2012 QCCA 2189, 2012 QCCA 2189

Canada (Attorney General) c. Koch 2012 QCCA 2189 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022802-128 (760-11-005085-119) MINUTES OF THE HEARING DATE: December 7, 2012 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. NICHOLAS KASIRER, J.A. DENIS JACQUES, J.A. (AD HOC) APPELLANT ATTORNEYS ATTORNEY GENERAL OF CANADA Mtre Amin Njonkou Kouandou (absent) Mtre Pierre Lamothe (absent) MINISTÈRE DE LA JUSTICE CANADA RESPONDENTS ATTORNEY MANFRED KOCH DE BILLY TREMBLAY & ASSOCIATES INC. Mtre Steven Mark Kmec (absent) IMPLEADED PARTY ATTORNEY(

S) THE OFFICE OF THE SUPERINTENDENT OF THE BANKRUPTCY

Appellant's motion for production of an additional exhibit and respondent's motion for production of an additional document. On appeal from a judgment rendered on June 15 th 2012 by the Honourable Madam Justice Claude Dallaire of the Superior Court, District of Beauharnois. NATURE OF THE APPEAL : Bankruptcy – Discharge of the bankrupt Clerk: Linda Chau Courtroom: Pierre-Basile-Mignault HEARING Continuation of December 6, 2012, hearing. Judgment – See page 3. Linda Chau Clerk BY THE COURT

JUDGMENT [ 1 ] In connection with the appeal it has instituted against Manfred Koch (500-09-022802-128), the Attorney General of Canada has filed a motion to produce an additional exhibit to its record in appeal, relying for authority on articles 2, 20 and 46 C.C.P. and

section 22 of the Rules of the Court of Appeal in Civil Matters. The appellant seeks to add a "Report of the Trustee on the Bankrupt's Application for Discharge (subsection 170(1) of the Act)" that formed part of the record at trial (exhibit O-7). [ 2 ] Mr.

Koch has also filed a motion to produce an additional document in his materials on appeal, specifically the "Opposition to the Discharge of the Bankrupt (Subsection 170(7), Sections 172.1 and 173 of the Bankruptcy and Insolvency Act ", a proceeding filed by the appellant at trial and which is missing from the record. [ 3 ] The Attorney General rightly consents to Mr. Koch's motion. The document Mr. Koch seeks to add to the record is the originating proceeding relevant to the appeal. The Attorney General should have included it in the appropriate

schedule to its factum. It should be added to the record on appeal. [ 4 ] In respect of the Attorney General's motion, Mr. Koch prefers to leave the matter to the discretion of the Court. [ 5 ] In light of the fact that the "Report of the Trustee on the Bankrupt's Application for Discharge" formed part of the record at trial and that Mr. Koch himself relies on information in the Report in submissions made in paragraphs 45 and 47 of his factum, it cannot be said that adding the exhibit in appeal would cause prejudice to the respondent. It too should be added to the record.

FOR THESE REASONS, THE COURT: [ 6 ] GRANTS the Attorney General's motion to add an exhibit in the record in appeal; [ 7 ] AUTHORIZES the Attorney General of Canada to add to

Schedule IIIa) of its factum on appeal the "Report of the Trustee on the Bankrupt's Application for Discharge (subsection 170(1) of the Act)"; [ 8 ] GRANTS Manfred Koch's motion to add a document to the record in appeal; and [ 9 ] AUTHORIZES Mr. Koch to add a copy of the proceeding entitled "Opposition to the Discharge of the Bankrupt (Subsection 170(7), Sections 172.1 and 173 of the Bankruptcy and Insolvency Act " to

Schedule IIa) of his factum on appeal; [ 10 ] Without costs. YVES-MARIE MORISSETTE, J.A. NICHOLAS KASIRER, J.A. DENIS JACQUES, J.A. (AD HOC)