.) at para. 16.

This requiresthe appellant to demonstrate that the evidence was not discoverable by reasonable diligence before the end of the trial; that the evidenceis credible; that it would be practically conclusive of an issue before the court; and that if believed, the evidence could have affected theresult of the trial. [17] The trustee in Sran opposed the introduction of new evidence advancing that he had made the appellant aware that he wasexpected to provide all relevant proof with the claim document, even advising as to the type of evidence which would support his claim.

The court disallowed the fresh evidence because it related to events pre-dating the claim and no explanation was offered as to why itcould not have been provided to the trustee with the initial Reclamation of Property form (at paragraphs 35 and 36). [18] The trustee submits that the appellant’s failure to provide proof of ownership of the vehicles when he submitted hisReclamation Form is fatal to his appeal. He cited 2432176 Nova Scotia Ltd., Re, [1998] N.S.J. No. 355, 1998 CarswellNS 269 (S.C.), inwhich a claimant sought to establish title to a piece of equipment that had been leased to the bankrupt.

The claimant, however, hadwaited five months from notice of the bankruptcy before filing its Reclamation of Property form. By this time, the property had longbeen sold by the trustee. [19] At paragraph 27 of 2432176, the Nova Scotia Supreme Court refers to a decision of the Quebec Superior Court in 141530Canada Inc. (Trustee of) v. Concept Plus Multi Bar C.P.M.B. Inc., [1986] Q.J. No. 1073, 77 C.B.R. (N.S.) 297 (Sup. Ct. (Bank. Div.)),where a claimant never filed a proof of claim as required by

section 81 of the BIA. The court stated that “procedure should be a concernsubsidiary to the rights of the parties, and that it is particularly true in bankruptcy matters. Section 157(9) [now

section 187] of the Actprovides that a procedural defect or irregularity does not invalidate a proceeding unless it causes a substantial injustice.” [20] On the facts in 2432176, the court, however, was satisfied that a substantial injustice would occur if the property was returnedto the claimant because the trustee had already disposed of it on the reasonable assumption that the claimant had abandoned its claim(paragraph 28): “Such an approach is justified where no other party is adversely [affected].

It is not justified here.” [21] Frizzell, Re, 2006 BCSC 1785, also dismissed an appeal from a trustee’s denial of a reclamation request where a claimant neverfiled a proof of claim to the vehicle, instead “ignoring” advice that he do so and then proceeded to take an action against the trustee inprovincial court which lacked jurisdiction. The evidence disclosed that the appellant “took no steps until the Trustee brought thisapplication” (at paragraph 31). At paragraph 33 the court noted: “Mr. Shimoyama has yet to file a proof of claim (property) despitebeing aware of his obligation to do so.

He only sought to have his interest in the Vehicle recognized when the Trustee brought thisapplication to sell the Vehicle.” [22] Claims were similarly disallowed by the Nova Scotia Supreme Court in Barrington & Vokey Ltd., Re, (NSSC), [1996] N.S.J. No. 613, 41 C.B.R. (3d) 300 (S.C.), where two claimants also failed to file proofs of claim despite being sent a noticeby the trustee to do so.

Two other claimants filed notices of appeal from the trustee’s disallowance of their claims but never pursuedthem. [23] I do not consider that the appellant disregarded advice by the trustee as he had been left with the understanding that theprocess was “simple”.

It was not until after the commencement of these proceedings that the appellant retained legal counsel. [24] Not only was the filing of his notice of appeal initially delayed by the severe winter storm closures, his ability to substantiatehis ownership to the vehicles, in advancing his appeal, was thereafter impacted by the closure of public offices, notably the MotorRegistration office and certain private sector establishments due to the COVID-19 pandemic. Counsel for the appellant brought to the

Court’s attention the federal directive: OSB (Office of the Superintendent of Bankruptcy) Temporary Guidance March 25: LIT (Licenced Insolvency Trustee) Flexibility during the COVID-19 Pandemic (“OSB Temporary Guidance”): … LIT (Licenced Insolvency Trustee)s are encouraged to exercise their professional judgment in using as much flexibility as possible to avoid unintended harm or prejudice in the current circumstances.

Section 187 of the Bankruptcy and Insolvency Act ( BIA ) could be considered as appropriate (in particular subsections 187(9) , (11) and (12) with the caveat that some sections of the BIA …, such as subsection 50.4(10) , may override this provision). LIT (Licenced Insolvency Trustee)s are expected to document their policies, procedures and rationales during this period.

The OSB (Office of the Superintendent of Bankruptcy)’s approach to compliance will also be flexible and practical in light of the situation. [ 25 ] Counsel for the trustee asserted in argument that the motor registration forms provided by the appellant should be rejected because the date on the forms indicated that they had been recently “generated.” He submitted that the word “generated” as used in the documents would only establish that a registration was made on that date and that the motor vehicle registry does not address ownership as would a land titles registry.

Counsel submitted that the trustee had already explained what was required i.e., a document which established when title was obtained such as an invoice. No evidence was provided to the Court to establish these facts as advanced in legal argument or otherwise discredit the provenance of the motor registration documents bearing the appellant’s name. [ 26 ] The trustee’s dismay with receiving the documentation so close to the hearing date is understandable. Nonetheless, the trustee did not request either an adjournment to validate these records or seek to cross-examine the appellant with respect thereto.

Nor was there an allegation of a fraudulent conveyance. It was the trustee’s stated position that the appeal hearing proceed. He expressed concern that the Court would create an unfortunate precedent for the work of insolvency trustees if the appellant was permitted to introduce proof of ownership months after the statutory timelines. [ 27 ] These proceedings raise unique circumstances. The exceptionally severe winter storm with concomitant office closures, followed by the COVID-19 pandemic negatively impacted upon access to public offices.

Indeed, such was the impact upon the carriage of bankruptcies, that the Government of Canada issued a national directive as early as 25 March 2020 (OSB Temporary Guidance) advising insolvency trustees to exercise “their professional judgment in using as much flexibility as possible to avoid unintended harm or prejudice in the current circumstances”. The directive addressed the appropriateness of considering section 187(9) of the BIA which states:

(9) No proceeding in bankruptcy shall be invalidated by any formal defect or by any irregularity, unless the court before which an objection is made to the proceeding is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by any order of that court. [ 28 ] The trustee did not offer any evidence of prejudice to another individual in the belated receipt of the motor registration documents.

The appellant had acted with reasonable dispatch in submitting his reclamation form and thereafter filing his notice of appeal, unlike the claimants referred to in the case law above. I consider evidence as to the registered owner of a vehicle to be credible and pertinent to a determination of a vehicle’s ownership. [ 29 ] I am satisfied that they be entered as fresh evidence in this appeal. (iii) Whether the appeal should be dismissed [ 30 ] The trustee’s disallowance was set aside in Hertz . In Lloyd W. Houlden, Geoffrey B. Morawetz & Janis P.

Sarra, The 2019- 2020 Annotated Bankruptcy and Insolvency Act (Toronto: Thomas Reuters, 2019), the learned authors comment as follows on the Hertz decision at F§181(7): Where the matter in issue is a property claim, … the process and governing provisions are found in s. 81 of the BIA . Schwann J. concluded that the initial interaction between the claimant and the trustee evidenced a general state of confusion about appropriate forms, supporting material and general processes, and the confusion persisted with regard to the applicable appeal period.

Schwann J. was satisfied that it was an appropriate case to extend the time to appeal; … After reviewing the arguments, Schwann J. concluded that the trustee had committed errors of law and was unreasonable in its assessment of the facts and the disallowance was set aside. [ 31 ] The trustee provided no indication of appropriate proof of ownership in his terse denial of the appellant’s claim.

In Hertz , at paragraph 18 , the trustee informed the claimant as to what was needed: “We are writing to advise you that we have reviewed the claim and our first inclination was to simply disallow it because, in all material respects, it does not fulfill the requirements of the Bankruptcy and Insolvency Act .” The trustee then proceeds to explain his requirements and agrees to extend the time for the claimant to supply the information: “I am prepared to extend the time for filing a new property claim to January 15, 2011.

I believe this to be fair.” [ 32 ] The trustee in Hertz , at paragraph 20 , ultimately dismissed the claim but provided the claimant with his reasons in some detail as illustrated by the following: 20. …

(1) The Trustee can not [sic] possibly accept invoices from your supplier, KAL TIRE, which are all dated February 25, 2010 as an "up to date inventory from Kal Tire" as a

schedule "B" in support of a property claim. They are nearly a year old and number of tires claimed greatly exceed those in possession of the trustee.

…

(4) Mr. Hertz has now filed a Proof of Claim in the Bushey bankruptcy proceedings. He claims to be owed money by Bushey, as well as to have a claim to property on [sic] possession of the trustee. The miscellaneous invoice provided by Mr. Hertz, all being a year old, do not help identify or value the property. [ 33 ] The court in Hertz ultimately concluded that the trustee made errors of law in his assessment of set-off claims and was unreasonable in his assessment of the facts and set aside his disallowance.

The court ordered the return to the claimant of certain property and afforded the claimant the opportunity to prove his ownership of other items on the Bankrupt’s premises. [ 34 ] In Yehia, Re , 2012 BCSC 1129 , at paragraph 21 , the trustee also ensures that the claimant understood the documentary requirements for the proof of claim: 21 … The Trustee advised the Creditor in November 2011 that he required additional information about her Proof of Claim and did not issued the Notice disallowing it until March 14, 2012.

There is no suggestion that the Appellant was unaware of the requirement to present all available evidence with her Proof of Claim. Nor is there a suggestion that she was not given adequate or appropriate opportunity to properly provide to the Trustee all of the evidence available to her in support of her claim, including that contained in the Bankrupt’s and Mr. Anderson’s affidavits. [ 35 ] William Kenny deposed that he understood the process to recover the vehicles to be simple and no doubt relayed this to his father and did not present further data with his proof of claim form.

The trustee had been unable to uncover evidence from the company’s books that the Bankrupt owned any of the vehicles or boat and trailer. If the status of registered owner under the registry system in this province was not an acceptable indicator of vehicle ownership under the BIA , the trustee should have explained this to the appellant. Likewise, if the trustee was insisting on an invoice of purchase, such a strict requirement was not set out in his denial of claim. It would have been reasonable for the trustee to have extended the time for filing a new property claim once he clarified his expectations.

I conclude that the trustee’s actions constituted an overriding and palpable error in his handling of the appellant’s claim. [ 36 ] The appellant asks that he be entitled to provide the trustee the additional motor registration information confirming his ownership of the vehicles specified. For the reasons stated above the appeal is granted. CONCLUSION [ 37 ] The appeal is allowed. [ 38 ] The appellant is entitled to file the registered vehicle ownership information with the trustee in order to reclaim the property specified therein.

Any property not so identified may be disposed of by the trustee. [ 39 ] The appellant shall have his costs on the basis of Column 3 of the Scale of Costs pursuant to Rule 55 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D . _____________________________ Deborah J. Paquette Justice