Supreme Court

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IN THE SUPREME COURT OF NOVA SCOTIA

IN BANKRUPTCY

Citation:  Dorey, Re, 2008 NSSC 234

            Date: 20080731

                               Docket: B 31844

            Registry: Halifax                                                                              

District of Nova Scotia

Division No. 1

Court No. 31844

Estate No. 51-933191                                                                                   

 

In the Matter of the Bankruptcy of Gregory Paul Dorey

 

IN THE MATTER OF THE APPLICATION OF GENEVA FLORENCE HEMEON FOR LEAVE TO CONTINUE AN ACTION AGAINST THE BANKRUPT’S INSURER

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2006                                                                                         S.K. No. 268782

IN THE SUPREME COURT OF NOVA SCOTIA

 

BETWEEN:

       GENEVA FLORENCE HEMEON

PLAINTIFF

 

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THE MUNICIPALITY OF THE DISTRICT OF

                        WEST HANTS, CHERYL LYNN LAWRENCE, JOHN                   KENNETH  LAWRENCE  and

                          GREGORY DEAN DOREY

 

DEFENDANTS

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LIBRARY  HEADING

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Registrar:                       Richard W. Cregan, Q.C.                             

 

Heard:                            May 30, 2008                                                       

 

Written Decision: July 31, 2008

 

Subject:                          Whether the applicant should be allowed under Section 69.4 of the Bankruptcy and Insolvency Act to proceed with an action against a now discharged bankrupt for damages arising from misrepresentations alleged to have been made before his assignment in bankruptcy in hope of being able to collect under a liability policy held at the time by the bankrupt but where coverage has not been admitted by the insurer.

 

Summary:                      The Applicant relied on the Buchanan case a recent decision of the Court of Appeal of Nova Scotia which held that although the defendant may be a discharged bankrupt, thereby discharged of responsibility for the debt, the underlying obligation continues and the plaintiff could proceed against the insurer.  The bankrupt argued that this case did not apply when the insurer has not admitted coverage.

 

 

Held:                    The insurer cannot rely on a self serving non admission of coverage.  Whether it is admitted or not does not affect the continued existence of the underlying liability.  The better way to approach the problem is to rely on Re Ma and related cases and ask whether in the circumstances the Applicant is being “materially prejudiced” by the stay imposed by the BIA.  The court was satisfied that she was.  She was granted the declaration sought.

 

 

 

 

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