Billington (Re), 2020 NSSC 130

SUPREME COURT OF Nova Scotia IN BANKRUPTCY AND INSOLVENCY Citation: Billington (Re) , 2020 NSSC 130 Date: 20200406 Docket: No. 44002 Registry: Halifax Estate Number : 51-2285305 In the Matter of: The bankruptcy of Teela Christine Billington Judge: Raffi A. Balmanoukian, Registrar Heard: March 27, 2020, in Halifax, Nova Scotia Counsel: [none] Balmanoukian, Registrar: [ 1 ] On March 27, 2020 I adjourned all current scheduled applications for student loan discharges under Section 178(1.1) of the Bankruptcy and Insolvency Act , RSC, 1985, c.

B-3 , as amended (the “ BIA ”), without day; an applicant may re-submit in accordance with this decision. I further ordered that the Court not accept any new applications under this

section under current circumstances without my leave. These are my reasons. [ 2 ] The Court currently operates under an “essential services” model, as a result of the Covid-19 pandemic. A discussion of that delivery model, and this Court’s place within it, is contained in my decision in Re Scotian Distribution Services Limited , released on even date herewith.

For current purposes, it is adequate to say that only urgent or essential matters are presently being heard, as determined by the presiding jurist, and that “urgent or essential” has a present narrow construction. [ 3 ] In the specific context of s. 178(1.1) student loan applications, the BIA requires that the applicant demonstrate, on a balance of probabilities, that s/he “ has and will experience financial difficulty to such an extent that the bankrupt will be unable to pay the debt” ( BIA s. 178(1.1) (b)). [ 4 ] Both the Canadian and Nova Scotia governments have announced an interest free six month moratorium on student loan payments.

That is automatic and applies to all federal and Nova Scotia student loan debts. As the term “interest free moratorium” implies, the balance does not increase during that time, and the minimum payment is zero. [ 5 ] Therefore, no student loan that falls under either moratorium, or both, can be said to be “urgent or essential” within the meaning of the current essential services delivery model. [ 6 ] As well, a minimum payment of zero, without interest, cannot presently meet the requirement of 178(1.1)(

b) that the applicant “has and will continue to experience financial difficulty to such an extent that the bankrupt will be unable to pay the debt.” No doubt an applicant might find her or himself facing other difficulties, such as credit constraints or angst as a result of the student debt load. That is not the test – the difficulty must apply to this loan, and it must be financial difficulty. With these moratoria, I cannot see how that would, during their currency, be the case. [ 7 ] Further and in addition, I have jurisdiction under Section 192(1) (

k) and (

m) of the BIA : (

k) to hear and determine any matter relating to practice and procedure in the courts; … (

m) to perform all necessary administrative duties relating to the practice and procedure in the courts; [ 8 ] In my view, these allow me, especially but not limited to the current exigent circumstances, to proceed as outlined in this decision. Houlden, Morawetz, and Sarra, The 2018-9 Annotated Bankruptcy and Insolvency Act puts it succinctly at para. I 51: Section 192(1)(

m) gives power to the registrar to perform all administrative duties. The organization and the day-to-day running of the court sitting in bankruptcy is vested in the registrar.

[ 9 ] With specific reference to student loans applications, I have adjourning jurisdiction; I can also refuse the application with leave to re-apply: Re Lau , 2010 BCSC 274 ; Re MacLean , 2012 NSSC 24 ; Re Simon , 2018 NSSC 332 . [ 10 ] I do not believe refusal with leave to re-apply is appropriate in the current moratorium environment. The Court is not deciding any particular case on its “usual” merits. Instead, it is acting in reflection on the current moratoria and the current Court essential services delivery model.

This application, and similar scheduled applications, are accordingly adjourned without day; none others during the essential services delivery model or during the student loan interest/payment moratorium applicable to that applicant (whichever is the later) are to be accepted without my prior leave. [ 11 ] An applicant who has previously filed, who wishes to re-apply after (

a) the end of the moratorium applicable to him or her, and (

b) upon either resumption of usual Court activity or upon establishing that the matter comes within the ambit of the “urgent and essential” threshold may do so, by re-filing and re-serving the appropriate documentation. [ 12 ] I add one further comment with respect to Ms. Billington’s own application. It was filed returnable to Halifax, as is her right. I have pointed out to her that this Court, when in full operation, sits throughout the Province as required.

She may, should she wish to reapply, do so with the matter returnable at a Court closer to her Northumberland place of residence, or wherever she may reside at the applicable time. The application, as with all matters in this Court, should still be filed at Halifax, but may be returnable at a scheduled sitting at another venue.

Conclusion [ 13 ] The application is adjourned without day; the applicant may re-apply at the expiry of the applicable repayment moratorium(s), and upon resumption of normal Court operations or upon establishing to my satisfaction that the threshold for Court scheduling in effect at the applicable time has been met. Balmanoukian, R.