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Appeal dismissed; proposed amendments regarding improvident sale cannot defend a section 38 BIA action.
The appellants sought to amend their statement of defence to allege an improvident sale and de facto foreclosure by the respondent credit union.
The motion judge dismissed the motion on res judicata and abuse of process grounds.
On appeal, the Court of Appeal upheld the dismissal but on different grounds, finding that the claims could not provide a defence or set-off to the respondent's action under section 38 of the Bankruptcy and Insolvency Act, and that any separate counterclaim belonged to the trustee in bankruptcy, not the appellants.
Order set aside without prejudice with liberty to start new proceedings.
The appellants appealed the order of Chadwick J. The Court of Appeal set aside the order without prejudice to the rights of the parties, granting them liberty to start new proceedings, including on issues not dealt with by the lower court.
Costs were fixed at $9,000 to the respondents.
