Court of Appeal for Ontario

Citation: MLA Northern Contracting Ltd. v. LeBrun, 2008 ONCA 339

Date: 2008-05-01

Docket: C47863

Before: Laskin, Simmons and Lang JJ.A.

Between:

MLA NORTHERN CONTRACTING LTD. Plaintiff (Respondent)

and

ROBERT LEBRUN and SUSAN LEBRUN Defendants (Appellants)

And Between:

ROBERT LEBRUN and SUSAN LEBRUN Plaintiffs by Counterclaim (Appellants)

and

MLA NORTHERN CONTRACTING LTD., 1561286 ONTARIO LTD., 1561287 ONTARIO LTD., MARCEL R. JEAN, CHRISTOPHER L. JEAN and ANDY R. CHRISTIAN Defendants to the Counterclaim (Respondents)

And Between:

BDO DUNWOODY LIMITED, the Trustee in Bankruptcy in the estate of ROBERT PHILIP LEBRUN Plaintiff by Counterclaim (Respondents)

and

ROBERT LEBRUN also known as ROBERT PHILIP LEBRUN, MLA NORTHERN CONTRACTING LTD. 1490257 ONTARIO LTD., 1561286 ONTARIO LTD, 1561287 ONTARIO LTD., MARCEL R. JEAN, CHRISTOPHER L. JEAN and ANDY R. CHRISTIAN Defendants to the Counterclaim (Appellant/Respondents)

Counsel:

Michael Harris for the appellants Robert Lebrun and Susan Lebrun

W. Daniel Newton for the respondent BDO Dunwoody Ltd., trustee Brian A. Babcock for the respondent MLA Northern Contracting Ltd.

Heard: April 22, 2008

On appeal from the judgment of Justice Terrence Platana dated September 17, 2007 made at Thunder Bay.

ENDORSEMENT

[1] In our view this appeal cannot succeed.

[2] Under s. 40(1) of the Bankruptcy and Insolvency Act, Mr. LeBrun is entitled to the return of his property – his claimed interest in MLA – only if it is "found incapable of realization". However, the trustee has not made that determination, and indeed the settlement agreement the trustee entered into suggests that Mr. LeBrun's claimed interest was capable of realization.

[3] Moreover, Mr. LeBrun's bare assertion that in 2003 the trustee told him he need not disclose his claimed interest in MLA in the bankruptcy does not raise a genuine issue for trial. Mr. LeBrun was obliged to "put his best foot forward". Yet he gives no details of his supposed conversation with the trustee. He does not say that he gave the trustee a copy of the silent agreement on which he relies. He does not say that he told the trustee he had invested $135,000 in the company. And importantly, he does not say that he relied on what the trustee allegedly told him.

[4] The motion judge was therefore correct to grant summary judgment. The appeal is dismissed with costs fixed in the agreed amount of $9,000 all inclusive.

Signed: "John Laskin J.A."

"Janet Simmons J.A."

"S.E. Lang J.A."