PRACTICE |
Parties |
Intervention |
Black v. NsC Diesel Power Inc. Estate (Trustee of)
A-371-00
2003 FCA 300, Pelletier J.A.
7/7/03
18 pp.
Appeal by Frederick W. L. Black from order of MacKay J. ((2000), 183 F.T.R. 301) dismissing appellant's application for order of mandamus against Office of the Superintendent of Bankruptcy (Superintendent)--Order under appeal made as result of motion brought by Superintendent to strike appellant's application for judicial review on ground vexatious, represented abuse of process and essentially devoid of any hope of success--Appellant argued Motions Judge's order should be set aside because of certain factual errors-- Appellant argued Judge erred in criticizing him for purporting to represent parties other than himself by making them applicants in these proceedings, when clear appellant sole applicant--Appellant alleged Judge also erred in finding present application fourth application seeking same relief when in fact it was the first seeking specific relief pleaded-- Consequently, Judge's conclusion proceeding vexatious and abusive could not be supported--Appellant also took issue with status of Superintendent, mere intervener, to bring application to strike application--As to status of Superintendent, as intervener, to bring motion for dismissal of application while Bankruptcy and Insolvency Act gives Superintendent power to intervene as party in any proceeding in court, "court" defined as court having jurisdiction in bankruptcy in geographic jurisdiction--In Nova Scotia, court having bankruptcy jurisdiction Supreme Court-- Consequently, Superintendent cannot intervene in proceedings in Federal Court as of right but must comply with Federal Court Rules, 1998, r. 109--Motions Judge right to require Superintendent to make motion for intervener status and open to Judge to allow motion to be made orally--Clear from registry officer's minutes of proceedings Superintendent granted status of intervener, even though no formal order ever issued--Motions Judge granted Superintendent intervener status on basis of motion--Motions Judge granted Superintendent intervener status for purpose of allowing him to make motion to strike appellant's application--As to issue of representation of other parties, in case at bar, appellant sole applicant--Parties named as respondents not adverse in interest to appellant--Respondents did not appear on motion and not represented by counsel--Other named party "The Creditors of the Estate of NsC Diesel Power Incorporated as represented by the TRUSTEE of the Estate"--Such party unknown to law--No provision in Act or in Rules for service of "creditors" by service upon Trustee in bankruptcy--No justification for purporting to name both Inspectors and creditors--Naming of creditors as party ineffectual--One party directly affected by application but not named as party, the Trustee--Significant because appellant created appearance of adversarial proceedings when, in fact, only single interest represented--Regarding multiplicity of proceedings, appellant says Judge erred in characterization of "third application for mandamus"--Appellant says that there has only been one prior adjudication on merits, not three as suggested by Motions Judge--Application T-610-99 seeking mandamus against Superintendent, same relief sought in application T-724-95--Appellant justifies present application by saying application founded on facts not before Court in deciding outcome of application T-724-95--Alleged misrepresentation to Court constitutes basis on which appellant claims to be entitled to make fresh application for mandamus--Appellant claims Court misled by information provided by counsel--No inconsistency between submissions made by counsel for Superintendent to MacKay J., conclusions expressed by MacKay J. in application T-724-95 and documents supplied by applicant in application T-610-99--Documents tendered by appellant do not demonstrate misrepresentations made by representatives of Superintendent --Consequently, no new evidence, and therefore no basis for reconsideration of issues canvassed in T-724-95--Appeal dismissed notwithstanding Motions Judge's error with respect to appellant's purported representation of other parties--Bankruptcy and Insolvency Act, R.S.C., 1985 c. B-3 (as am. by S.C. 1992, c. 27, s. 2)-- Federal Court Rules, 1998, SOR/98-106, r. 109.