Superior Court of Justice – Ontario

Court File No.: 31-2217073
Date: 2025-05-02

Style of Cause

Re: In the Matter of the Bankruptcy of Luis Alejandro Correa Rucci

Before: Associate Justice Rappos

Counsel:
Luis Alejandro Correa Rucci, self-represented
Adam Fisher, representative of Harris & Partners Inc.
Shirley Sollano, representative of the Office of the Superintendent of Bankruptcy

Heard: April 29, 2025 (via videoconference)

Endorsement

[1] Luis Alejandro Correa Rucci filed for bankruptcy in February 2017. This was his second bankruptcy, as he previously filed in September 2000 and received his discharge in July 2001.

[2] Mr. Rucci’s application for discharge was heard on November 26, 2024. In an unreported decision, I granted Mr. Rucci his discharge, subject to him paying $51,000 to the Trustee, providing an undertaking to the Trustee that he would not obtain unsecured credit for a 5-year period, providing evidence that he has closed all of his credit cards, and providing a new credit report to the Trustee.

[3] Mr. Rucci brings a motion to vary the conditional order of discharge. Mr. Rucci asks the Court to remove the conditions and grant him his discharge.

[4] Before considering the merits of the motion and the positions of the parties, I must determine whether Mr. Rucci is permitted to bring his motion at this time.

Statutory Framework

[5] The Bankruptcy and Insolvency Act (the “BIA”) sets out the process for an individual to receive their discharge from bankruptcy. Section 172 of the BIA empowers the Court to grant an absolute discharge, refuse to grant a discharge, suspend a discharge, or grant a conditional discharge in specific situations.

[6] Subsection 172(3) of the BIA allows a bankrupt to ask the Court to modify the terms of a conditional order. For the Court to grant such a request, it must be satisfied that “there is no reasonable probability” of the bankrupt “being in a position to comply with the terms of the order”.

[7] Additionally, and most importantly here, subsection 172(3) provides that the bankrupt can only request the change “any time after the expiration of one year after the date of any order made under this section” [emphasis added].

[8] Only five months have passed since the conditional discharge order was granted on November 26, 2024. As a result, the Trustee argues that this motion has been brought seven (7) months too early and must be dismissed.

[9] The Court does not have the power under the BIA to reduce the 12-month period to bring a motion under subsection 172(3).

[10] The Court is authorized, at any time, to review, rescind or vary any order made by it pursuant to subsection 187(5) of the BIA.

Case Law Guidance

[11] Subsections 172(3) and 187(5) appear to be in conflict. However, in Cornell (Re), 2021 ONSC 7427, para. 17, Justice Ryan Bell resolved this apparent conflict by holding that subsection 172(3) addresses a change in the bankrupt’s circumstances from the date of the conditional order, while subsection 187(5) is appropriate where the bankrupt wishes to adduce new evidence or advance material argument that was overlooked at the initial hearing.

[12] As well, in HOJ National Leasing Corp. (Re), 2008 ONCA 390, para. 27, the Court of Appeal for Ontario held that for subsection 187(5) to apply, “there must be a fundamental change in circumstances, between the original hearing and the time of the motion to vary, or evidence must have been discovered that was not known at the time of the original hearing and which could have led to a different result.”

Evidence and Analysis

[13] In his affidavit, Mr. Rucci states that he is “currently renting a room for $1,000 per month”, and that “there has been zero construction work available. In the last year, I worked only 3 months out of 12.” He also states that he is “surviving as best I can, calling companies every day for work, without success. For 9 years I have struggled, unable to buy clothes except for necessities. I cannot go anywhere because of lack of funds…I ask for help to get back on my feet”.

[14] Having reviewed Mr. Rucci’s affidavit, and having heard his testimony and submissions during the hearing, I find that Mr. Rucci’s position is that he cannot satisfy the conditional discharge terms. His argument at this motion is similar to the arguments he made to the Court at his discharge hearing. I do not view his position as being that he is trying to put forward new evidence or say that his argument was overlooked at the initial hearing.

[15] As a result, Mr. Rucci’s motion falls within the power of the court to modify a conditional discharge order under subsection 172(3) of the BIA. As noted, such a motion can only be brought 12 months after the date of the conditional discharge order.

Conclusion

[16] As a result, I am dismissing Mr. Rucci’s motion. If he wishes to bring this motion on again, he must wait to have it heard until after November 26, 2025.

[17] I note that on such a motion, it will be Mr. Rucci’s responsibility to show that there is no reasonable possibility that he will be able to comply with the conditions. In considering whether the Court will exercise its discretion to modify the conditional order, it will consider factors such as whether Mr. Rucci has made real and substantial efforts to comply with the terms of the conditional order, whether Mr. Rucci has provided material that shows he cannot comply with the terms (such material may include income and expense statements, bank account statements, and tax filings), and whether there has been any change in his situation since the conditional order was made (and if so, whether the changes were in Mr. Rucci’s control).
See Connor v. Rumanek & Co, 2011 ONSC 4553, para. 8.

Associate Justice Rappos
Date: May 2, 2025