Sean C. Flaherty

The appellant appealed a judgment dismissing his action against the respondents on the basis that he was an undischarged bankrupt at the relevant time and thus lacked capacity to commence it.

The appellant argued the trustee in bankruptcy had implicitly assigned him authority to commence the action by permitting him to manage the property under s. 30(1)(l) of the BIA.

The Court of Appeal held the motion judge committed no palpable and overriding error in finding that no express assignment had been made, as the trustee was unaware of both the fire damage and the action.

The court further held the appellant's claim for general damages for loss of enjoyment and use of the property was proprietary rather than personal in nature, and therefore vested in the trustee.

Appeal dismissed with no costs order given the respondents' non-participation.

The defendants brought a motion to strike the plaintiffs' statement of claim, arguing it disclosed no reasonable cause of action, was an abuse of process, and was statute-barred.

The plaintiffs had previously commenced an identical action regarding a terminated bingo hall lease on First Nation reserve lands, which was dismissed for delay.

The court agreed with the defendants, finding the second action was an abuse of process attempting to re-litigate the dismissed claims.

The court also held the lease was void ab initio under the Indian Act and the claims were subject to the two-year limitation period.

The motion to strike was granted without leave to amend.