BANKRUPTCY |
Almecon Industries Ltd. v. Anchortek Ltd.
T-992-92
2004 FC 172, Lafrenière P.
2/2/04
10 pp.
Motion by plaintiff for order compelling Frank Bodell, Scott Makin, Exploration Plastics Ltd., Victory Plastics Ltd. and ATK Blow Moulding Inc. (respondents) to pay into Court $350,000 and for order Trustee in Bankruptcy for defendant, Anchortek Inc. (Anchortek), immediately provide copy of all of Anchortek's financial documents and business records in its possession--In 2001, Federal Court finding defendants liable for patent infringement--Reference ordered as to damages-- Quantum of Almecon's damages undetermined but lost profits estimated at $350,000--Anchortek making assignment in bankruptcy--Bankruptcy and Insolvency Act (BIA), s. 69.3 states "on the bankruptcy of any debtor, no creditor has any remedy against the debtor or the debtor's property, or shall commence or continue any action, execution or other proceedings, for the recovery of a claim provable in bankruptcy, until the trustee has been discharged"--Motion failed for three reasons--First, as result of assignment in bankruptcy of Anchortek, automatic and wide-ranging stay with respect to any proceedings which may be commenced or continued against company--By pursuing motion, plaintiff clearly circumventing mandatory provisions of BIA, and attempting to conduct its own parallel enforcement proceedings--BIA sets out complete statutory scheme for asserting claims against bankrupt or against property allegedly held in trust by bankrupt and imposes stay of proceedings for recovery of any claim provable in bankruptcy--In case at bar, remedies sought against Anchortek or its property must be determined in Bankruptcy Court in Alberta, deriving exclusive authority from BIA--Second, plaintiff not establishing any property being held in trust by or on behalf of Anchortek--No evidence illegal profits set aside as specific fund--Party claiming interest in trust property must establish trust exists under general principles of law--Claimant must establish: (1) certainty of intent; (2) certainty of subject-matter; and (3) certainty of object--Here, plaintiff failed to establish certainty of subject- matter--Accordingly, no "trust" within meaning of common law or BIA--Third, relief sought by plaintiff on this motion unavailable under Federal Court Rules, 1998, rr. 377 and 378--To come within ambit of Rules, plaintiff must identify specific property sought to be preserved--Here, "property to be preserved" illegal profits--Yet those profits not existing as identifiable fund--Motion dismissed-- Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, ss. 1 (as am. by S.C. 1992, c. 27, s. 2) s. 69.3 (as enacted idem, s. 36)--Federal Court Rules, 1998, SOR/98-106, rr. 377, 378.