COURT FILE NO.: 33-2391513

DATE: 2021/04/28

ONTARIO

SUPERIOR COURT OF JUSTICE

IN BANKRUPTCY and INSOLVENCY

IN THE MATTER OF THE BANKRUPTCY OF

THOMAS GREGORY ASSALY

OF THE CITY OF OTTAWA

IN THE PROVINCE OF ONTARIO

BEFORE: Justice Stanley J. Kershman

HEARD IN OTTAWA: March 30, 2021 by Zoom at Ottawa

APPEARANCE: Julie Merkley, for the Trustee, Baker Tilly Ottawa Ltd.

Thomas Gregory Assaly, Self-represented

Antoine Bouvet-Frechette, on Behalf of the Office of the Superintendent of Bankruptcy

DECISION ON OPPOSED DISCHARGE

Introduction

[1] This is the discharge application of the Bankrupt, Thomas Gregory Assaly. His discharge is opposed by both Baker Tilly Ottawa Ltd., Licensed Insolvency Trustee (“LIT” or “Trustee”), and the Office of the Superintendent of Bankruptcy (“OSB”).

Factual Background

[2] Mr. Assaly is in his mid-60s and returned to Ottawa from Florida. He is divorced and has remarried an American citizen who also has moved to Canada with their child who is under five years of age. They live in rental accommodations.

[3] Because his wife is immigrating from the United States, she cannot work here legally and according to Mr. Assaly, she does not earn an income.

[4] At the time of his bankruptcy, Mr. Assaly said that he was only receiving disability benefits from the Ontario Disability Support Program (“ODSP”).

[5] At the present time, Mr. Assaly is in school in a second career program at a local college. His tuition fees and books have been provided for by the Ministry of Labour, Training and Skills Development.

Opposition of the Trustee in Bankruptcy

[6] The LIT has opposed on a number of grounds. Those grounds as set out in its Notice of Opposition to discharge are as follows:

a) 173.(1)(o):

s.158.(a), (d) and (e)

i) The Bankrupt failed to disclose assets (noted on the US chapter 11 filing).

ii) The Bankrupt failed to disclose the fact that he operated five additional businesses within five years prior to the date of bankruptcy.

iii) The Bankrupt failed to disclose the Chapter 11 reorganization that was fried in the US in Nov. 2017 and failed to disclose his US based creditors.

s.158.(b):

i) The Bankrupt failed to provide the income tax information in order for the Trustee to prepare the2018 pre and post-bankruptcy income tax returns.

ii) The Bankrupt failed to provide completed monthly income and expense statements for September, November and December 2018, all of 2019 and January to June, 2020 to the Trustee.

iii) Pursuant to directive 11R2, the Bankrupt failed to provide proof of income for January to June, 2020.

s.158.(g)

i) The Bankrupt failed to disclose the assignment of approximately $450,000 in 2014 to Thomas C. Assaly Charitable Foundation Inc. (a trust for his children).

b) s.173.(1)(1):

i) Pursuant to s.198(1)(c) of the BIA, the Bankrupt made a false entry or knowingly made a material omission in a statement or accounting, by not disclosing assets, as noted above, and not disclosing the assignment of funds within the 5 years prior to the initial bankruptcy event.

c) s.173.(1)(j):

i) The Bankrupt has on previous occasion filed an assignment in bankruptcy in 2002, filed a consumer proposal in March 2018, and filed chapter 11 proceedings in the US in November, 2017.

d) The Bankrupt shall pay to the Trustee the Ordered Amount, which shall be the greater of: (a) the Surplus Income Payments that may be due to the estate, under Section 68 and Directive 11R2, (i.e. pay to the Trustee for thirty-six months one-half of the average monthly surplus income); or (b) the outstanding minimum voluntary payments due to the estate of $4,800.00; or (c) a sum as determined by

the Court.

Opposition of the Office of the Superintendent of Bankruptcy Canada

[7] The OSB did an examination of the Bankrupt on September 6, 2018 and prepared a report detailing the concerns that it had. A portion of the report is reproduced below setting out the sections under which the OSB opposes the bankruptcy discharge and the reasons for which it opposes the discharge.

[8] The following is an excerpt from the OSB’s report of the examination:

Facts for which discharge may be refused, suspended or granted conditionally:

Section 173(1)(o), the bankrupt has failed to perform the duties imposed on the bankrupt under this Act or to comply with any order of the Court.

Assets

Upon filing his assignment in bankruptcy on June 20, 2018 Mr. Assaly completed and signed his Statement of Affairs (SOA) under oath. According to the SOA, the assets of the Bankrupt were as followed [sic]: furniture and personal belongings valued at or under $13,150 (claimed exempt), an inheritance for his father's estate ($1/ undetermined value) and an interest in a leased land located at 1003 Whitney Road, Kemptville, Ontario ($1/ undetermined value). During the examination, the bankrupt was asked to provide additional information on assets that were included as part of his US bankruptcy filed in November 2017.

In the US bankruptcy filing, a baby grand piano (valued at $3,000 USD), a Spanish chest (valued at $5,000 USO [sic]), a desk (valued at $5,000 USD) and a dining table (valued at $20,000 USD) were disclosed to the US trustee at the time. When asked about the whereabouts of these assets and if they had been disclosed to his Licensed Insolvency Trustee (LIT) in Canada, Mr. Assaly confirmed that he still owned these items and that he had divulged the items to the LIT. According to the bankrupt they were accounted for as part of the furniture claimed as exempt. Following the examination, the Official Receiver contacted the LIT to confirm if they had been made aware of those items and their value. The LIT mentioned that she had not been made aware of these specific assets or their potential until the US bankruptcy documents had been provided to her. As per the dollar value the assets disclosed in the US bankruptcy, their value may very well exceed the exempt amount of $13,150 that is allowed under the Execution Act.

It is also worth noting that Mr. Assaly had disclosed his estimated claim to his father's estate at $142,000 US dollars in the US bankruptcy filing documents. The same asset was disclosed at a $1 value on the SOA for the current bankruptcy.

Assignment Agreement for 450,000

When completing the SOA, bankrupts are required to disclose under section C if within the five years prior to the date of the initial bankruptcy event they have either in Canada or elsewhere made any gifts to relatives or others in excess of $500. In response to question 10B under section C, Mr. Assaly answered "no". Further information became available during the bankruptcy proceeding and it was discovered that Mr. Assaly has assigned an amount of $450,000 to the Thomas C. Assaly Charitable Foundation (a trust fund for his children). As part of the examination, the bankrupt was asked why he had answered he did not disclose the assignment of monies on his SOA. Mr. Assaly’s answered [sic] that the funds were assigned through an email that he sent in January 2013 making the assignment over five years prior to the date of bankruptcy. As per the information available in the decision rendered by Justice Kershman on August 15, 2018 (the Decision) the formal Assignment Agreement between himself and the Thomas C. Assaly Charitable Foundation is dated January 31, 2014 (within the 5-year period). According to the Decision, the court found that the Assignment Agreement was an assignment of Mr. Assaly's property that was made within the five-year time limit.

Prior businesses operated by the bankrupt

The bankrupt has also failed to disclose several businesses that he has operated within the five years preceding the assignment in bankruptcy. In response to question 8 of section A on the SOA, the bankrupt disclosed that he operated a business by the name Canada HSE LLC, Construction within the last five years. However, Mr. Assaly foiled [sic] to provide any information pertaining to the other businesses he has operated in the past. In a similar type of question in the US bankruptcy filing documents, the bankrupt had disclosed five other businesses that he has operated within the five years prior to the current bankruptcy. As part of the examination, the bankrupt has confirmed that he has operated the other businesses that were disclosed as part of the US bankruptcy documents.

Undisclosed US bankruptcy

As documented in the Decision, (Kershman J. Decision in Assaly v. Assaly, 2018 ONSC 4882), the bankrupt has failed to disclose the US bankruptcy proceeding dated November 28, 2017 to the LIT when he completed his application form. One of the questions in the form was, ''Have you previously filed for bankruptcy of a proposal in Canada of [sic] elsewhere?". In response to the question, Mr. Assaly provided details on his prior Canadian bankruptcy but failed to disclose any information on his US bankruptcy filing. During the examination, the bankrupt was asked why the information had not been disclosed to the LIT. Mr. Assaly responded that he did not believe it was relevant because the US bankruptcy was mainly associated to a business failure. In failing to disclose the US bankruptcy filing, Mr. Assaly has also failed to disclose information to the LIT on his US based creditors.

According to the above noted information and facts the bankrupt may have failed to respect some of the duties imposed on him under [sic] pursuant to paragraphs 158(a), 158(d), 158(e) and 158(g).

Section 173(1)(l), the bankrupt has committed any offence under this Act or any other statute in connection with the bankrupt's property, the bankruptcy or the proceeding thereunder.

The information and facts that were detailed in the previous section relating to paragraph 173(l)(o) could also be viewed as a potential bankruptcy offence. In failing to disclose (or by lack of transparency) his assets, by failing to disclose the assignment of funds in the amount of $450,000, by failing to disclose his involvement is [sic] several businesses and by omitting to disclose the US bankruptcy proceeding and US creditors Mr. Assaly may have made a false entry or knowingly made a material omission m [sic] a statement or accounting pursuant to paragraph 198(l)(c) of the BIA.

Section 173(1)(j), the bankrupt has on any previous occasion been bankrupt or made a proposal to creditors.

Mr. Assaly has previously been bankrupt and has also filed a consumer proposal in the past. The bankrupt's first assignment was filed on October 2, 2002 (33-141448). Mr. Assaly obtained his discharge on July 2, 2003. The consumer proposal (33-2357994) was filed on March 22, 2018. Mr. Assaly has also filed a US bankruptcy proceeding on November 28, 2017 (Case No.: 17-24179-BKC-EPK). The bankrupt has disclosed these prior insolvencies during the examination.

Conclusion

Mr. Assaly was given the opportunity to review his answers and provide additional information following the examination. The information and facts presented as part of the examination report could be considered as part of an application to court for the discharge of the bankrupt.

Bankrupt’s Position

[9] The Bankrupt argues that he should be given a fresh start because he is in school, he is earning little income and he is supporting his wife and child.

[10] He also argues that he is trying to sponsor his wife to come to Canada as a landed immigrant. He advised the Court that he was unable to proceed with the sponsorship application as he is an undischarged bankrupt. He argues that he should get his discharge so that he can complete his wife’s sponsorship into Canada.

[11] He acknowledges that he has only paid the Trustee in Bankruptcy $300 towards his fees and that he should pay an additional $4,800 for fees.

[12] He argues that he has been in bankruptcy since 2018 and that he would have been discharged after 24 months because of the second bankruptcy.

[13] The OSB pointed out that this would have been a 36-month bankruptcy because he had surplus income pursuant to ss. 68(1)-(2) of the BIA.

Findings Made in the Assaly Bankruptcy Decision of August 15, 2018 in Re Assaly, [2018 ONSC 4882](https://www.minicounsel.ca/scj/2018/4882)

[14] In 2018, a motion was brought before the Court by two creditors seeking to lift the stay of proceedings in relation to Mr. Assaly’s bankruptcy so that they could proceed in relation to their civil action.

[15] The Court heard the motion and made various findings some of which are relevant to the discharge hearing before the Court.

[16] In particular, at para. 43, the Court found that Mr. Assaly was trying to stay one step ahead of the plaintiffs in the civil action by filing a Chapter 11 bankruptcy in Florida, then filing a consumer proposal in Ontario and finally filing for bankruptcy in Ontario.

[17] At para. 44, the Court made findings that Mr. Assaly did not disclose various items of information to the consumer proposal trustee and/or the bankruptcy trustee:

[44] The Court finds that Mr. Assaly did not disclose various items of information to the consumer proposal trustee and/or the bankruptcy trustee. Although not exhaustive, the Court makes findings of the following as examples of information that Mr. Assaly did not disclose:

a. in his application for bankruptcy to Collins Barrow Brown, Mr. Assaly did not disclose his Chapter 11 Bankruptcy filing;

b. in his consumer proposal, Mr. Assaly did not disclose his interest in his father’s Estate in the range of $160,000-$186,000;

c. in his consumer proposal sworn Statement of Affairs, Mr. Assaly did not disclose the assignment of monies held in court in the Civil Action, which were claimed to be assigned to the Charitable Foundation within five years of the consumer proposal contrary to part 10 of his Statement of Affairs;

d. in his bankruptcy sworn Statement of Affairs, Mr. Assaly did not disclose the assignment of monies held in court in the Civil Action which were claimed to be assigned to the Charitable Foundation within five years of his filing for bankruptcy contrary to part 10 of his Statement of Affairs; and,

e. in his consumer proposal Statement of Affairs, Mr. Assaly did not list the Plaintiffs as creditors, notwithstanding that there was an ongoing matter that would be stayed by the filing of the consumer proposal.

[18] At para. 94, the Court also made a finding that pursuant to an endorsement of Master Champagne (as she then was) dated November 29, 2017, Mr. Assaly was ordered to produce documentation from his US bankruptcy filing and that he had not done so.

[19] At para. 97, the Court made a finding that Mr. Assaly had other creditors in the United States which he did not disclose either to the consumer proposal trustee or the Canadian bankruptcy trustee. He was ordered to disclose all of his creditors worldwide to the Canadian bankruptcy trustee within 21 days.

[20] At para. 100, based on the evidence, the Court made a finding that Mr. Assaly did not disclose his interest in his father’s estate to the consumer proposal trustee or his creditors when he filed his consumer proposal.

[21] In addition, at para. 102, the Court found that Mr. Assaly did not disclose his RBC Visa credit card debt to the consumer proposal trustee.

[22] At para. 105, the Court found that Mr. Assaly did not disclose his US Chapter 11 bankruptcy filing to his Canadian bankruptcy trustee.

[23] While the Court realizes that some of these findings relate to the consumer proposal trustee, the Court finds that the lack of disclosure by Mr. Assaly to either proposal trustee and/or the bankruptcy trustee was inappropriate and contrary to the provisions of the BIA.

Issue

1. Should there be findings made under ss. 173(1)(j), 173(1)(l), 173(1)(m) or 173(1)(o)?

Legislation and Analysis

Section 173(1)(j) – Bankrupt has Been Previously Bankrupt or Made a Proposal

[24] Section 173(1)(j) reads as follows:

173 (1) The facts referred to in section 172 are …

(j) the bankrupt has on any previous occasion been bankrupt or made a proposal to creditors;

[25] The evidence is clear that Mr. Assaly filed for bankruptcy in 2002 and was discharged in 2003.

[26] In its decision of August 2018, the Court previously found that Mr. Assaly filed for Chapter 11 bankruptcy in Florida in 2017.

[27] In addition, the Bankrupt filed a consumer proposal on March 22, 2018 in Ottawa with Raymond Chabot Inc.

[28] Based on the aforesaid evidence, the Court finds that there will be a finding under s. 173(1)(j).

Section 173(1)(l) – Bankrupt has Committed a Bankruptcy Offence

[29] Section 173(1)(l) reads as follows:

173 (1) The facts referred to in section 172 are …

(l) the bankrupt has committed any offence under this Act or any other statute in connection with the bankrupt’s property, the bankruptcy or the proceedings thereunder;

[30] The Trustee and the OSB argue that pursuant to s. 198(1)(c) of the BIA, the Bankrupt has made a false entry or knowingly made a material omission in a statement or accounting, by not disclosing assets including those in his Chapter 11 US filing and not disclosing the assignment of $450,000 within five years prior to the initial bankruptcy event.

[31] The Court has reviewed the wording of s. 198 of the BIA which deals with offences either under the Bankruptcy and Insolvency Act or other statutes. The Court notes that there is no evidence of Mr. Assaly being charged or convicted of a bankruptcy offence or any other offence related to these matters.

[32] Therefore, the Court finds that there will be no finding under s. 173(1)(l) of the BIA.

Section 173(1)(m) – Surplus Income

[33] Section 173(1)(m) reads as follows:

173 (1) The facts referred to in section 172 are …

(m) the bankrupt has failed to comply with a requirement to pay imposed under section 68;

[34] While s. 173(1)(m) is not specifically set out by the Trustee in the Notice of Opposition of Discharge, the Trustee does seek an order that the Bankrupt pay surplus income to the estate.

[35] The Trustee argues that there is surplus income owing to the estate based on the documentation provided by Mr. Assaly. Mr. Assaly says that he may have missed providing some documentation and that he was prepared to provide it.

[36] In relation to his income, Mr. Assaly initially said that ODSP was his only source of income. Thereafter he produced a Record of Employment from Walmart which showed that from November 23, 2018 to March 29, 2019, his total insurable earnings were $10,606.44.

[37] Under oath, he stated to the OSB that his only source of income at the time in September 2018 was ODSP.

[38] During the course of his bankruptcy, Mr. Assaly produced an additional Record of Employment, this time from Assaly Trade and Credit Corp. which indicated that he been employed with it from January 2, 2018 to March 26, 2019. The Record of Employment is signed by his wife. According to the Trustee’s letter, the Bankrupt did not report this income on his 2019 Income Tax Return. The Trustee did report it on his 2018 pre- and post-bankruptcy tax returns.

[39] Based on the evidence, the Court finds that Mr. Assaly was not truthful as to his sources of income at the time of the examination as he was earning income as a project manager from Assaly Trade and Credit Corp.

[40] The Court finds that Mr. Assaly has been late in providing timely information to the Trustee.

[41] As to the non-production of documentation required by the Trustee, the Court finds that Mr. Assaly had sufficient time to provide the documentation requested by the Trustee. This matter was previously before the Court on December 2, 2020 and was adjourned at the request of the Trustee and the Bankrupt.

[42] Paragraph 3 of that endorsement reads as follows: “Mr. Assaly will provide the documentation requested by the trustee by January 15, 2021. In the event the documentation is not provided in full, the court may draw adverse inferences at the discharge hearing.”

[43] The discharge hearing was set on that date for March 30, 2021 at 2:00 p.m. pre-emptory to all parties.

[44] The Court received correspondence from the Trustee dated March 25, 2021 in which the Trustee stated that it was not able to fully determine the amount of surplus income of the Bankrupt during the first 24 months or to the date of the letter.

[45] The letter goes on to list various deficiencies in the information provided by Mr. Assaly.

[46] The Trustee had concerns about the Bankrupt’s income. In particular, the Trustee wanted to know whether the Bankrupt had any self-employment income in 2020.

[47] In addition, the Trustee was also concerned because the Assaly Credit and Trade Corp. Record of Employment was issued and signed by his wife on May 18, 2019. The Trustee said that based on this evidence, his wife may have been employed by and earned income from Assaly Trade and Credit Corp.

[48] The Court finds that Mr. Assaly has not provided complete disclosure with respect to his income for the purpose of calculating surplus income as required in the December 2, 2020 endorsement. The Court finds that he has been inconsistent in his answers to the Trustee about his employment.

[49] The Court is satisfied and finds on the evidence that the surplus income as calculated by the Trustee is in excess of $13,000.

[50] The Court, in its discretion, finds that Mr. Assaly should have to pay surplus income in the amount of $12,000 to the Trustee.

[51] Based on the aforesaid evidence, the Court finds that there will be a finding under s. 173(1)(m) of the BIA.

Section 173(1)(o) – Failure to Perform Duties

[52] Section 173(1)(o) reads as follows:

173 (1) The facts referred to in section 172 are …

(o) the bankrupt has failed to perform the duties imposed on the bankrupt under this Act or to comply with any order of the court.

[53] The duties of a bankrupt are set out in s. 158 of the BIA.

[54] The sections complained of by the Trustee and/or the OSB are ss. 158(a), (b), (d), (e), and (g) of the BIA which read as follows:

158 A bankrupt shall

(a) make discovery of and deliver all his property that is under his possession or control to the trustee or to any person authorized by the trustee to take possession of it or any part thereof;

(b) deliver to the trustee all books, records, documents, writings and papers including, without restricting the generality of the foregoing, title papers, insurance policies and tax records and returns and copies thereof in any way relating to his property or affairs;

(d) within five days following the bankruptcy, unless the time is extended by the official receiver, prepare and submit to the trustee in quadruplicate a statement of the bankrupt’s affairs in the prescribed form verified by affidavit and showing the particulars of the bankrupt’s assets and liabilities, the names and addresses of the bankrupt’s creditors, the securities held by them respectively, the dates when the securities were respectively given and such further or other information as may be required, but where the affairs of the bankrupt are so involved or complicated that the bankrupt alone cannot reasonably prepare a proper statement of affairs, the official receiver may, as an expense of the administration of the estate, authorize the employment of a qualified person to assist in the preparation of the statement;

(e) make or give all the assistance within his power to the trustee in making an inventory of his assets;

(g) make disclosure to the trustee of all property disposed of by transfer at undervalue within the period beginning on the day that is five years before the date of the initial bankruptcy event and ending on the date of the bankruptcy, both dates included;

Section 158(a)

[55] As to s. 158(a), the OSB report states that the Trustee had not been made aware of the specifics of his US furniture assets or their values. Based on the disclosure of their values, their values exceeded the exemptions provided for under the Execution Act, R.S.O. 1990, c. E.24. Therefore, the Court makes a finding under s. 158(a) of the BIA.

Section 158(b)

[56] As to s. 158(b), the Court finds that the Bankrupt did not provide the tax information in a timely fashion in order for the Trustee to prepare the 2018 pre- and post-bankruptcy Income Tax Returns.

Section 158(d)

[57] As to s. 158(d), based on the previous findings by the Court in the August 15, 2018 decision, the Court finds that the Bankrupt did not disclose all of his creditors in his US bankruptcy filing or the five businesses that he ran in the United States when he went bankrupt in 2017.

Section 158(e)

[58] As to s. 158(e), the Court does not find that there is sufficient evidence of noncompliance with this provision. There will be no finding under this subsection.

Section 158(g)

[59] As to s. 158(g), Mr. Assaly did not disclose the assignment agreement for $450,000 that was executed within five years of the initial bankruptcy event to the Thomas C. Assaly Charitable Foundation (a trust for his children).

[60] The Court found on August 15, 2018 that the assignment of the $450,000 to the charitable trust in trust for his children did not occur in 2013 when he sent an email to his lawyer. The Court found that the assignment agreement was signed and dated January 31, 2014. This was within the five-year time limit prior to both the consumer proposal and the bankruptcy. Mr. Assaly, in his Statement of Affairs, indicated that no assets had been transferred within the five-year period. The Court finds that Mr. Assaly did not comply with his duties in accordance with the provisions of the BIA when completing his Statement of Affairs.

[61] Based on the aforesaid findings, the Court finds that Mr. Assaly did not comply with his duties as required under s. 173(1)(o) of the BIA. There will be a finding under s. 173(1)(o).

Issue: What Type of Discharge Should the Bankrupt Receive?

[62] Based on the findings set out under s. 173 of the BIA, the Court can make a discharge in accordance with s. 172(2) which reads as follows:

172(2) The court shall, on proof of any of the facts referred to in section 173, which proof may be given orally under oath, by affidavit or otherwise,

(a) refuse the discharge of a bankrupt;

(b) suspend the discharge for such period as the court thinks proper; or

(c) require the bankrupt, as a condition of his discharge, to perform such acts, pay such moneys, consent to such judgments or comply with such other terms as the court may direct.

[63] From the Court’s perspective, the Bankrupt’s conduct in this bankruptcy has been very poor, which in turn makes a mockery of the integrity of the BIA.

[64] The BIA legislation is intended to be rehabilitative of honest but unfortunate debtors who have financial difficulties.

[65] In the case of Re Berthiaume, 2019 ONSC 2727, 70 C.B.R. (6th) 278, the Court found that the bankrupt’s conduct was such that it shows contempt for and derision of the integrity of the BIA.

[66] The Court said, at paras. 121-123, as follows:

[121] A fundamental purpose of the BIA is to provide for financial rehabilitation of insolvent persons (see: Ramgotra (Trustee of) v. North American Life Assurance Co., 1996 CanLII 219 (SCC), [1996] 1 S.C.R. 325 (S.C.C).

[122] The integrity of the BIA must be maintained so that honest or an unfortunate debtors can obtain a discharge in order to make a fresh start and resume their place in the business community (see: Irwin (Re) (1994), 1994 CanLII 1723 (BC CA), 89 B.C.L.R. (2d) 114 (C.A.)).

[123] Based on the aforesaid, it cannot be said that Mr. Berthiaume, is an honest or an unfortunate debtor. He is not. At the very least, he misled the Trustee and his creditors about the numerous items, including his income, that assets were disposed of or transferred prior to bankruptcy and his extravagant lifestyle.

[67] Similar discussions about the integrity of the BIA were dealt with in the cases of Saran (Re), 2018 ONSC 6045, 68 C.B.R. (6th) 114; Hardtke (Re), 2012 ONSC 4662, 91 C.B.R. (5th) 237; and Re O’Dea, 2017 ONSC 5148.

[68] As stated previously, the Court has already made a number of findings in a previous decision about the lack of disclosure by Mr. Assaly to either his consumer proposal trustee and/or his bankruptcy trustee. This lack of disclosure gives credence to the concept that Mr. Assaly is not an honest debtor.

[69] Based on the various findings made under s. 173 in this case, the Court will, in accordance with s. 172(2) of the BIA and the caselaw, order a conditional discharge that the Bankrupt pay to the Trustee the sum of $12,000 on account of surplus income and a further $4,800 on account of outstanding fees for a total of $16,800.

[70] On the one hand, the Court is well aware that Mr. Assaly is seeking to sponsor his wife into Canada and cannot do so under s. 133(1)(i) of the Immigration and Refugee Protection Regulations, SOR/2002-227, while he is an undischarged bankrupt. On the other hand, the Court has the responsibility to uphold the integrity of the BIA. The Court finds that the aforesaid conditions are appropriate given the Bankrupt’s conduct and the circumstances of this case.

[71] Furthermore, the Court realizes that the conditions may impose a certain amount of hardship on the Bankrupt; however, this problem is of his own doing and for that he must bear the consequences.

[72] In addition, the Court orders that should Mr. Assaly seek creditor protection under the BIA or similar legislation in the future, he will have to obtain leave of the court before he is able to file for such protection.

Conclusion

[73] Based on the evidence, the Court makes findings under ss. 173(1)(j), 173(1)(m) and 173(1)(o).

Costs

[74] There will be no order as to costs.

[75] Order accordingly.

Justice Stanley J. Kershman

Released: April 28, 2021

COURT FILE NO.: 33-2391513

DATE: 2021/04/28

ONTARIO

SUPERIOR COURT OF JUSTICE

IN BANKRUPTCY and INSOLVENCY

IN THE MATTER OF THE BANKRUPTCY OF

THOMAS GREGORY ASSALY

OF THE CITY OF OTTAWA

IN THE PROVINCE OF ONTARIO

BEFORE: Justice Stanley J. Kershman

HEARD IN OTTAWA: March 30, 2021 by Zoom at Ottawa

APPEARANCE: Julie Merkley, for the Trustee, Baker Tilly Ottawa Ltd.

Thomas Gregory Assaly, Self-represented

Antoine Bouvet-Frechette, on Behalf of the Office of the Superintendent of Bankruptcy

DECISION ON OPPOSED DISCHARGE

Kershman J.

Released: April 28, 2021