IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
In the Matter of the Bankruptcy of Michael Ernst Ruge, |
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2008 BCSC 564 |
Date: 20080208
Docket: 06-2746
Registry: Victoria
IN BANKRUPTCY AND INSOLVENCY
In the Matter of the Bankruptcy of
Michael Ernst Ruge
Before: The Honourable Mr. Justice Johnston
Oral Ruling on Application Re Jurisdiction
In Chambers
February 8, 2008
| Counsel for the Trustee in Bankruptcy: |
W. Roberts |
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| Counsel for Michael Ernst Ruge: |
H. Wellman, Agent |
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| Appearing via teleconference: |
P. Wood, Trustee In Bankruptcy |
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| Appearing on behalf of the BC Securities Commission:
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D. Say, Representative |
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Place of Trial/Hearing: |
Victoria, B.C. |
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[1] THE COURT: This is an application to vary an order of Registrar Bouck sitting as registrar in bankruptcy that was made August 30, 2007. At that time the registrar granted Mr. Ruge an absolute discharge but suspended that discharge for six months until March 1, 2008, and granted as a term of the order to the trustee or any creditor who had filed a notice of opposition liberty to apply to review, rescind, or vary the order so long as the application was made prior to March 1, 2008.
[2] The trustee now makes that application.
[3] The first question was whether or not this application should be heard by Registrar Bouck. I have been provided the decision of Mr. Justice Topolniski of the Alberta Court of Queen's Bench in Garritty where I think it is fair to say that the broad statement that one member of the court should not vary or rescind the order of another unless the circumstances mandate it is set out. That is a principle that commends itself to me. I recognize that in that case Mr. Justice Topolniski proceeded then to vary on grounds of expediency based upon assurances made by counsel that even if the matter were sent back to the registrar, one or the other side was going to appeal it and it would end up back before him.
[4] I note that the order which I am asked to vary is a consent order. That is of some significance to me because in ordinary circumstances consent orders are not preceded by lengthy submissions of counsel and do not require a detailed review of whatever evidence is before the court on the application. It is not, therefore, clear to me that Registrar Bouck has any significant advantage over me by way of familiarity with the materials which led to her order or a thorough canvass of the issues which led to her order.
[5] I am also a bit troubled by what standard of review I should apply to an application to vary, and without benefit of any authority, I have decided that if I do proceed, I should apply a test of material change in circumstances. I say that not on the basis of any particular authority but on what I consider to be an appropriate principle, and that is that there should be some finality even to non-final orders, and if there is to be application to vary, something should have changed since the order under review was made.
[6] There is not much question that I have whatever jurisdiction I need as registrar to vary Registrar Bouck's order, so the only question is, should I do so or should I send it back to her? In my view, given that it is a consent order under review, and my remarks about the particularity or the level of detail in evidentiary review or submissions was likely not great, I ought not to send it back to Registrar Bouck and I ought to proceed to consider whether the order she made in August should be varied.
[7] I do not wish by that to be taken to establish any line of authority that stands for the proposition that registrars' orders should routinely be brought before the court for variation. I do so because I view the circumstances here, combining the consent nature of the order under review, what has occurred since then, the fact that we are in early February with a March end to this bankruptcy, as sufficiently urgent that I should take the jurisdiction that I am urged to take and consider the application on its merits.
"R.T.C. Johnston, J."
The Honourable Mr. Justice Johnston