In Ridel v Goldberg, 2019 ONCA 636, the Court of Appeal for Ontario considered whether a judgment creditor was statute-barred from pursuing a claim for contribution and indemnity against the principal of a judgment debtor company. On April 17, 2013, the appellants received a favourable judgment against a registered investment dealer company for negligence, breach of contract and breach of fiduciary duty (the “2013 Judgment”), which was upheld on appeal a year later. On October 25, 2016, following the bankruptcy of the company, the judgment creditor received authorization from the trustee-in-bankruptcy pursuant to section 38 of the Bankruptcy and Insolvency Act to pursue the claim for contribution and indemnity against the principal of the company, Goldberg.
Indcondo Building Corp. v. Sloan, 2010 ONCA 890, involved the interplay between the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (“BIA”) and the Limitations Act, 2002, S.O. 2002, c. 24, in a fraudulent conveyance action brought by a creditor, Indcondo, pursuant to a section 38 order under the BIA. Section 38 provides a mechanism for creditors to proceed with an action when a trustee refuses or fails to act. The issue was whether the discoverability principle under sections 5 and 12 of the Limitations Act is based on the discoverability of the trustee or on the discoverability of the creditor.