COURT OF APPEAL FOR ONTARIO
DATE20200929
BEFORE: Pepall, Benotto and Coroza JJ.A.
BETWEEN
Dalton Johnson a.k.a. Bill Jamieson
Plaintiff (Appellant)
and
Rosemary Anne Fisher
Defendant (Respondent)
COUNSEL:
J. Richard Forget, for the appellant
Adrienne Lei, for the respondent
Heard and released orally by videoconference: September 25, 2020
On appeal from the order of Justice Sandra Nishikawa of the Superior Court of Justice, dated November 27, 2019.
REASONS FOR DECISION
1The appellant filed an assignment into bankruptcy on June 14, 2017. He subsequently commenced an action against the respondent for damages for solicitor’s negligence. At the time, he was an undischarged bankrupt.
2The motion judge properly struck out his claim on the basis of lack of legal capacity.
3Under s. 71 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, on bankruptcy, a bankrupt ceases to have any capacity to dispose of or otherwise deal with their property, which shall, subject to the Act and to the rights of secured creditors, pass to and vest in the trustee in bankruptcy. Property includes a cause of action.
4In this case, the appellant had no power to initiate the action against the respondent while still an undischarged bankrupt as the cause of action vested in the trustee.
5For these reasons, the appeal is dismissed. There will be no order of costs.
“S.E. Pepall J.A.”
“M.L. Benotto J.A.”
“S. Coroza J.A.”
