SUPERIOR COURT OF JUSTICE
IN BANKRUPTCY and INSOLVENCY
Court File No.: BK-10-01352262
Date: 20120330
Ontario
IN THE MATTER OF THE BANKRUPTCY OF
GERALD ADREIN GIROUX
OF THE CITY OF OTTAWA
IN THE PROVINCE OF ONTARIO
JOHN DEMPSTER,
DEPUTY REGISTRAR IN BANKRUPTCY
HEARD: March 14, 2012
APPEARANCES: David Brown, Trustee, Collins Barrow Brown Inc.
REASONS FOR DECISION
[ 1 ] Pursuant to the provisions of s. 49 of the Bankruptcy and Insolvency Act, R.S.C. 1985, c.B-3 (the “BIA”), Gerald Adrein Giroux (hereinafter referred to collectively as the “Bankrupt”) made an assignment in bankruptcy on April 28, 2010 (the “Bankruptcy”). Collins Barrow Brown Inc. was appointed as the Trustee (the “Trustee”). This matter comes before me as an opposed discharge hearing pursuant to the provisions of s. 172 of the BIA.
[ 2 ] The evidence of the Trustee as contained in his s. 170 report and as indicated to the Court at the hearing, is that the Trustee does not actually oppose the Bankrupt’s discharge and is actually recommending that the Bankrupt be given an absolute discharge. I appears that this is another situation where the Trustee is under the mistaken belief that he has no discretion when it comes to calculating surplus income , and that he is required to strictly enforce the mathematical calculation set out in Directive 11R2-2011 (the “Superintendents Standards”). In recent times this is becoming a common occurrence. The Trustee is under the mistaken belief that he has no discretion and must come to Court and ask the Court to fix surplus at the amounts already paid and grant an absolute discharge. In companion Reasons for Decision issued today in Re Wilson 2012 ONSC 2034 , and in Re Plamondon 2012 ONSC 1379 , I reviewed the law on this issue. The trustee does have discretion and where, as here, there is agreement between the Trustee and the Bankrupt as to the surplus income obligations, and the bankrupt has complied with that agreement, then there is nothing to mediate and the bankrupt is entitled to an absolute discharge.
[ 3 ] In his s. 170 report dated December 23, 2011 which was filed with the Office of the Superintendent in Bankruptcy, the Trustee makes the following recommendation:
“The Bankrupt is a 92 year old with dementia and is hard of hearing. The Trustee is recommending the 2 nd counselling be waived. The Bankrupt has surplus income to pay to the estate of $7,732.50. Given his age, his health issues, and that his income also supports his niece/caregiver, we recommend that the Bankrupt receive an absolute discharge.”
[ 4 ] The Trustee’s evidence is that the OSB has taken no issue with this recommendation. The Bankrupt has paid $2,832 into the estate which includes a small tax refund of $516.00. I therefore fix the surplus income obligation at the amount already paid into the estate and I grant the Bankrupt an Absolute Discharge from his bankruptcy.
March 30, 2012
John D. Dempster
Deputy Registrar
Court File No. BK-10-01352262
Date: 20120330
SUPERIOR COURT OF JUSTICE
IN BANKRUPTCY AND INSOLVENCY
IN THE MATTER OF THE BANKRUPTCY OF
GERALD ADRIEN GIROUX
OF THE CITY OF OTTAWA
IN THE PROVINCE OF ONTARIO
REASONS FOR DECISION
Released: March 30, 2012