Sam Lévy & Associés Inc. v. Azco Mining Inc., [2001] 3 S.C.R. 978, 2001 SCC 92

Azco Mining Inc. Appellant

v.

Sam Lévy & Associés Inc. Respondent

Indexed as: Sam Lévy & Associés Inc. v. Azco Mining Inc.

Neutral citation: 2001 SCC 92.

File No.: 27876.

2001: May 15; 2001: December 20.

Present: McLachlin C.J. and L’Heureux‑Dubé, Iacobucci, Major, Binnie, Arbour and LeBel JJ.

on appeal from the court of appeal for quebec

Bankruptcy and insolvency -- Courts -- Jurisdiction -- Trustee presenting petition to Quebec Superior Court sitting in bankruptcy seeking to “recuperate” assets held by company with office in British Columbia -- Company bringing motion to transfer petition to British Columbia -- Whether Superior Court lacked subject matter jurisdiction over petition -- Whether Superior Court erred in exercising discretion against making transfer order -- Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-1, s. 187(7).

The appellant is a company incorporated under the laws of Delaware, offering venture capital services from its office in British Columbia. In 1996, a deal involving the financing of an African gold mine was struck between the appellant and Eagle, a company with offices in Quebec. The parties reduced their agreement to a series of documents, each of which contained a clause stating that the agreement was to be governed by the laws of British Columbia. In September 1997, Eagle was adjudged bankrupt by the Quebec Superior Court sitting in bankruptcy and the respondent firm was appointed trustee in bankruptcy. In January 1999, the respondent trustee presented a petition seeking to “recuperate” the assets of Eagle, including the monetary value of numerous shares held or controlled by the appellant. The appellant then brought a motion to transfer the petition “to the Supreme Court of British Columbia, Bankruptcy Division of Vancouver”. The appellant’s motion was dismissed. The Court of Appeal unanimously upheld that decision.

Held: The appeal should be dismissed.

The bankruptcy petition was properly filed in the Quebec Superior Court sitting in bankruptcy. A creditor is required to file a bankruptcy petition in the court having jurisdiction in the judicial district of the locality of the debtor. Eagle carried on business in Quebec and its only connection to British Columbia was that the agreements between itself and the appellant referred to the law of that province. Nothing in the evidence suggested that the bankruptcy court in Quebec lacked subject matter jurisdiction over the petition or personal jurisdiction over Eagle when it made the receiving order. The bankruptcy court thereby acquired jurisdiction to deal with matters affecting the bankrupt estate arising in British Columbia. The Bankruptcy and Insolvency Act establishes a nationwide scheme for the adjudication of bankruptcy claims. Section 188(1) ensures that orders made by the bankruptcy court sitting in one province can and will be enforced across the country.

The bankruptcy court does not lack subject matter jurisdiction over the dispute because it is a contract case. While a trustee’s claim in relation to a “stranger to the bankruptcy” or lacking the “complexion of a matter in bankruptcy” should be brought in the ordinary civil courts, if the contractual dispute properly relates to the subject matter of the bankruptcy proceedings, the fact it also has a property and civil rights aspect does not in any way impair the bankruptcy court’s jurisdiction. Here, far from being a “stranger” to the bankruptcy, the appellant is potentially the most significant player in the role of either creditor or debtor, as the case may be. Further, while the bankruptcy court does not have the general jurisdiction of a civil court to award damages in breach of contract cases, the trustee’s claim is not properly characterized as a claim in damages but as a claim to specific property of the bankrupt which is being wrongfully withheld by the appellant.

The Bankruptcy and Insolvency Act prima facie establishes one command centre or “single control” for all proceedings related to the bankruptcy. “Single control” is not necessarily inconsistent with transferring particular disputes elsewhere, but a creditor (or debtor) who wishes to fragment the proceedings, and who cannot claim to be a “stranger to the bankruptcy”, has the burden of demonstrating “sufficient cause” under s. 187(7) to send the trustee scurrying to multiple jurisdictions. The motions judge was entitled to conclude that the facts of this case do not show “sufficient cause” to require the transfer to British Columbia.

The relevant agreements to which the appellant and Eagle were parties contained choice of law, not choice of forum provisions, and the Quebec courts are perfectly able to apply the law of British Columbia. Furthermore, arts. 3148 and 3135 of the Civil Code of Québec would only apply in bankruptcy court “[i]n cases not provided for in the Act or . . . Rules”. Since s. 187(7) of the Act specifically provides that a transfer will not be ordered unless there is satisfactory proof that a proceeding will be “more economically administered” in another division or district or “for other sufficient cause”, these particular provisions of the Code can have no application. Where, unlike in this case, a defendant has the benefit of a choice of forum clause, such a clause ought to be taken into careful consideration by a motions judge under s. 187(7) but it is not binding.

Cases Cited

Followed: Stewart v. LePage (1916), 1916 CanLII 626 (SCC), 53 S.C.R. 337; In re Ireland (1962), 5 C.B.R. (N.S.) 91; Holt Cargo Systems Inc. v. ABC Containerline N.V. (Trustees of), [2001] 3 S.C.R. 907, 2001 SCC 90; distinguished: Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), 1993 CanLII 124 (SCC), [1993] 1 S.C.R. 897; referred to: Attorney-General for Alberta v. Atlas Lumber Co., 1940 CanLII 33 (SCC), [1941] S.C.R. 87; Boily v. McNulty, 1927 CanLII 50 (SCC), [1928] S.C.R. 182; In re Mount Royal Lumber & Flooring Co. (1926), 1927 CanLII 842 (QC CS), 8 C.B.R. 240; Associated Freezers of Canada Inc. (Trustee of) v. Retail, Wholesale Canada, Local 1015 (1996), 1996 CanLII 5624 (NS CA), 39 C.B.R. (3d) 311; Kansa General International Insurance Co. (Liquidation de), 1998 CanLII 12824 (QC CA), [1998] R.J.Q. 1380; In re Morris Lofsky (1947), 1947 CanLII 71 (ON CA), 28 C.B.R. 164; Sigurdson v. Fidelity Insurance Co. (1980), 1980 CanLII 404 (BC CA), 35 C.B.R. (N.S.) 75; Re Holley (1986), 1986 CanLII 2586 (ON CA), 54 O.R. (2d) 225; Falvo Enterprises Ltd. v. Price Waterhouse Ltd. (1981), 1981 CanLII 1845 (ON SC), 34 O.R. (2d) 336; In re The Moratorium Act (Sask.), 1955 CanLII 78 (SCC), [1956] S.C.R. 31; Union St. Jacques de Montreal v. Bélisle (1874), L.R. 6 P.C. 31; Ellis v. Silber (1872), L.R. 8 Ch. App. 83; Cry-O-Beef Ltd./Cri-O-Bœuf Ltée (Trustees of) v. Caisse Populaire de Black-Lake (1987), 1987 CanLII 761 (QC CA), 66 C.B.R. (N.S.) 19; In re Martin (1953), 1953 CanLII 400 (ON SC), 33 C.B.R. 163; In re Reynolds (1928), 1928 CanLII 422 (ON SC), 10 C.B.R. 127; Re Galaxy Interiors Ltd. (1971), 1971 CanLII 486 (ON SC), 15 C.B.R. (N.S.) 143; Mancini (Trustee of) v. Falconi (1987), 65 C.B.R. 246; Geoffrion v. Barnett, [1970] C.A. 273; Arctic Gardens inc. (Syndic de), 1989 CanLII 1261 (QC CA), [1990] R.J.Q. 6; Excavations Sanoduc inc. v. Morency, 1991 CanLII 3680 (QC CA), [1991] R.D.J. 423; In re Atlas Lumber Co. v. Grier and Sons Ltd. (1922), 3 C.B.R. 226; In re Maple Leaf Fruit Co. (1949), 1949 CanLII 273 (NS CA), 30 C.B.R. 23; Re Westam Developments Ltd. (1967), 1967 CanLII 496 (BC CA), 10 C.B.R. (N.S.) 61; Re M. B. Greer & Co. (1953), 1953 CanLII 399 (ON SC), 33 C.B.R. 69; Re M.P. Industrial Mills Ltd. (1972), 17 C.B.R. 226; Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] 2 S.C.R. 561; Re Lions D’Or Ltée (1965), 8 C.B.R. (N.S.) 171; Re M. Pollack Ltée (1979), 30 C.B.R. (N.S.) 256; Bourque Consumer Electronics Inc. (Syndic de), J.E. 91-1040; Sarabia v. “Oceanic Mindoro” (The) (1996), 1996 CanLII 1537 (BC CA), 26 B.C.L.R. (3d) 143, leave to appeal refused [1997] 2 S.C.R. xiv; Volkswagen Canada Inc. v. Auto Haus Frohlich Ltd., 1985 ABCA 223, [1986] 1 W.W.R. 380; Ash v. Lloyd’s Corp. (1991), 1991 CanLII 7347 (ON SC), 6 O.R. (3d) 235, aff’d (1992), 1992 CanLII 7659 (ON CA), 9 O.R. (3d) 755, leave to appeal refused [1992] 3 S.C.R. v; Maritime Telegraph and Telephone Co. v. Pre Print Inc. (1996), 1996 NSCA 45, 131 D.L.R. (4th) 471; Industrial Packaging Products Co. v. Fort Pitt Packaging International, Inc., 161 A.2d 19 (1960); In re Treco, 239 B.R. 36 (1999), aff’d 240 F.3d 148 (2001); Industrial Acceptance Corp. v. Lalonde, 1952 CanLII 2 (SCC), [1952] 2 S.C.R. 109; Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d 190 (1983); In re Diaz Contracting, Inc., 817 F.2d 1047 (1987); Hays and Co. v. Merrill Lynch, 885 F.2d 1149 (1989).

Statutes and Regulations Cited

Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, ss. 2(1) [am. 1997, c. 12, s. 1], 17(1), 30(1)(d), 43(5) [rep. & sub. 1992, c. 27, s. 15], 72(1), 183(1)(b), (c), 187(7), 188(1), (2).

Bankruptcy and Insolvency General Rules, C.R.C., c. 368 [am. SOR/98-240], s. 3.

Civil Code of Québec, S.Q. 1991, c. 64, arts. 3135, 3148.

Code of Civil Procedure, R.S.Q., c. C-25.

Constitution Act, 1867, ss. 91(21), 92(13).

Authors Cited

Bohémier, Albert. Faillite et insolvabilité, vol. 1. Montréal: Thémis, 1992.

Castel, J.-G. Canadian Conflict of Laws, 4th ed. Toronto: Butterworths, 1997.

Fletcher, I. F. Insolvency in Private International Law. Oxford: Clarendon Press, 1999.

Houlden, L.W., and G.B. Morawetz. Bankruptcy and Insolvency Law of Canada, vol. 2, 3rd ed. Toronto: Carswell, 1989 (loose-leaf updated 2001, release 7).

APPEAL from a judgment of the Quebec Court of Appeal, 2000 CanLII 9546 (QC CA), [2000] R.J.Q. 392, [2000] Q.J. No. 417 (QL), dismissing the appellant’s appeal from a judgment of the Superior Court, 1999 CanLII 11910 (QC CS), [1999] R.J.Q. 1497. Appeal dismissed.

Yves Martineau, for the appellant.

Jean-Philippe Gervais, for the respondent.

The judgment of the Court was delivered by

1 Binnie J. -- The long arm of the Quebec Superior Court sitting in Bankruptcy reached out to the appellant in Vancouver, British Columbia, in respect of a claim for shares and warrants and other debts allegedly due to the bankrupt which the trustee in bankruptcy values in excess of $4.5 million. The appellant protested that the dispute, which involves the financing of an African gold mine, has nothing to do with Quebec. It argues that the claim of the respondent trustee in bankruptcy is an ordinary civil claim that rests entirely on agreements that are to be interpreted according to the laws of British Columbia. For this and other reasons of convenience and efficiency, the appellant says, the claim ought to proceed in British Columbia. The bankruptcy court and the Quebec Court of Appeal rejected these submissions and, in my view, the further appeal to this Court ought also to be dismissed.

I. Facts

2 The appellant Azco Mining Inc. (“Azco”), a company incorporated under the laws of Delaware, offered venture capital services from its office in Vancouver, British Columbia. In 1996 it was introduced to Eagle River International Limited and Eagle River Exchange and Financial Services Inc. (hereinafter collectively referred to as “Eagle”), with offices in Gatineau, Quebec. Eagle was in the process of trying to develop promising gold mining properties in a 500 square mile area of Mali, West Africa. A deal was struck whereby Eagle would continue to use its expertise to bring the mines to production through subsidiary companies in Mali, and Azco would provide the financing. The parties reduced their agreement to a series of documents, each of which contained what the appellant contends is a choice of forum clause and the respondent argues is no more than a choice of law clause, as follows:

June 7, 1996 financing agreement

28. The agreement shall be governed by the law of British Columbia.

June 12, 1996 management services agreement

13. Arbitration: The Parties hereto agree that all questions or matters in dispute with respect to this Agreement shall be submitted to arbitration pursuant to the terms hereof.

14. Applicable Law: The situs of this Agreement is Vancouver, British Columbia, and, for all purposes this Agreement, will be governed exclusively by and construed and enforced in accordance with the laws prevailing in the Province of British Columbia.

3 In addition, Azco relies on the terms of the debenture entered into by Azco with Eagle’s subsidiary company in Mali (called West African Gold & Exploration S.A.), as follows:

West African Gold & Exploration S.A. Debenture dated August 9, 1996

17. [The] situs of this Debenture is Vancouver, British Columbia, and for all purposes this Debenture will be governed exclusively by and construed and enforced in accordance with the laws prevailing in the Province of British Columbia. In addition, the Company hereby expressly acknowledges and agrees to forthwith execute any and all documentation which may be necessary in order to ensure both the enforceability of this Debenture and the valid registration thereof as against the Mortgaged Property under the laws prevailing in each of the Province of British Columbia and the Republic of Mali and, in addition, and without limiting the generality of the foregoing, to attorn, if required, to any courts of competent jurisdiction in the Province of British Columbia in order to either administer or interpret this Debenture in accordance with the laws prevailing in the Province of British Columbia.

4 It was envisaged that if the project were successful Azco would ultimately own a majority interest in what the trustee describes as a joint venture holding company, Sanou Mining Corporation (“Sanou”). Eagle was to be a minority partner.

5 During the period of May 16, 1996 and May 1, 1997, Azco paid Eagle a total of US$3,844,858. For each payment, Eagle executed a promissory note, undertaking to repay Azco if it failed to fulfill its contractual obligations.

6 On September 12, 1997, Eagle was adjudged bankrupt. The respondent firm was appointed trustee in bankruptcy. Despite Eagle’s bankruptcy, the Mali project proceeded and, according to Azco, it is still underway. The trustee says that the appellant now controls the holding company Sanou and continues to withhold, wrongfully, the 3.5 million shares and 4 million warrants to which Eagle was (and is) entitled.

7 On January 18, 1999, the respondent trustee presented a petition to the Quebec Superior Court sitting in Bankruptcy (“the bankruptcy court”) seeking to “recuperate the assets” of Eagle, including the monetary value of what it considers the wrongfully withheld property of the debtor, namely 125,000 shares of Azco itself and 3.5 million shares and 4 million warrants of Sanou. The respondent trustee values the Azco shares at CAN$337,500 and the Sanou interest at US$1,875,000. In addition the trustee advances some monetary claims for a variety of alleged debts.

8 On February 24, 1999, the appellant brought a motion to transfer the petition “to the Supreme Court of British Columbia, Bankruptcy Division of Vancouver”. In support of its motion, the appellant stated that “it is a certainty that Azco will file a counterclaim for an amount in excess of $5,000,000 Cdn., based principally” on the financing agreements to recover about US$3.85 million in the payments to Eagle mentioned above which, as stated, were secured by promissory notes. The contractual arrangement, says Azco, was that if certain conditions in the agreements were not met, the advances would be treated as a demand loan. Azco says the conditions were not met and that it is entitled to immediate repayment of all advances. Azco submitted that “[t]he Superior Court of the Bankruptcy Division of Hull does not have jurisdiction to hear this contractual claim against Azco”. Its position, as stated, was that the file should be transferred to the Bankruptcy Division of Vancouver.

9 Azco’s Vice-President of Finance, Ryan Modesto, who lives in the United States, testified in support of the motion that Azco is a creditor in the bankruptcy:

Q. So is it Azco Mining’s position that it is the creditor in that bankruptcy of Eagle River?

A. Yes, it is.

Q. For what amount?

A. For three million eight hundred forty-four thousand eight hundred and fifty-eight dollars ($3,844,858) plus accrued interest.

Q. That’s U.S. currency?

A. That is U.S. currency.

Q. And you refer to interest. Are you referring to the interest referred to in the promissory note?

A. Exactly.

10 Azco’s motion was dismissed by Isabelle J. of the Quebec Superior Court on May 6, 1999. That decision was upheld by the Quebec Court of Appeal on February 21, 2000.

II. Judicial History

A. Quebec Superior Court, [1999 CanLII 11910 (QC CS)](https://www.canlii.org/en/qc/qccs/doc/1999/1999canlii11910/1999canlii11910.html), [1999] R.J.Q. 1497

11 Isabelle J. held that the Quebec Superior Court sitting in Bankruptcy had jurisdiction to deal with the respondent’s petition. The relevant provisions of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the “Act”), were clear and there was no need to refer to the Civil Code of Québec, S.Q. 1991, c. 64, or the Code of Civil Procedure, R.S.Q., c. C-25.

12 Azco had not argued that the bankrupt’s affairs could be more efficiently administered in British Columbia but rather that there were other “sufficient” reasons for transferring the proceeding to that province, including, in particular, certain clauses in the agreement (reproduced above) that Azco said required the dispute to be tried in British Columbia. Isabelle J. ruled that these clauses had to do with choice of law rather than choice of forum and in any event lacked an “imperative” character.

13 Isabelle J. accepted that he could transfer the proceeding to the Vancouver division of the Supreme Court of British Columbia sitting in Bankruptcy under s. 187(7) of the Act. There was no need to turn to the specific rules governing forum non conveniens set out in art. 3135 of the Civil Code of Québec. Having regard to all the circumstances, however, Isabelle J. did not think a transfer of proceedings would be justified. The legislator bestowed on the trustee the power to manage the affairs of the bankrupt in the most practical and economical manner possible. Vancouver may be convenient for the appellant, but the interests of all the creditors prevailed over the convenience of only one creditor. Accordingly, the appellant’s motion was dismissed.

B. Quebec Court of Appeal, [2000 CanLII 9546 (QC CA)](https://www.canlii.org/en/qc/qcca/doc/2000/2000canlii9546/2000canlii9546.html), [2000] R.J.Q. 392

14 A unanimous Court of Appeal dismissed Azco’s appeal. Robert J.A., concurred in by Proulx and Rousseau-Houle JJ.A., agreed that the Quebec Superior Court had jurisdiction over Eagle’s bankruptcy, noting that the company was carrying on business in Quebec when the bankruptcy proceedings were initiated. The petition against Azco was authorized by s. 30(1) (d) of the Act which empowers a trustee to bring legal proceedings relating to the property of the bankrupt with the permission of the inspectors.

15 Robert J.A. agreed with the motions judge that it would be most efficient and equitable to have a single court oversee the administration of the bankrupt estate despite the fact that a centralized bankruptcy might present certain difficulties and inconveniences for parties residing in provinces far from the bankruptcy forum. However, like Isabelle J., he noted that the courts retain some discretion under s. 187(7) to transfer a case to another division where there is proof that the bankrupt’s estate would be administered more economically or where some other sufficient reason exists. In the present case, Robert J.A. found that Azco had not demonstrated it would be more economical to proceed before the bankruptcy court in British Columbia. As to other circumstances, Robert J.A. ruled that the contractual terms that Azco characterized as choice of forum clauses did not bind the trustee in bankruptcy, who represented and acted for the benefit of all creditors. The clauses in question were not exclusive jurisdiction clauses but even if they were, the Act is a law of public order and its provisions must be rigorously applied given the consequences for the rights of both debtors and creditors.

III. Relevant Statutory Provisions

16 Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3

2. (1) In this Act,

“locality of a debtor” means the principal place

(a) where the debtor has carried on business during the year immediately preceding his bankruptcy,

(b) where the debtor has resided during the year immediately preceding his bankruptcy, or

(c) in cases not coming within paragraph (a) or (b), where the greater portion of the property of the debtor is situated;

30. (1) The trustee may, with the permission of the inspectors, do all or any of the following things:

(d) bring, institute or defend any action or other legal proceeding relating to the property of the bankrupt;

43. . . .

(5) The petition shall be filed in the court having jurisdiction in the judicial district of the locality of the debtor.

72. (1) The provisions of this Act shall not be deemed to abrogate or supersede the substantive provisions of any other law or statute relating to property and civil rights that are not in conflict with this Act, and the trustee is entitled to avail himself of all rights and remedies provided by that law or statute as supplementary to and in addition to the rights and remedies provided by this Act.

73. (1) The following courts are invested with such jurisdiction at law and in equity as will enable them to exercise original, auxiliary and ancillary jurisdiction in bankruptcy and in other proceedings authorized by this Act during their respective terms, as they are now, or may be hereafter, held, and in vacation and in chambers:

(b) in the Province of Quebec, the Superior Court;

(c) in the Provinces of Nova Scotia and British Columbia, the Supreme Court;

187. . . .

(7) The court, on satisfactory proof that the affairs of the bankrupt can be more economically administered within another bankruptcy district or division, or for other sufficient cause, may by order transfer any proceedings under this Act that are pending before it to another bankruptcy district or division.

188. (1) An order made by the court under this Act shall be enforced in the courts having jurisdiction in bankruptcy elsewhere in Canada in the same manner in all respects as if the order had been made by the court hereby required to enforce it.

(2) All courts and the officers of all courts shall severally act in aid of and be auxiliary to each other in all matters of bankruptcy, and an order of one court seeking aid, with a request to another court, shall be deemed sufficient to enable the latter court to exercise, in regard to the matters directed by the order, such jurisdiction as either the court that made the request or the court to which the request is made could exercise in regard to similar matters within its jurisdiction.

Bankruptcy and Insolvency General Rules, C.R.C., c. 368 (am. SOR/98-240)

3. In cases not provided for in the Act or these Rules, the courts shall apply, within their respective jurisdictions, their ordinary procedure to the extent that that procedure is not inconsistent with the Act or these Rules.

Civil Code of Québec, S.Q. 1991, c. 64

3135. Even though a Québec authority has jurisdiction to hear a dispute, it may exceptionally and on an application by a party, decline jurisdiction if it considers that the authorities of another country are in a better position to decide.

3136. In personal actions of a patrimonial nature, a Québec authority has jurisdiction where

(5) the defendant submits to its jurisdiction.

However, a Québec authority has no jurisdiction where the parties, by agreement, have chosen to submit all existing or future disputes between themselves relating to a specified legal relationship to a foreign authority or to an arbitrator, unless the defendant submits to the jurisdiction of the Québec authority.

IV. Analysis

17 Parliament has conferred on the bankruptcy court the capacity and authority to exercise “original, auxiliary and ancillary jurisdiction in bankruptcy and in other proceedings authorized by this Act” (s. 183(1)). On the face of it, the intent of this provision is to confer on the bankruptcy court powers and duties co-extensive with Parliament’s jurisdiction over “Bankruptcy” under s. 91(21) of the Constitution Act, 1867 except insofar as that jurisdiction has been limited or specifically assigned elsewhere by Parliament itself.

18 While the appellant’s motion simply asked that the dispute be transferred to the Vancouver Division of the Supreme Court of British Columbia sitting in Bankruptcy (thereby appearing to concede that the dispute is properly dealt with as a bankruptcy matter), its motion also contended that the trustee’s claims are “exclusively contractual” (para. 6) and that the “Superior Court of the Bankruptcy Division of Hull does not have jurisdiction to hear this contractual claim against Azco” (para. 20). Moreover, much of its oral argument suggested that the dispute ought to be tried in the ordinary civil courts. In addition the appellant takes the position that Quebec is not the convenient forum to deal with this dispute, and that the Quebec Superior Court sitting in Bankruptcy lacks a sufficiently long arm to require Azco to take its witnesses east to litigate. The proper forum, it says, is British Columbia because there is no substantial connection at all between this case and the Province of Quebec.

19 It is convenient to address the legal issues raised by the appellant in the following order:

1. Was the bankruptcy petition properly filed in the Hull Division of the Quebec Superior Court sitting in Bankruptcy?

2. If so, did that court thereby acquire jurisdiction to deal with matters affecting the bankrupt estate arising in British Columbia?

3. If so, are contract claims nevertheless excluded from federal bankruptcy jurisdiction?

4. If not, does this particular contract claim come within the bankruptcy court’s jurisdiction?

5. Even if fully clothed with jurisdiction to hear this case, should the bankruptcy court in Hull nevertheless have transferred the file to the court exercising counterpart bankruptcy jurisdiction in Vancouver?

1. Was the Bankruptcy Petition Properly Filed in the Hull Division of the Quebec Superior Court Sitting in Bankruptcy?

20 Parliament decided to utilize the superior courts of the provinces and territories to exercise bankruptcy jurisdiction (s. 183). It has long been established that, with respect to matters coming within the enumerated heads of s. 91 of the Constitution Act, 1867, “the Parliament of Canada may give jurisdiction to provincial courts and regulate proceedings in such courts to the fullest extent”: Attorney-General for Alberta v. Atlas Lumber Co., 1940 CanLII 33 (SCC), [1941] S.C.R. 87, per Rinfret J., at p. 100. The courts mentioned in s. 183 retain their character as superior courts of inherent jurisdiction, but will be referred to here, perhaps with some imprecision of language, as the bankruptcy courts.

21 A creditor who wishes to obtain a receiving order against a debtor is required to file a bankruptcy petition “in the court having jurisdiction in the judicial district of the locality of the debtor” (s. 43(5)).

22 The “locality of the debtor” is defined under s. 2(1) as the “principal place”

(a) where the debtor has carried on business during the year immediately preceding his bankruptcy,

(b) where the debtor has resided during the year immediately preceding his bankruptcy, or

(c) in cases not coming within paragraph (a) or (b), where the greater portion of the property of the debtor is situated;

23 Section 43(5) expresses a rule of jurisdiction that apportions among the courts named in s. 183(1) judicial power over the adjudication of bankruptcy petitions. The evidence was that Eagle carried on business in Quebec even though it had not obtained a licence to do so. The agreements between Azco and Eagle (and the promissory notes on which Azco’s counterclaim is based) recite that Eagle has an office at 212 Labrosse Boulevard, Gatineau, Quebec. The same address appears on its corporate letterhead. Azco’s Vice-President of Finance testified that his meetings with respect to the financing were held at that office. There is no suggestion that Eagle vacated the premises prior to its bankruptcy, or that it had any other offices in Canada.

24 It appears that Eagle’s only connection to British Columbia is that the agreements mentioned above refer to the law of that province. It is clear that s. 43(5) would not have permitted the filing of the bankruptcy petition in British Columbia on such a ground. Nothing in the evidence, in my view, suggests that the bankruptcy court in Hull lacked subject matter jurisdiction over the petition and personal jurisdiction over Eagle when it made the receiving order on September 12, 1997.

2. Did the Bankruptcy Court Thereby Acquire Jurisdiction to Deal With Matters Affecting the Bankrupt Estate Arising in British Columbia?

25 The Act establishes a nationwide scheme for the adjudication of bankruptcy claims. As Rinfret J. pointed out in Boily v. McNulty, 1927 CanLII 50 (SCC), [1928] S.C.R. 182, at p. 186: [translation] “This is a federal statute that concerns the whole country, and it considers territory from that point of view”. The national implementation of bankruptcy decisions rendered by a court within a particular province is achieved through the cooperative network of superior courts of the provinces and territories under s. 188: In re Mount Royal Lumber & Flooring Co. (1926), 1927 CanLII 842 (QC CS), 8 C.B.R. 240 (Que. C.A.), per Rivard J.A., at p. 246, [translation] “The Bankruptcy Act is federal and the orders of the Quebec Superior Court sitting as a bankruptcy court under that Act are enforceable in Ontario”. See also: Associated Freezers of Canada Inc. (Trustee of) v. Retail, Wholesale Canada, Local 1015 (1996), 1996 CanLII 5624 (NS CA), 39 C.B.R. (3d) 311 (N.S.C.A.), at p. 314, and Kansa General International Insurance Co. (Liquidation de), 1998 CanLII 12824 (QC CA), [1998] R.J.Q. 1380 (C.A.), at p. 1389.

26 The trustees will often (and perhaps increasingly) have to deal with debtors and creditors residing in different parts of the country. They cannot do that efficiently, to borrow the phrase of Idington J. in Stewart v. LePage (1916), 1916 CanLII 626 (SCC), 53 S.C.R. 337, at p. 345, “if everyone is to be at liberty to interfere and pursue his own notions of his rights of litigation”. Stewart dealt with the winding up of a federally incorporated trust company in British Columbia. As a result of the winding up, a client in Prince Edward Island instituted a proceeding in the superior court of that province for a declaration that certain moneys held by the bankrupt trust company were held in trust and that the bankrupt trust company should be removed as trustee. This Court held that the dispute, despite its strong connection to Prince Edward Island, could not be brought before the court of that province without leave of the Supreme Court of British Columbia. Anglin J. commented at p. 349:

No doubt some inconvenience will be involved in such exceptional cases as this where the winding-up of the company is conducted in a province of the Dominion far distant from that in which persons interested as creditors or claimants may reside. But Parliament probably thought it necessary in the interest of prudent and economical winding-up that the court charged with that duty should have control not only of the assets and property found in the hands or possession of the company in liquidation, but also of all litigation in which it might be involved. The great balance of convenience is probably in favour of such single control though it may work hardship in some few cases.

27 Stewart was, as stated, a winding-up case, but the legislative policy in favour of “single control” applies as well to bankruptcy. There is the same public interest in the expeditious, efficient and economical clean-up of the aftermath of a financial collapse. Section 188(1) ensures that orders made by a bankruptcy court sitting in one province can and will be enforced across the country.

28 I have concluded that the jurisdiction of the Quebec Superior Court sitting in Bankruptcy was properly invoked by the petitioning creditors in this case but counsel for the appellant company says that his client, with its office in British Columbia, is not within its reach. The argument, in part, is that whatever the power of Parliament to confer national jurisdiction on a provincial superior court, that court is nevertheless provincially constituted, and for service of process its long arm statute must be complied with. The factual record does not show precisely how service of the trustee’s petition was effected on the appellant, but if the appellant had any concerns regarding the proprieties of service of the petition to initiate proceedings against it, such concerns were waived when Azco did not raise them in its motion brought in Hull. A good deal of time was occupied on the appeal with arguments about how a Quebec court could acquire in personam jurisdiction over a corporation resident in British Columbia, and whether the Quebec rules for service ex juris applied. The argument that the Quebec Superior Court sitting in Bankruptcy cannot exercise in personam jurisdiction over creditors in another province under the Act is rejected for the reasons of national jurisdiction already mentioned. Any objections regarding service of process are answered by the fact that Azco not only appeared in Quebec but invoked the jurisdiction of the Quebec Superior Court sitting in Bankruptcy to transfer the proceedings pursuant to s. 187(7) of the Act to the bankruptcy court sitting in Vancouver. Any remaining issue with respect to in personam jurisdiction was thereby waived.

29 Azco did not, of course, waive its objection to jurisdiction over the subject matter of this particular dispute. That was a major point in its motion. I turn now to that issue.

3. Are Contract Claims Nevertheless Excluded From Federal Bankruptcy Jurisdiction?

30 The appellant’s motion, as stated, argued that the trustee’s claims against it are “exclusively contractual in nature” (para. 6) and that “[t]he Superior Court of the Bankruptcy Division of Hull does not have jurisdiction to hear this contractual claim against Azco” (para. 20). The theory underlying these contentions seems to be that contract claims relate to “Property and Civil Rights” within the meaning of s. 92(13) of the Constitution Act, 1867 and on that account lie outside the jurisdiction of the bankruptcy court. At para. 42 of its factum, for example, the appellant argues:

[translation] Contrary to what the Court of Appeal affirms, the trustee’s claim is therefore purely contractual in nature, under the civil law. It is not a remedy specifically provided for under the BIA such as the application to have preferential payments declared void (see sections 91 to 100 BIA). The mere fact that the plaintiff is a trustee does not alter the nature of the claim and does not turn it into a bankruptcy dispute.

31 Most bankruptcy issues, of course, present a property and civil rights aspect. It is true, however, that some of the decided cases which deny jurisdiction to the bankruptcy court do so on grounds that have a constitutional flavour, e.g., In re Morris Lofsky (1947), 1947 CanLII 71 (ON CA), 28 C.B.R. 164 (Ont. C.A.), per Roach J.A., at p. 167; Sigurdson v. Fidelity Insurance Co. (1980), 1980 CanLII 404 (BC CA), 35 C.B.R. (N.S.) 75 (B.C.C.A.), at p. 102; Re Holley (1986), 1986 CanLII 2586 (ON CA), 54 O.R. (2d) 225 (C.A.); In re Ireland (1962), 5 C.B.R. (N.S.) 91 (Que. Sup. Ct.), per Bernier J., at p. 94, and Falvo Enterprises Ltd. v. Price Waterhouse Ltd. (1981), 1981 CanLII 1845 (ON SC), 34 O.R. (2d) 336 (H.C.).

32 It is therefore necessary to come to an understanding of what is included in the subject matter of “Bankruptcy” within the meaning of s. 91(21) of the Constitution Act, 1867.

33 In In re The Moratorium Act (Sask.), 1955 CanLII 78 (SCC), [1956] S.C.R. 31, it was stated by Rand J., at p. 46, that:

Bankruptcy is a well understood procedure by which an insolvent debtor’s property is coercively brought under a judicial administration in the interests primarily of the creditors.

34 The core concept of coercive administration appeared early in our bankruptcy jurisprudence. In Union St. Jacques de Montreal v. Bélisle (1874), L.R. 6 P.C. 31, Lord Selborne, speaking at p. 36 of general laws governing bankruptcy and insolvency, said: “The words describe in their known legal sense provisions made by law for the administration of the estates of persons who may become bankrupt or insolvent, according to rules and definitions prescribed by law, including of course the conditions in which that law is to be brought into operation, the manner in which it is to be brought into operation, and the effect of its operation”.

35 More helpful still was Lord Selborne L.C.’s description of bankruptcy in the context of the English Act in Ellis v. Silber (1872), L.R. 8 Ch. App. 83, at p. 86:

That which is to be done in bankruptcy is the administration in bankruptcy. The debtor and the creditors, as the parties to the administration in bankruptcy, are subject to that jurisdiction. The trustees or assignees, as the persons intrusted with that administration, are subject to that jurisdiction. The assets which come to their hands and the mode of administering them are subject to that jurisdiction; and there may be, and I believe are, some special classes of transactions which, under special clauses of the Acts of Parliament, may be specially dealt with as regards third parties. But the general proposition, that whenever the assignees or trustees in bankruptcy or the trustees under such deeds as these have a demand at law or in equity as against a stranger to the bankruptcy, then that demand is to be prosecuted in the Court of Bankruptcy, appears to me to be a proposition entirely without the warrant of anything in the Acts of Parliament, and wholly unsupported by any trace or vestige whatever of authority. [Emphasis added.]

36 Despite the fact that England is a unitary state without the constitutional limitations imposed by our division of powers, the courts in Canada have generally hewn ever since 1874 to the basic dividing line between disputes related to the administration of the bankrupt estate and disputes with “strangers to the bankruptcy”. The principle is that if the dispute relates to a matter that is outside even a generous interpretation of the administration of the bankruptcy, or if the remedy is not one contemplated by the Act, the trustee must seek relief in the ordinary civil courts. Thus in the Quebec case of Re Ireland, supra, the trustee brought proceedings to determine who had the right to proceeds of insurance policies taken out by the trustee on properties of the bankrupt estate. Bernier J. concluded that the Quebec Superior Court sitting in Bankruptcy lacked jurisdiction over the subject matter of the dispute. The controversy raised purely civil law questions and nothing in the Act conferred on the bankruptcy court a special jurisdiction to entertain these matters. Similar arguments prevailed in Cry-O-Beef Ltd./Cri-O-Bœuf Ltée (Trustees of) v. Caisse Populaire de Black-Lake (1987), 1987 CanLII 761 (QC CA), 66 C.B.R. (N.S.) 19 (Que. C.A.); In re Martin (1953), 1953 CanLII 400 (ON SC), 33 C.B.R. 163 (Ont. S.C.), at p. 169; In re Reynolds (1928), 1928 CanLII 422 (ON SC), 10 C.B.R. 127 (Ont. S.C.), at p. 131; Re Galaxy Interiors Ltd. (1971), 1971 CanLII 486 (ON SC), 15 C.B.R. (N.S.) 143 (Ont. S.C.); Mancini (Trustee of) v. Falconi (1987), 65 C.B.R. 246 (Ont. S.C.), and Re Morris Lofsky, supra, at p. 169.

37 The Quebec Court of Appeal has perhaps led the argument for a more expansive interpretation of what disputes properly come under the bankruptcy umbrella and can therefore properly be litigated in the bankruptcy court: Geoffrion v. Barnett, [1970] C.A. 273; Arctic Gardens inc. (Syndic de), 1989 CanLII 1261 (QC CA), [1990] R.J.Q. 6; and Excavations Sanoduc inc. v. Morency, 1991 CanLII 3680 (QC CA), [1991] R.D.J. 423. See also the dissenting judgment of LeBel J.A., as he then was, in Cry-O-Beef Ltd./Cri-O-Bœuf Ltée, supra, and In re Atlas Lumber Co. v. Grier and Sons Ltd. (1922), 3 C.B.R. 226 (Que. Sup. Ct.); but the push is not confined to Quebec: In re Maple Leaf Fruit Co. (1949), 1949 CanLII 273 (NS CA), 30 C.B.R. 23 (N.S.S.C.); Re Westam Developments Ltd. (1967), 1967 CanLII 496 (BC CA), 10 C.B.R. (N.S.) 61 (B.C.C.A.), at p. 65; Re M. B. Greer & Co. (1953), 1953 CanLII 399 (ON SC), 33 C.B.R. 69 (Ont. S.C.), at p. 70; Re M.P. Industrial Mills Ltd. (1972), 17 C.B.R. 226 (Man. Q.B.).

38 It seems to me that the decided cases recognize that the word “Bankruptcy” in s. 91(21) of the Constitution Act, 1867 must be given a broad scope if it is to accomplish its purpose. Anything less would unnecessarily complicate and undermine the economical and expeditious winding up of the bankrupt’s affairs. Creation of a national jurisdiction in bankruptcy would be of little utility if its exercise were continually frustrated by a pinched and narrow construction of the constitutional head of power. The broad scope of authority conferred on Parliament has been passed along to the bankruptcy court in s. 183(1) of the Act, which confers a correspondingly broad jurisdiction.

39 There are limits, of course. If the trustee’s claim is in relation to a stranger to the bankruptcy, i.e. “persons or matters outside of [the] Act” (Re Reynolds, supra, at p. 129) or lacks the “complexion of a matter in bankruptcy” (Re Morris Lofsky, supra, at p. 169) it should be brought in the ordinary civil courts and not the bankruptcy court. However, claims for specific property may clearly be advanced in the bankruptcy courts (Re Galaxy Interiors, supra, and Sigurdson, supra), as can claims for relief specifically granted by the Act (Re Ireland, supra, and Re Atlas Lumber, supra). That said, it is sometimes difficult to discern the particular “golden thread” running through the cases. L. W. Houlden and G. B. Morawetz observe:

There has been a great deal of litigation on this issue, and the cases are not always easy to reconcile. The difficulty flows from the division of constitutional powers in Canada, bankruptcy and insolvency being a federal power, and property and civil rights and the administration of justice being provincial powers.

(Bankruptcy and Insolvency Law of Canada (3rd ed. (looseleaf)), at I§4)

40 The short answer to the “property and civil rights” argument, however, is that the appellant poses the wrong question. The issue is whether the contractual dispute between it and the respondent trustee properly relates to the bankruptcy. If so, the fact it also has a property and civil rights aspect does not in any way impair the bankruptcy court’s jurisdiction.

4. Does This Particular Contract Claim Come Within the Bankruptcy Court’s Jurisdiction?

41 In this case, the respondent trustee, with the permission of the inspectors, is instituting a “legal proceeding” in the bankruptcy court under s. 30(1)(d) “relating to the property of the bankrupt”. In addition to the Azco and Sanou shares, the trustee says the definition of “property” in s. 2 includes “things in action” which, it is argued, includes the trustee’s monetary claims.

42 As to the shares and warrants, the trustee alleges in para. 108 of its petition that Azco is “acknowledged to be the nominal owner of 100% of Sanou Mining Corporation” which owns West African Gold & Exploration S.A., which in turn runs the mining concessions in Mali. The allegation, in effect, is that Azco holds the Sanou shares and warrants that rightfully belong to the bankrupt estate and is in a position to transfer them to the trustee if required to do so by the bankruptcy court.

43 As discussed above, it cannot plausibly be argued that the bankruptcy court lacks subject matter jurisdiction over the dispute because it is a contract case. The objection, more narrowly defined, is whether the bankruptcy court lacks jurisdiction because (i) the appellant is properly considered a “stranger to the bankruptcy”, or (ii) the bankruptcy court cannot award the remedy which the trustee seeks.

(i) Is the Appellant a “Stranger to the Bankruptcy”?

44 If a potential defendant is a “stranger” to the bankruptcy, the bankruptcy court may have no subject matter jurisdiction over the dispute (because it is not part of the bankruptcy) even though the “stranger” resides within the territorial jurisdiction of the court.

45 At the time of the trustee’s petition, the appellant had filed no proof of claim in the bankruptcy. It seems to have adopted a “come and get me approach”, that is to say, it would file a claim only if claimed against by the trustee. Eventually the trustee did claim against it by way of the January 18, 1999 petition and the appellant did give notice of its counterclaim in its February 24, 1999 motion, including the fact it held promissory notes for US$3,844,858 signed by the bankrupt, payable on demand, constituting potential obligations now inherited by the trustee.

46 In a decision released concurrently, Holt Cargo Systems Inc. v. ABC Containerline N.V. (Trustees of), [2001] 3 S.C.R. 907, 2001 SCC 90, we uphold a decision of the Federal Court of Canada to dispose of the claims of maritime lienholders against a ship whose owner was adjudged bankrupt after the ship was arrested but before the in rem action had proceeded to judgment. We concluded that the Federal Court did not lose subject matter jurisdiction by virtue of the subsequent bankruptcy of the shipowner. We held that the Federal Court could have stayed its proceedings in deference to the bankruptcy court but was not, in the circumstances, obliged to do so.

47 The issue here is somewhat different. The appellant is resisting a claim by the trustee in bankruptcy and threatening to bring a counterclaim against the bankrupt estate based on the same set of commercial agreements. The appellant sought only to have the proceedings transferred to a different division of the bankruptcy court within Canada.

48 In Re Morris Lofsky, supra, the Ontario Court of Appeal dealt with a case where the trustee sought a declaration that the transfer of an automobile from the bankrupt to his wife was fraudulent and void as against the trustee and that it formed part of the property of the bankrupt. The wife resisted the claim on the ground that the automobile never belonged to the bankrupt (even though it was registered in his name). Roach J.A., at p. 169, found the wife was a stranger to the bankruptcy:

In my opinion, it must be concluded that the issue between the trustee and the appellant is not a matter in bankruptcy and that it is purely a matter of property and civil rights. It has none of the elements that would bring it within the former. No question as between debtor and creditor here arises in the distribution of a bankrupt estate. The appellant does not claim title to the automobile through the bankrupt. Indeed she says that the bankrupt never had title and that she was always the owner. I cannot think of any aspect of the issue that gives it the complexion of a matter in bankruptcy unless perhaps this, that the bankrupt pending the bankruptcy caused the new motor vehicle permit to be issued in her name. That does not make the issue one in bankruptcy when the sole question is who, as between the bankrupt and the appellant, was always the true owner.

See also Re Reynolds, supra, at p. 131.

49 On the record before us, however, the appellant takes the position that it is the largest creditor of the bankrupt estate and that it will “with certainty” counterclaim in answer to the trustee’s petition. The trustee, for its part, regards the appellant as the biggest debtor of the bankrupt estate. Far from being a “stranger” to the bankruptcy, Azco is potentially the most significant player in the role of either creditor or debtor, as the case may be.

(ii) Does the Bankruptcy Court Have Jurisdiction to Grant the Remedy Sought by the Trustee?

50 It is well established that the bankruptcy court does not have the general jurisdiction of a civil court to award damages in breach of contract cases. It is restricted to the jurisdiction and remedies contemplated by the Act. In Sigurdson, supra, the trustee in bankruptcy sued two former directors of the bankrupt for fraud in the Supreme Court of British Columbia. During the course of its reasons on another point, the Court of Appeal remarked that if the trustee had sued in the bankruptcy court “he would have been in the wrong court” as “[h]e must use the ordinary civil courts to sue for damages” (p. 102). See also Re Ireland, supra.

51 In my view, however, the trustee’s claim here is not properly characterized as a simple claim in damages, even though the trustee has attempted to place a monetary value on the shares which it says belong to the bankrupt estate but which the appellant, it says, wrongfully withholds. I do not think the bankruptcy court is precluded from considering an order that substitutes money for the claimed property in circumstances where the claimed property cannot be delivered up. The bulk of the trustee’s claim, it will be recalled, is for 125,000 shares of Azco itself, plus 3.5 million shares of Sanou and 4 million warrants of Sanou, which the trustee says is wholly controlled by the appellant. The trustee’s petition states in para. 65:

The Debtor/Company is also entitled to receive 3,500,000 shares of Sanou and 4,000,000 warrants of said Sanou, as per the terms of the Agreement, the whole as it has been acknowledged by the Respondent itself in their annual report to United States Securities and Exchange commission for the fiscal year ending June 30, 1997, filed as Exhibit R-24;

52 As to the Azco shares, the trustee states in para. 101 of its petition that it claims “125,000 shares of Azco Mining Corporation which had a value at 2.70$ Cdn dollars per share”.

53 Equally significantly, the appellant acknowledges that the gist of the action against it is the delivery up of the shares. It says at para. 25 of its factum:

[translation] It seems that the trustee’s claim is a real action rather than a personal one since the trustee is primarily seeking the rights to 125,000 shares of Azco and 3,500,000 shares and 4,000,000 warrants of Sanou (see in particular paragraphs 95, 98, 99 and 102 of the trustee’s petition).

54 The parties therefore seem to agree, despite some obfuscating language in the trustee’s petition, that the bulk of the trustee’s claim is properly characterized as a claim to specific property of the bankrupt which is being wrongfully withheld by the appellant. As such, the trustee is entitled to claim the shares and warrants (s. 17(1)) and, with the permission of the inspectors (which it obtained) to bring a legal proceeding in relation thereto in the bankruptcy court (s. 30(1)(d)). The trustee, relying on these statutory provisions and remedies, clearly brings its claim within the Act. See Re Galaxy Interiors, supra, per Houlden J., at p. 144; Mancini, supra, per Catzman J., at pp. 250-51; Re Atlas Lumber, supra, per Rinfret J., at p. 234.

55 It will be for the bankruptcy court in Hull to scrutinize the petition when the facts are known and the parties’ positions on the issues are clarified to determine whether any particular element of the trustee’s multiple claims falls outside its jurisdiction. For present purposes, it is sufficient to hold that the bulk of the trustee’s claim is cognizable in bankruptcy for the reasons previously discussed. On the present state of the record (this being a preliminary motion), we can go no further.

5. Even if Fully Clothed with Jurisdiction to Hear This Case, Should the Bankruptcy Court in Hull Nevertheless Have Transferred the File to the Court Exercising Counterpart Bankruptcy Jurisdiction in Vancouver?

56 If persuaded that the affairs of the bankrupt could be (i) more economically administered in another bankruptcy district or division or (ii) for “other sufficient cause”, the bankruptcy court is authorized to transfer “any proceedings” pending before it to the other bankruptcy district or division (s. 187(7)).

57 Section 187(7) provides a method for transferring proceedings between the various bankruptcy courts in Canada. As discussed below, it raises different issues than the specific international situation dealt with in Holt Cargo Systems, supra, released concurrently.

58 The motions judge exercised his discretion against making a transfer order in this case. The appellant must therefore show an error of law or principle or failure to take into consideration a major element in the determination of the case: Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] 2 S.C.R. 561, at p. 588. The scope of this discretion in bankruptcy cases was recognized in Re Lions D’Or Ltée (1965), 8 C.B.R. (N.S.) 171 (Que. Sup. Ct.), and Re M. Pollack Ltée (1979), 30 C.B.R. (N.S.) 256 (Que. Sup. Ct.).

59 The appellant says the courts below erred in both law and principle. They erred in law, it argues, because art. 3148 of the Civil Code of Québec required the bankruptcy court to decline jurisdiction in light of the “choice of forum” clauses, and they erred in principle because there is no substantial connection between the dispute and the Province of Quebec. In this regard, it relies on Bourque Consumer Electronics Inc. (Syndic de), J.E. 91-1040 (Sup. Ct.), and Amchem Products Inc. v. British Columbia (Workers’ Compensation Board), 1993 CanLII 124 (SCC), [1993] 1 S.C.R. 897.

(i) Choice of Forum Clause

60 The appellant’s point is that the applicable rules are found in the Civil Code of Québec, and in particular art. 3148 which provides in part that:

. . . a Québec authority has no jurisdiction where the parties, by agreement, have chosen to submit all existing or future disputes between themselves relating to a specified legal relationship to a foreign authority or to an arbitrator, unless the defendant submits to the jurisdiction of the Québec authority.

61 The choice of forum objection fails, with respect, both on the facts and on the law. In terms of facts, the only relevant agreements are those to which Eagle was a party. Clause 28 in the June 7, 1996 financing agreement and clause 20 of the management services agreement are both no more than choice of law provisions. The Quebec courts are perfectly able to apply the law of British Columbia. The import of clause 17 of the West African Gold & Exploration S.A. debenture of August 9, 1996 is more obscure, but as Azco is not a party to the debenture and therefore cannot be sued upon it, its terms are irrelevant.

62 As to the legal issue, the question is whether arts. 3148 or 3135 of the Civil Code of Québec have any application to this proceeding at all. These provisions will only apply in bankruptcy court “[i]n cases not provided for in the Act or these Rules” (Bankruptcy and Insolvency General Rules, s. 3). The fact is that s. 187(7) specifically provides that a transfer will be ordered only where there is satisfactory proof that a proceeding will be “more economically administered” in another division or district, which the appellant did not allege, or “for other sufficient cause”. The appellant argues that such general words need to be “supplemented” by the more specific provisions of the Civil Code of Québec. But this is incorrect. Resort is to be had to the provincial rules only “[i]n cases not provided for”. Here, provision has been made. The door is therefore not open to these particular provisions of the Civil Code of Québec. This interpretation of s. 3 is not only inevitable, it is desirable. The Civil Code of Québec applies across a vast range of subjects. When s. 187(7) speaks of “sufficient cause”, it does so in the specific context of bankruptcy.

63 Leaving aside, then, the inapplicable directives of the Civil Code of Québec, the question is whether a choice of forum clause would amount to “sufficient cause” for the purpose of s. 187(7) to the extent that it would be an error of law for the motions judge to have declined to give it effect in the circumstances of this case. In my view a choice of forum clause (where there really is one) ought to be taken into careful consideration by a motions judge but it is not binding: J.-G. Castel, Canadian Conflict of Laws (4th ed. 1997), at pp. 262-63. See Sarabia v. “Oceanic Mindoro” (The) (1996), 1996 CanLII 1537 (BC CA), 26 B.C.L.R. (3d) 143 (C.A.), per Huddart J.A., at p. 153 (leave to appeal refused, [1997] 2 S.C.R. xiv); Volkswagen Canada Inc. v. Auto Haus Frohlich Ltd., 1985 ABCA 223, [1986] 1 W.W.R. 380 (Alta. C.A.), per Kerans J.A., at p. 381; Ash v. Lloyd’s Corp. (1991), 1991 CanLII 7347 (ON SC), 6 O.R. (3d) 235 (Gen. Div.), aff’d (1992), 1992 CanLII 7659 (ON CA), 9 O.R. (3d) 755 (C.A.) (leave to appeal refused, [1992] 3 S.C.R. v); Maritime Telegraph and Telephone Co. v. Pre Print Inc. (1996), 1996 NSCA 45, 131 D.L.R. (4th) 471 (N.S.C.A.).

(ii) Public Policy Considerations

64 It could be argued that the public policy favouring a “single control” of bankruptcy proceedings and opposition to their fragmentation demands that a choice of forum clause receive lesser effect in bankruptcy than in the context of ordinary commercial litigation: Industrial Packaging Products Co. v. Fort Pitt Packaging International, Inc., 161 A.2d 19 (Pa. 1960); In re Treco, 239 B.R. 36 (S.D.N.Y. 1999), aff’d 240 F.3d 148 (2d Cir. 2001).

65 In Re Moratorium Act, supra, Rand J. discussed important “public policy” objectives of bankruptcy legislation, at p. 46:

To this proceeding not only a personal stigma may attach but restrictions on freedom in future business activity may result. The relief to the debtor consists in the cancellation of debts which, otherwise, might effectually prevent him from rehabilitating himself economically and socially.

See also Industrial Acceptance Corp. v. Lalonde, 1952 CanLII 2 (SCC), [1952] 2 S.C.R. 109, at p. 120.

66 In his treatise on bankruptcy, Professor Albert Bohémier states on the purpose of the Act:

[translation] The purpose of the Bankruptcy Act is to protect the debtor, his or her creditors and the public interest. These objectives have always been present but to varying degrees. It can be stated with certainty that the more a society promotes credit and therefore debt, the more the legislation will tend to give priority to alleviating the lot of honest and hapless debtors. A scheme based on debt must include a self-regulating system so that defaulting debtors may eventually be reintegrated into the system and become productive elements once again.

(Faillite et insolvabilité (1992), vol. 1, at p. 48)

67 The implementation of these public policies might be expected to take priority over private “choice of forum” agreements where the two come into conflict, as indeed Robert J.A. concluded in the Quebec Court of Appeal. A similar position is expressed in I. F. Fletcher, Insolvency in Private International Law (1999), at p. 47, fn. 73:

[P]rivate contractual arrangements between parties cannot prevail over the exercise of bankruptcy jurisdiction, which belongs to the realm of public policy, serving a wider spread of interests including, ultimately, those of society at large.

In the United States, however, there is a competing body of judicial opinion that a trustee in bankruptcy who sues on an agreement containing a forum selection clause should, as a general rule, be bound by that clause to the same extent as the parties thereto: see Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d 190 (3d Cir. 1983); In re Diaz Contracting, Inc., 817 F.2d 1047 (3d Cir. 1987), and Hays and Co. v. Merrill Lynch, 885 F.2d 1149 (3d Cir. 1989).

68 In my view, for the reasons previously mentioned, the choice of forum clause would be a significant factor under s. 187(7) but not, in the context of the public policies expressed in the Act, a controlling factor.

69 In light of my conclusion that the appellant does not have the benefit of a “choice of forum” clause, I need not undertake the exercise of considering whether in this case there is any conflict between private choice and public interest, and if so, how “choice of forum” considerations should be balanced in this case against Amchem, supra, and public interest factors within the framework of s. 187(7) of the Act.

70 The bottom line is that the appellant is unable to show that the motions judge committed any error of law in declining to transfer the proceeding to Vancouver.

(iii) Error of Principle

71 The appellant, relying on Amchem, supra, argues that this dispute has its most real and substantial connection to British Columbia, and that the motions judge erred in principle in ignoring relevant factors in coming to the opposite conclusion.

72 Again, with respect, I do not think this position is sustainable on the law or the facts.

73 In the first place, as stated, the Amchem approach has to be applied here with full regard to the context of Canadian bankruptcy legislation. This appeal involves the allocation of a particular bankruptcy matter within a single national bankruptcy scheme created by the Act. As shown in Holt Cargo Systems, supra, consideration of the allocation of a matter having different aspects (e.g. maritime law and bankruptcy law), as between Canadian courts and foreign courts operating under quite different legislative or other schemes, may raise different problems.

74 Secondly, Amchem and its progeny involved private litigation. Here, as explained in Holt Cargo Systems, supra, there is the important public interest aspect mentioned above. The Court looks not only at the Amchem factors, but must strive to give effect to Parliament’s intent to create an economical and efficient national system for the administration of bankrupt estates, as evidenced in the Act.

75 It is in the public interest to facilitate the speedy resolution of the fallout from a financial collapse. This, as noted in Holt Cargo Systems was not present in the Amchem fact situation. In fact, there are stronger policy considerations here than in Holt Cargo Systems. That case dealt with a choice between a maritime law action in Halifax for the determination of claims of secured creditors that had already proceeded to default judgment and, as an alternative, the exercise of jurisdiction by the Quebec Superior Court sitting in Bankruptcy acting at the behest of the bankruptcy court in Belgium in a matter that was still in its early stages of organization. In those circumstances the Federal Court of Canada declined to stay the maritime law action, and its exercise of discretion was upheld by the Federal Court of Appeal and by this Court.

76 In the present case, we are confronted with a federal statute that prima facie establishes one command centre or “single control” (Stewart, supra, at p. 349) for all proceedings related to the bankruptcy (s. 183(1)). Single control is not necessarily inconsistent with transferring particular disputes elsewhere, but a creditor (or debtor) who wishes to fragment the proceedings, and who cannot claim to be a “stranger to the bankruptcy”, has the burden of demonstrating “sufficient cause” to send the trustee scurrying to multiple jurisdictions. Parliament was of the view that a substantial connection sufficient to ground bankruptcy proceedings in a particular district or division is provided by proof of facts within the statutory definition of “locality of a debtor” in s. 2(1). The trustee in that locality is mandated to “recuperate” the assets, and related proceedings are to be controlled by the bankruptcy court of that jurisdiction. The Act is concerned with the economy of winding up the bankrupt estate, even at the price of inflicting additional cost on its creditors and debtors.

77 The “balancing test” advocated by the appellant based on the Amchem factors and general principles of private international law fails to take these important public policies into account. The Quebec Superior Court sitting in Bankruptcy is, in a very real sense, sitting as a national court.

78 Finally, in point of fact, even if the principles of private international law did apply without modification for the bankruptcy context, it is difficult to discern any connection at all between the dispute and Vancouver except that Eagle signed some agreements with a choice of law clause directed to the laws of that jurisdiction. The links between the appellant and Vancouver are not particularly strong. It has, amongst other offices, a Vancouver address, but the bulk of the activities at issue here occurred outside British Columbia. Its key employee, Mr. Ryan Modesto, resides in the United States. The management services agreement of June 12, 1996 recites that Azco’s corporate office is in Arizona. Azco’s press release of September 17, 1996, announcing this project to the world, was issued in Arizona. Moreover there is no juridical advantage to the appellant in proceeding under the same bankruptcy regime in Vancouver as in Hull. In either case, the law of British Columbia may be applied. Vancouver may be marginally more convenient for the appellant and some of its witnesses, but that is all that can be said for it. The trustee, for its part, complains that if the appeal succeeds, it would, on the same reasoning, be required to bring other actions (unrelated to Azco) in Chicoutimi, Toronto, Halifax, Winnipeg, Charlottetown and Calgary. The trial judge has much factual support for his decision to retain the case in Hull.

79 I do not wish to be taken, however, as squeezing the life out of s. 187(7). While the facts in this case do not show “sufficient cause” to make the transfer to British Columbia, other cases may arise of course where the transfer is justifiable. Even in Stewart, supra, which established the “single control” paradigm, Anglin J. went out of his way to say that the case probably should have been heard in P.E.I. The claimants’ problem in that case is that they failed to seek leave from the court in British Columbia before launching their case in P.E.I. Just before the “single control” passage previously cited, Anglin J. says (at p. 349):

I decline to assume that upon its being shewn to the Supreme Court of British Columbia that the questions as to the existence of the trust alleged by the plaintiffs and the earmarking of certain property held by the liquidator as trust assets can be best inquired into in Prince Edward Island -- as from what is now before us would seem to be the case -- an order of transfer will not be made, preceded or accompanied by the necessary leave under section 22.

And Brodeur J. said this (at p. 352):

In this case it looks to me as if the ends of justice would be better served by having the question raised in this proceeding disposed of by the courts of Prince Edward Island. However, it was the duty of the respondents to have the leave of the court of British Columbia which they did not secure.

80 The point is that it was up to Azco to demonstrate “sufficient cause” on the facts of this case, and it failed to do so.

V. Conclusion

81 I would dismiss the appeal with costs.

Appeal dismissed with costs.

Solicitors for the appellant: Stikeman Elliott, Montréal.

Solicitors for the respondent: Gervais & Gervais, Montréal.