COURT FILE NO.: 31-2907255
DATE: 20231130
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: In the Matter of the Bankruptcy of Jose Lava Suguitan
BEFORE: Associate Justice Rappos
APPEARANCES: Howard Manis, for msi Spergel Inc.
Frank Kisluk, representative of msi Spergel Inc.
Sui (Sally) Chan, self-represented
HEARD: November 30, 2023 (via videoconference)
E N D O R S E M E N T
[1] On March 3, 2023, Jose Lava Suguitan was deemed to have made an assignment into bankruptcy, and msi Spergel Inc. was appointed as trustee in bankruptcy (the “Trustee”).
[2] In an affidavit sworn by Mr. Kisluk as a representative of the Trustee, he states that Mr. Suguitan has failed to provide the Trustee with information and documents regarding his property and affairs that the Trustee requires to administer the bankruptcy estate, which includes personal income tax returns, details of the purchase and sale of real estate, and a listing of personal bank accounts.
[3] Mr. Suguitan is required to do so under subsections 158(a), (b), (e), (k) and (o) of the Bankruptcy and Insolvency Act (the “BIA”).
[4] The Trustee brings a motion requesting an order compelling Mr. Suguitan to adhere to his production duties under the BIA. Mr. Suguitan has not taken any step to oppose the relief sought by the Trustee.
[5] As the relief sought is unopposed, I have jurisdiction to deal with the motion sitting as a registrar in bankruptcy pursuant to subsection 192(1)(f) of the BIA.
[6] In my view, the relief sought by the Trustee is appropriate, given Mr. Suguitan’s failure to date to adhere to his duties under the BIA. As a result, the Trustee’s motion is hereby granted.
[7] As part of its motion, the Trustee included a provision in the draft order that “financial institutions in which the Bankrupt has either corporate or personal bank accounts be and are hereby ordered to deliver to the Trustee all bank statements and supporting documents reasonably requested by the Trustee dating back to 2016 to the present time.”
[8] Counsel to the Trustee confirmed that no notice was provided to any financial institutions, as the Trustee has been unable to confirm what financial institutions are used by Mr. Suguitan.
[9] In my view, the language in the draft order is overly broad, and that the Trustee’s focus at this time should be directed at obtaining banking information and statements directly from Mr. Suguitan. In the event that the Trustee is unable to do so, it may return to court and seek such relief again, provided it gives sufficient prior notice to the financial institutions that it is seeking production from.
[10] The Trustee is also seeking relief in connection with a condominium unit owned by Mr. Suguitan. The unit is currently occupied by a tenant, Ms. Chan. Ms. Chan opposes the relief sought by the Trustee.
[11] As the Trustee wishes to sell the unit for the benefit of Mr. Suguitan’s creditors, it has asked that Ms. Chan vacate the unit. According to the Trustee, communications with Ms. Chan have been onerous, and Ms. Chan has refused to vacate the unit.
[12] Mr. Kisluk states in his affidavit that, given Ms. Chan’s non-communication, “and so as to not run afoul with the requirements of the Landlord and Tenant Board, the Trustee is applying to this honourable court to lawfully deal with/remove/evict the Tenant from the Property so that it can be properly attended to and listed for sale for the general benefit of the creditors.”
[13] In its draft order, the Trustee is requesting that the Court order that Ms. Chan and all occupants vacate the unit within 60 days, that Ms. Chan leave the unit in a broom swept condition and without any damage or destruction, and that Ms. Chan pay all arrears of rent and utilities.
[14] The draft order also authorizes the Trustee to take any and all necessary action to enforce this order against Ms. Chan and the occupants to have them vacate the unit, including directing the Sheriff or police to enforce the order, and grants leave for a writ of possession to be issued.
[15] It is trite law that a trustee steps into the shoes of a bankrupt in connection with the rights the bankrupt had to its property prior to the asset vesting in the trustee pursuant to section 71 of the BIA. Counsel to the Trustee was unable to confirm whether Mr. Suguitan had the ability to evict Ms. Chan from the unit prior to his bankruptcy.
[16] I do not see any section under the BIA, and I was not directed to any statute or case law by counsel to the Trustee, that would empower a registrar in bankruptcy to grant the type of relief sought by the Trustee, especially given that the relief is opposed by Ms. Chan.
[17] While I understand that the Trustee is attempting to satisfy its duty to realize on Mr. Suguitan’s property for the benefit of his creditors in an efficient manner, I do not believe that the Trustee is entitled to circumvent the requirements of the Residential Tenancies Act and the jurisdiction of the Landlord and Tenant Board over disputes between landlords and residential tenants.
[18] Accordingly, the Trustee’s eviction motion is hereby dismissed.
Associate Justice Rappos
DATE: November 30, 2023