BANKRUPTCY |
Marchand Syndics Inc. v. Laperrière
T-1116-04
2004 FC 1584, Tremblay-Lamer J.
10/11/04
30 pp.
Judicial review of decision by respondent, acting as delegate of Superintendent in Bankruptcy, imposing two series of conservatory measures directions under Bankruptcy and Insolvency Act, s. 14.03--Applicants subject of several reports of Office of Superintendent of Bankruptcy (OSB) as administration displaying chronic deficiencies in time taken to close files--Between 1993 and 2001, many creditors com-plaining about slowness of applicants in completing administration of file, several judgments of Superior Court of Quebec denouncing negligence--Given repeated refusal of applicants to comply with OSB requirements, respondent deciding to impose two series of conservatory measures directions--Measures taken only in regard to 48 files with large bank balances ($10,000 or more) since files likely to produce dividend for creditor--On June 9, 2004, applicants filing application for judicial review of two series of conservatory measures directions--Superintendent doubtless empowered to impose conservatory measures, since investiga-tion into applicants' practices undertaken in accordance with Act, s. 5(3)(e)--Discretionary decision maker such as Superintendent exceeding jurisdiction if using discretionary authority for improper purpose, exercising it arbitrarily or in bad faith or basing exercise of authority on irrelevant considerations--To find Superintendent exceeding jurisdic-tion, must first find decision did not satisfy applicable standard of review--Applying four factors of pragmatic and functional approach, Court concluding standard of patently unreasonable decision applicable standard of review--No evidence OSB using power to intervene for reasons extraneous to case--Not patently unreasonable to consider administration of estates in oldest files compromised, necessary to protect files by resorting to conservatory measures so administration of files could be diligently wound up and sums obtained paid to creditors at earliest opportunity--Such decision could not be characterized as patently unreasonable since neither "clearly irrational" nor evidently not in accordance with reason--OSB's decision imposing conservatory measures closer to administrative decision than adjudicative decision-- Legislation allowing OSB to act for purpose of protecting property of another--Given statutory framework, no need for OSB to grant applicants hearing or meet with them one last time, since all previous attempts proving unproductive-- Rules of natural justice complied with in regard to applicants, decision to issue conservatory measures directions not contra-vening Canadian Bill of Rights, s. 2(e)--Superior court should not intervene in exercise of discretionary authority by adminis-trative body solely on ground it would not have made same decision--Application dismissed--Bankruptcy and Insolven-cy Act, R.S.C., 1985, c. B-3, s. 5(3)(e), 14.03 (as enacted by S.C. 1992, c. 27, s. 9; 1997, c. 12, s. 14; c. 31, s. 18(E))-- Canadian Bill of Rights, R.S.C. 1970, App. III, s. 2(e).