COURT OF APPEAL FOR ONTARIO

CITATION: Johnson v. Fisher, 2020 ONCA 613

DATE20200929

DOCKET: C67750

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

[1] The 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.

[2] The motion judge properly struck out his claim on the basis of lack of legal capacity.

[3] Under 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.

[4] In 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.

[5] For 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.”