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CIVIL PROCEDURE - Judgments and orders - Enforcement

Tuesday, April 14, 2020 @ 8:14 AM  

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Appeal by the bankruptcy trustee from an order granting a 24 month deferral of the sale of the respondent’s home. The trustee obtained a judgment against the respondent in 2012 which was registered against the home in 2014. The respondent was in her 70’s and resided in the home for over 30 years. Her adult son lived there with her. Both had significant health issues. Based on her financial circumstances, the respondent was unable to satisfy the judgment by paying a lump sum or installment payments. The property was her only material asset. In 2016, the trustee commenced proceedings to have the property sold to satisfy the judgment. The trustee argued it was not open to the chambers judge to grant the deferral of the sale of the property because the judge failed to impose terms and conditions on the respondent as required by s. 96(2) of the Court Order Enforcement Act.

HELD: Appeal allowed. While the chambers judge did not err in law in granting a deferral order, the deferral period was varied to end in March 2020. The judge had discretion to order deferral of the sale of the property under s. 96(2) without imposing terms and conditions for performance by the respondent. Section 96(2) of the Court Order Enforcement Act did not require the court to impose terms on the debtor. The words of the section did not read that the court’s order was subject to the imposition of terms and conditions. Despite there being no error by the judge in his interpretation of s. 96(2) or his general approach of weighing the prejudice to the parties, the court was concerned about the length of deferral imposed by the judge. In the absence of an explanation for this length of deferral, the 24 months was beyond the range one would normally expect to provide some reasonable relief to the hardship of a debtor. The judge gave insufficient weight to the potential prejudice to the creditor imposed by such a lengthy deferral. A more appropriate deferral would have been in the range of up to six months.

Kriegman v. Wilson, [2020] B.C.J. No. 263, British Columbia Court of Appeal, M.V. Newbury, D.M. Smith and S.A. Griffin JJ.A., February 24, 2020. Digest No. TLD-April132020002