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Appeal dismissed; no error in finding no unrealized assets or in awarding substantial indemnity costs.
The appellant bank appealed a decision dismissing its motion to reappoint a trustee in bankruptcy and annulling a bankruptcy order, as well as the substantial indemnity costs awarded against it.
The Court of Appeal found no error in the trial judge's conclusion that there were no unrealized or undistributed assets under s. 41(11) of the Bankruptcy and Insolvency Act, noting the bank failed to adduce evidence that certain appraisals would have altered property valuations.
The Court also upheld the substantial indemnity costs orders, finding the trial judge acted within his discretion.
The appeal was dismissed with costs fixed at $15,000.
All charitable assets were exigible to satisfy abuse claims in the winding-up.
In a winding-up of a charitable corporation facing extensive institutional abuse claims, the liquidator sought appellate clarification on whether assets allegedly held on special purpose charitable trusts were shielded from tort creditors whose claims arose elsewhere within the charity’s operations.
The court held that Canadian law recognizes no charitable immunity from tort liability and rejects any trust-fund theory that would immunize charitable assets from execution.
In the winding-up context, all assets of the charitable corporation, whether beneficially owned or held on trust for charitable purposes, were available to satisfy legitimate tort claims.
The court also struck out a paragraph of the order suggesting it was not intended to affect related British Columbia proceedings, while confirming that the British Columbia court remained free to make its own factual findings on ownership issues.
