



COURT OF APPEAL FOR ONTARIO

CITATION: Johnson v. Fisher, 2020 ONCA 613

DATE20200929

DOCKET: C67750

Pepall, Benotto and Coroza JJ.A.

BETWEEN

Dalton Johnson a.k.a. Bill
    Jamieson

Plaintiff (Appellant)

and

Rosemary
    Anne Fisher

Defendant (Respondent)

J. Richard Forget, for the appellant

Adrienne Lei, for the respondent

Heard and released orally by
    videoconference: September 25, 2020

On appeal from the order of Justice Sandra
    Nishikawa of the Superior Court of Justice, dated November 27, 2019.

REASONS FOR DECISION


[1]

The appellant filed an assignment into
    bankruptcy on June 14, 2017.  He subsequently commenced an action against the
    respondent for damages for solicitors negligence.  At the time, he was an
    undischarged bankrupt.

[2]

The motion judge properly struck out his claim
    on the basis of lack of legal capacity.

[3]

Under s. 71 of the
Bankruptcy and Insolvency
    Act
, R.S.C. 1985, c. B-3, on bankruptcy, a bankrupt ceases to have any
    capacity to dispose of or otherwise deal with their property, which shall,
    subject to the Act and to the rights of secured creditors, pass to and vest in
    the trustee in bankruptcy. Property includes a cause of action.

[4]

In this case, the appellant had no power to
    initiate the action against the respondent while still an undischarged bankrupt
    as the cause of action vested in the trustee.

[5]

For these reasons, the appeal is dismissed. 
    There will be no order of costs.

S.E. Pepall
    J.A.

M.L. Benotto
    J.A.

S. Coroza
    J.A.


