BANKRUPTCY |
McMahon v. Canada (Attorney General)
T-262-02
2004 FC 540, Lemieux J.
7/4/04
12 pp.
Judicial review of Superintendent of Bankruptcy's decision to suspend applicant's licence as trustee under Bankruptcy and Insolvency Act (BIA)--BIA, s. 14.02(4) providing decision "shall" be given to trustee not later than three months after conclusion of hearing--Superintendent's decision released seven months beyond deadline--Whether word "shall" in s. 14.02(4) mandatory or directory--Notwithstanding Interpretation Act, s. 11, providing "shall" to be construed as imperative, in certain circumstances, interpreted as directory-- Object and purpose of statute often explains why courts, in certain cases, found word "shall" to be mandatory and, in others, to be directory--BIA provisions governing trustees promoting public interest in ensuring trustees act appropriately --Hearing under s. 14.02 disciplinary hearing--Three principal factors to determine whether "shall" to be interpreted as directory--Both parties agreed two factors met here, i.e. Superintendent discharging public duty and BIA not imposing penalty on Superintendent for failure to comply with time limit--As to prejudice, applicant suffered little from Superintendent's failure to decide within prescribed time-- Prejudice delay in time only--However, applicant suffered some stress in having decision affecting him remaining pending--Applicant had no legitimate expectation would not be suspended after three-month period within which Superintendent to decide--Applicant attempted to soften prejudice to public interest if decision quashed by arguing Superintendent could discipline applicant in other ways than by suspending his licence, e.g. could impose on trustee conservatory measures under s. 14.03--However, acceptance of this argument would unduly interfere with disciplinary function vested in Office of Superintendent of Bankruptcy who, after investigation and report, felt it appropriate to seek discipline under s. 14.01 rather than having recourse to conservatory measures provided for in s. 14.03--Application dismissed--Disposition of this application not giving Superintendent licence to render decisions under s. 14.02(4) beyond three-month time limit--Bankruptcy and Insolvency Act, R.S.C., 1985, c. B-3, ss. 1 (as am. by S.C. 1992, c. 27, s. 2), 14.01 (as enacted idem, s. 9; 1997, c. 12, s. 12), 14.02 (as enacted by S.C. 1992, c. 27, s. 9; 1997, c. 12, s. 13; 2002, c. 8, s. 182(1)), 14.03 (as enacted by S.C. 1992, c. 27, s. 9; 1997, c. 12, s. 14; 1999, c. 31, s. 18)--Interpretation Act, R.S.C., 1985, c. I-21, s. 11.