DATE: 20060606

DOCKET: C43922

COURT OF APPEAL FOR ONTARIO

RE:

IN THE MATTER OF THE BANKRUPTCY OF JOSEPH SIDNEY WHITE also known as JERRY WHITE, in the City of Toronto, in the Province of Ontario.

BEFORE:

GILLESE, ARMSTRONG and LANG JJ.A.

COUNSEL:

Hugh Pattison

for the appellant

R. Klotz

for the respondent

HEARD & ENDORSED:

June 2, 2006

On appeal from the order of Justice Susan E. Greer of the Superior Court of Justice dated July 18, 2005.

A P P E A L B O O K E N D O R S E M E N T

[1] In our view, there is no merit to this appeal. We accept the respondent’s arguments on all of the issues, namely:

(1) the official Receiver refused a mediation based on Bankruptcy Rule 105 (12)(a). Consequently, the Trustee was entitled to proceed to court for a s. 68 order;

(2) the hearing before Justice Greer was procedurally fair to the appellant. He was represented by counsel throughout and had the opportunity to call any witnesses he wished and to raise any issues that he wished addressed;

(3) the issue of the wife’s involvement was not raised below. It clearly could have been. It is not open to the appellant to raise it now particularly as it is not really his issue to raise. We note in this regard that the wife does not appear today and we understand that she has counsel now and has had counsel throughout. In addition, the Trustee would be prejudiced by permitting the appellant to raise this issue at this stage in the proceeding. The appellant has been bankrupt for twenty‑eight months without making any surplus income payment to the Trustee. Permitting the appellant to raise this issue now would prolong the delinquency and increase the expense to which the estate has been put and the delay would be occasioned all by the appellant’s failure to raise the issue below.

[2] To the extent it is not already clear from those reasons, there was no error by the Trustee in proceeding with a s. 68 hearing at the time that he did and in the manner that he did.

[3] Accordingly, the appeal is dismissed. The Trustee seeks the limited costs of $500.00, inclusive, and we so order.