Mar 17, 2014

Summary of Phaneuf Fertilizer Sales Ltd. v. Leblanc

Phaneuf Fertilizer Sales Ltd. v. Leblanc, 1998 CanLII 13789 (SK QB)
Phaneuf, an unsecured creditor of Leblanc, obtained a 38 Bankruptcy and Insolvency Act order which authorized it to commence and prosecute proceedings at its own risk and exense for two purposes: to set aside a conveyance made by Leblanc to the numbered company and to trace the disposition of assets by Leblanc. Phaneuf adduced evidence at trial to prove Leblanc entered into a complex scheme and conspiracy with the numbered company and the Wallingtons for the sole purpose of defrauding Leblanc's creditors of hundreds of thousands of dollars. The four issues were: (i)Whether the defendant was entitled on the eve of the trial to bring his motion to strike portions of the statement of claim and for other relief previously raised in his statement of defence and in numerous interlocutory motions. The statement of defence was previously struck due to his continual refusal to file a statement as to documents and to comply with undertakings. (ii)Whether the proceedings commenced by Phaneuf are null and void. The defendant alleged that s38 order was void for uncertainty, that the proceedings commenced by Phaneuf were outside the scope of the order and the claim was statute-barred. (iii)Whether the evidence proves that the defendants entered into a fraudulent conveyance and scheme and conspiracy to defeat his creditors. (iv)The appropriate relief to be granted to the plaintiff.HELD: The plaintiff was entitled to judgment for $225,166.31 plus interest calculated in accordance with the Pre-judgment Interest Act from the date the proceedings were commenced plus solicitor and client costs to be taxed failing agreement between the parties. The plaintiff was also entitled to enter judgment jointly and severally against the numbered company and the Wallingtons for $35,000 plus interest and costs in accordance with the terms of the written consent. 1)LeBlanc no longer had status to raise the s38 order issues. Even if the issues were not res judicata, it was improper to raise them on the eve of the trial in the form of a motion that effectively sought a declaratory judgment. It was highly unlikely Leblanc would have been successful in setting aside the order striking his defence considering his conduct and tactics in persistently stalling the action. 2)Even if Leblanc had status to raise any of the defences none had any merit. Section 38 is to be liberally construed. It is meant to be used as a sword not as a shield. If creditors had to provide full particulars of the precise fraudulent conveyance a s38 order could seldom be made and its objective would be seriously undermined. Pursuant to s69 the plaintiff's right to sue to renew its judgment was stayed once Leblanc went into bankruptcy. Even if the Limitations of Actions Act applies to an action under the BIA it does not apply to this action under s38. 3)Several of the badges of fraud were proven. Each of the defendants admitted to facts which in law constituted a fraudulent intention. The only consideration given was grossly inadequate. Leblanc's activities respecting the estate funds constituted not only a fraudulent conveyance but also a breach of his fiduciary duties as executor of the estate. 4)A declaration that the conveyances and transactions are void provides the plaintiff with a hollow victory. In most instances the numbered company and the Wallingtons retained the property only for a short period of time before they paid it back to Leblanc in the form of cash which had likely been sequestered in a manner ensuring Leblanc's access but depriving his creditors of it. The only effective monetary relief was to grant judgment for the amount of the plaintiff's claim, its damages and costs. The plaintiff could take out a writ of execution against the substantial facilities and improvements on Leblanc's home quarter which undoubtedly exceeded his legal exemptions. The plaintiff abandoned his claim for punitive and exemplary damages. 5)In Saskatchewan and in most other provinces that have enacted pre-judgment interest legislation, no distinction can be now made between an award of interest by way of damages and an award of pre-judgment interest. If it was in error that the Pre-judgment Interest Act governs any award for deferred payment, the plaintiff's damages were fixed at $108,079.82. 6)Solicitor and client costs were awarded. Leblanc's conduct precluded the plaintiff from enforcing its lawful claim for over a decade. The plaintiff had to take out two default judgments, conducted four examinations for discovery of other defendants plus two unsuccessful attempts at resumptions, appear on over forty interlocutory applications and spend untold hours analyzing documents. The defendants had been uncooperative, obstructive and were evasive and dishonest in their examinations and affidavits, taking inconsistent positions from time to time. Leblanc refused to admit sixty uncontroverted facts, refused to file a statement as to documents, failed to comply with undertakings and did not make full disclosure of his assets at the time he declared bankruptcy. The involvement by lawyers in the types of misconduct described is not only unprofessional but undermined the foundations of the legal profession, the administration of justice, and the rule of law.