SMITH J.A. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2005 SKCA 27 Date: 20050222 Between: Docket: 963 Ganapathi Shankar, also known as Ganapathi Shankarnarayan and Datamatics Limited Coram: Cameron, Lane Jackson JJ.A. Counsel: Anne E. Hardy for Ganapathi Shankar Paul J. Harasen for Datamatics Limited Appeal: From: 2004 SKQB 220 (CanLII) Heard: February 22, 2005 Disposition: Appeal Dismissed (orally) Written Reasons: February 24, 2005 By: The Honourable Mr. Justice Cameron In Concurrence: The Honourable Mr. Justice Lane The Honourable Madam Justice Jackson Cameron J.A. [1] It will not be necessary for us to hear from the respondent. The appellant has failed to persuade us that Mr. Justice Koch erred in any material respect. In other words, we see no tenable basis for interfering with his decision. [2] The debtor clearly committed an act of bankruptcy under ss. 42(1)(e) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as result of the sheriff’s return of nulla bona to the respondent’s writ of execution against the debtor. [3] That left Justice Koch to consider whether to dismiss the petition pursuant to ss. 43(7) of the Act or to stay proceedings on the petition pursuant to ss. 43(11). [4] As for the first, the debtor did not satisfy Justice Koch that he was able to pay his debts or that there existed other sufficient cause to dismiss the petition. Based on the evidence adduced by the debtor, we are of the view there is no basis to conclude that Mr. Justice Koch should have been satisfied of these matters. [5] As for second, concerning ss. 43(11), we note that the subsection contains discretionary power to stay proceedings. That, of course, serves to narrow the basis for intervention on appeal. We cannot say Justice Koch erred in any requisite respect in the exercise of this discretionary power. [6] Accordingly, the appeal is dismissed, with costs on appeal to the respondent to be taxed in the usual way.
Fulltext of judgment follows:[1] It will not be necessary for us to hear from the respondent. The appellant has failed to persuade us that Mr. Justice Koch erred in any material respect. In other words, we see no tenable basis for interfering with his decision. [2] The debtor clearly committed an act of bankruptcy under ss. 42(1)(e) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, as a result of the sheriff's return of nulla bona to the respondent's writ of execution against the debtor. [3] That left Justice Koch to consider whether to dismiss the petition pursuant to ss. 43(7) of the Act or to stay proceedings on the petition pursuant to ss. 43(11). [4] As for the first, the debtor did not satisfy Justice Koch that he was able to pay his debts or that there existed other sufficient cause to dismiss the petition. Based on the evidence adduced by the debtor, we are of the view there is no basis to conclude that Mr. Justice Koch should have been satisfied of these matters. [5] As for second, concerning ss. 43(11), we note that the subsection contains discretionary power to stay proceedings. That, of course, serves to narrow the basis for intervention on appeal. We cannot say Justice Koch erred in any requisite respect in the exercise of this discretionary power. [6] Accordingly, the appeal is dismissed, with costs on appeal to the respondent to be taxed in the usual way.