SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 10-19773

DATE: 2013/04/23

RE: 822878 ONTARIO LTD., carrying on business as WILSON AIR

Plaintiff

AND:

CHARLIE FIRTH AND CHARLIE FIRTH carrying on business

as BOWES AND ASSOCIATES , Defendant

BEFORE: Turnbull, J.

COUNSEL:
Sharoon J. Gill, Counsel, for the Plaintiff

Charlie Firth, self-represented.

HEARD: April 18, 2013

ENDORSEMENT

[1] The plaintiff brought a motion for a finding of contempt against the defendant for his failure to comply with two court orders relating to his obligation to attend at an examination in aid of execution and to bring the court ordered documents to that examination.

[2] The defendant filed a petition in bankruptcy the day prior to the return date of the motion. He asserts that all proceedings are therefore stayed against him pursuant to S. 69.3(1) of the Bankruptcy and Insolvency Act. That section reads as follows:

[3] S. 69.3(1): Subject to subsection (2) and sections 69.4 and 69.5, on the bankruptcy of any debtor, no creditor has any remedy against the debtor or the debtor’s property, or shall commence or continue any action, execution or other proceedings, for the recovery of a claim provable in bankruptcy, until the trustee has been discharged.

[4] In that respect, he referred the court to the case of Tucker v Jollimore, (1998) 295 C.B.R. (N.S.) 198 which was a decision of the trial division of the Nova Scotia courts.

[5] Counsel for the applicant referred the court to Neufeld v Wilson (1997), 1997 3163 (BC CA), 45 C.B.R. (3d) 180 (B.C.C.A.) which reached the opposite decision, some nine years after the Tucker decision.

[6] The issue for this court is whether this court can proceed with hearing contempt proceedings when a stay of proceedings has been issued in Bankruptcy.

[7] I have reviewed the file and do not find that the remedy sought by the plaintiffs on this motion is one which is recoverable in bankruptcy. The plaintiffs seek an order that the defendant Charles Firth be found in contempt, that a warrant of committal issue against him and an order that he be imprisoned for a period determined by the court. The remedies sought essentially are ones by which the court is urged to enforce its own orders.

[8] The same issue was considered by O’Keefe J. of the Federal Court in Long Shong Pictures (H.K.) Ltd. v NTC Entertainment Ltd. 2000 50931 (FC), 18 C.B.R.(4th)233, 6 C.P.R. (4th)506 which followed the decision in Neufeld , supra. I concur with both those decisions which held that courts must be able to enforce their decisions.

[9] Thus, the plaintiffs are granted leave to proceed with the contempt proceedings presently before this court. The matter is to be spoken to at the motions court of April 30th, 2013 to fix a date for the hearing of the motion.

[10] The costs of this motion are reserved to the motions judge who will hear the motion for contempt.

Turnbull, J.

Date: April 23, 2013