CANNON J.-This is an application brought before me in_ chambers on the 2nd day of April, 1931, by Max Valinsky, for special leave to appeal to this court from the decision of the Supreme Court of Nova Scotia in banco rendered herein on February 7, 1931 (1), and to fix the security for costs. The material facts are the following:
On 14th June, 1930, Louis Webber made an assignment for the benefit of creditors.
On 16th June, 1930, the Official Receiver (Harris) appointed Canadian Credit Men's Trust Association, Custodian.
S.C.R.]
(1) C.B.R.
C.B.R. On 21st June, 1930, an order was made by the (Registrar and) Official Receiver, for the sale of certain of the WEBER ; stock in trade, consisting of women's hats, to one Max Valinsky.
On 28th June, 1930, a meeting of the creditors of the Cannon J. bankrupt appointed George R. Bacon, Trustee, and authorized him to institute proceedings by way of appeal, to set aside the order of 21st June, and
On 30th June, 1930, Bacon appealed to the Judge in Bankruptcy to set that order aside.
On 6th August, 1930, Mr. Justice Chisholm (1) set aside and vacated the Official Receiver's order of 21st June. On 20th September, 1930, Max Valinsky, the purchaser of the said stock in trade at the said sale, appealed against the order of the Bankruptcy Judge, and
On 28th February, 1931, the Supreme Court of Nova Scotia in banco dismissed Valinsky's appeal with costs, (Mellish J. and Paton J. dissenting) (2).
On 10th March, 1931, the Supreme Court of Nova Scotia in banco extended the time within which an application for leave to appeal could be made to a Judge of the Supreme Court of Canada, to 60 days from 7th February, 1931, (viz., to 8th April, 1931).
The learned counsel for the trustee opposed the application for several reasons, the first of which was that I had no jurisdiction to grant leave to appeal under the General Bankruptcy Rule 72, because this application is presented to me after thirty days from the pronouncing of the decision complained of. The relevant section and rule are: 174. Any person dissatisfied with an order or decision of the court or a judge in any proceedings under this Act may appeal to the Appeal Court if the
(a) question to be raised on the appeal involves future rights; or (b) order or decision is likely to affect other cases of a similar nature in the bankruptcy or authorized assignment proceedings; or (c) amount involved in the appeal exceeds five hundred dollars; or (d) appeal is from the grant or refusal to grant a discharge and the aggregate of the unpaid claims of creditors exceeds five hundred dollars.
2. The decision of the Appeal Court upon any such appeal shall be final and conclusive unless special leave to appeal therefrom to the Supreme Court of Canada is obtained from a judge of that court. (1) C.B.R. 490.
(2) C.B.R. 274. The date of the decision was 7th February, 1931; the date of the order was 28th February, 1931 (Reporter's note). Rule 72:
Is the order of the Supreme Court of Nova Scotia in banco, rendered on the 10th March, 1931, extending the delay fixed by the above rule 72 for a further period of thirty days, making the time within which such application for special leave to appeal can be made a period of sixty days from February 7, 1931, sufficient to give me jurisdiction to hear this application and grant an appeal, if good cause is shown?
The applicant relies on section 163, paragraph 5, which says:
The court, as defined by sec. 2 is the one " which is invested with original jurisdiction in bankruptcy under this Act "; and section 152 invests the Supreme Court of Nova Scotia during term, and in vacation or in chambers, " with such jurisdiction at law and in equity as will enable it to exercise original, auxiliary and ancillary jurisdiction in bankruptcy and in other proceedings authorized by the Act."
It appears to me that, even if the Supreme Court of Nova Scotia was empowered to extend the delay, such power should be exercised by a judge thereof exercising the original jurisdiction above defined. In this instance, however, the extension of delay was granted by the Supreme Court of Nova Scotia en banc, whose jurisdiction is limited by section 152, par. 3, of the Bankruptcy Act " to make or render on appeal asserted, heard and decided according to their ordinary procedure, except as varied by General Rules, the order or decision which ought to have been made or rendered by the court appealed from."
Clearly, in my mind, the Supreme Court in banco has no jurisdiction in bankruptcy, except on appeal from a decision or order covered by paragraphs a, b, c, or d of section 174. They cannot in the first instance hear or entertain a petition to extend the delay. Moreover, I entertain grave a doubts whether such a petition could be granted even by ; the original court in bankruptcy.
Rule 68 reads as follows:
68. No appeal from a judge to the Appeal Court shall be brought Cannon J. unless notice thereof is filed with the registrar and served within ten days after the pronouncing of the order or decision complained of or within 8uch further time as may be allowed by a judge.
(2) At or before the time of entering an appeal the party intending to appeal shall lodge in the court the sum of one hundred dollars to satisfy, in so far as the same may extend, any costs that the appellant may be ordered to pay. Provided that the Appeal Court may in any special case increase or diminish the amount of such security or dispense therewith.
This clearly gives to a judge the right to extend the time to give notice of appeal to the Appeal Court. Rule 72, concerning the appeals to the Supreme Court, does not contain a similar provision and gives to no judge, either of the provincial courts or of this court, power to extend the thirty days within which an application for special leave to appeal and to fix the security for costs must be made to a judge of the Supreme Court of Canada.
As pointed out by Mignault J., in In re Gilbert (1), " the time fixed by bankruptcy rule 72, supra, for applying for leave to appeal goes to the jurisdiction of the judge to whom this application is made and who here acts as persona designata "; and " it is to be observed that these rules, provided they are not inconsistent with the terms of The Bankruptcy Act, must be judicially noticed and have effect as if enacted by the Act " (section 161, R.S.C., 1927, chapter 11).
I have no power to extend the delay and a fortiori the court below has no jurisdiction to do so, no more than they can issue an order allowing an appeal to this court. I agree with Harris C.J., in Eastern Trust Co. v. Lloyd Mfg. Co. (2), who says: An examination of the bankruptcy Rules shows that they are a full and complete code and framed for the obvious purpose of providing summary and expeditious methods for determining questions arising in bankruptcy matters with the minimum of cost.
It is of the utmost importance that bankrupt estates should be wound up as cheaply and expedi. tiously as possible and Parliament had the right in dealing with the question of bankruptcy and insolvency to do what I think it has done in this case-prescribe a special procedure for determining questions raised in realizing the assets of the estate.
(1) (1925) 5 C.B.R. 790, at 792,
(2) (1923) 3 CB.R. 710, at 713- 791-2;
Can. S.C.R.
714 (N.S.).
275, at 278, 277.
Statutes and regulations cited
-
Unresolved citations
- section 163
- section 152
- section 174
- section 161