2019 QCCA 294, 2019 QCCA 294

Zhou c. National Bank 2019 QCCA 294 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-027929-181 (550-11-015480-164) MINUTES OF THE HEARING DATE: February 20, 2019 THE HONOURABLE STEPHEN W. HAMILTON, J.A. PETITIONER feng qiong zhou SELF-REPRESENTED RESPONDENT national bank DESCRIPTION: Application for being relieved of default. (Art 193(

d) B.I.A. ) Clerk: Mihary Andrianaivo Courtroom: RC.18

HEARING 9:30 Continuation of the hearing of February 18, 2019. The presence of the Parties is not required, today. BY THE JUDGE: Judgment – See page 3. Mihary Andrianaivo Clerk BY THE JUDGE JUDGMENT [ 1 ] Ms.

Zhou filed a motion for leave to appeal and a notice of appeal from a judgment of the Superior Court for the District of Gatineau (Honourable Pierre Dallaire) rendered on October 19, 2018, [1] which dismissed her appeal from the judgment of the Registrar (Mtre Ann-Laure Brouillette) rendered on November 21, 2017 and corrected on January 16, 2018. [2] The judgment of the Registrar suspended the discharge of Ms. Zhou until December 18, 2019, and made her discharge conditional on her paying $40,000 to her trustee in bankruptcy for the benefit of her creditors. [ 2 ] The present appeal is governed by

Section 193 of the Bankruptcy and Insolvency Act ( BIA ). Ms. Zhou has a right of appeal under Paragraph 193 (

d) BIA . When she appeared before me on November 26, 2018 seeking leave to appeal, I dismissed her motion because she did not require leave. [3] [ 3 ] However, her notice of appeal filed on November 15, 2018 was late because it must be filed within 10 days of the Superior Court judgment. [4] Because the other parties were not present on November 26, 2018, I suggested to the Appellant that she make a motion to be relieved of her default.

She has now done so. [ 4 ] One of the issues that I must consider before granting her motion to be relieved of the default to file a notice of appeal on time is whether the appeal is serious. [ 5 ] In the present matter, I am not satisfied that Ms. Zhou has a serious appeal. [ 6 ] She borrowed $100,000 from the National Bank through London Life in 2008 to open an investment account.

The account was managed by London Life until December 2013, when she started managing the account. [ 7 ] She closed that account in May 2015, following a dispute with London Life over $11,000 in short term trading fees that London Life charged her. [ 8 ] When she closed the account, London Life sent her a cheque on May 27, 2015 for $130,731.20, which was the balance in the investment account after deduction of the disputed fees. This was a mistake: London Life should have reimbursed $100,000 to the National Bank and paid the remainder to Ms. Zhou. [ 9 ] Ms.

Zhou explained that she thought that London Life had paid the National Bank loan and that the cheque represented the balance due to her: the profit in her account without deduction of the disputed fees ($40,000), plus “very reasonable” compensation paid to her by London Life for the poor service it had given her ($90,000). [ 10 ] London Life sent a first letter on June 12, 2015 asking that she refund the $100,000 but she testified that she did not receive it. By the time she received the second letter dated July 24, 2015, she had spent all of the money: she repaid her student loans and amounts she

owed to her brother, she paid for medical services for her parents, and she says that she was defrauded of some $40,000 by her former boyfriend. [ 11 ] After the National Bank sued her for $100,000 on January 6, 2016, Ms. Zhou made a consumer proposal on January 26, 2016 and declared bankruptcy on February 16, 2016. She had over $115,000 of debt (principally the National Bank) and no assets. She paid $2,700 to her trustee for the benefit of her creditors. [ 12 ] The National Bank opposed her automatic discharge from bankruptcy on November 18, 2016. [ 13 ] The Registrar found that Ms.

Zhou’s bankruptcy was the result of her dilapidating $100,000 that she knew or should have known was not hers. She further found that Ms. Zhou has made no efforts to find work and reimburse something to her creditors. As a result, the Registrar suspended Ms. Zhou’s discharge for two years and made it conditional on her reimbursing $40,000 to her creditors. [ 14 ] The Superior Court judge dismissed her appeal. Ms.

Zhou did not file a transcript of the evidence before the Registrar and the judge concluded, on the basis of the limited material in the file, that the Registrar’s conclusions were “quite reasonable” and “make perfect sense” and that Ms. Zhou had failed to show any mistake or error.

He also concluded that the order to pay $40,000 was not unreasonable, given her ability to earn a salary and the fact that she used the $100,000 in part to repay $28,650 on her student loans which would not have been released by the bankruptcy. [5] [ 15 ] There is no basis on which this Court could intervene. [ 16 ] In the circumstances, I will not extend the delay for filing the notice of appeal. THEREFORE, THE UNDERSIGNED: [ 17 ] DISMISSES the motion to be relieved of the default, without legal costs since the other parties did not contest the motion. stephen w. hamilton, J.A.