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.
