Supreme Court

S C CW IE CiVl IN THE SUPREME COURT OF THE NORTHWEST TE.RRITORIES IN THE M/iTTER OF the Seizures Ordinance, R.O.N.W.T. Ch. S-7, as amended; AND IN THE MATTER OF that certain seizure made the 30th dav of June, A.D. 1977. t- t: T W E E N •: CANADIAN IMPERIAL BANK OF COr^MERCE, APPLICANT AND: ROGER MOORE, in his capacity as Sheriff of the Northv/est Territories,

RESPONDENT Counsel: W.Stefura, for the Applicant A. Brien, for Sheriff Roger Moore C. Dalton for Suine-On Enterprises Ltd. No one appearing for Fred Norris, William Walmsley, or any other interested pc-r̂ son.

REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE C.F. TALLIS WITH RESPECT TO THE ISSUE INVOLVING SHINE-ON ENTERPRISES LTD.

I have already delivered reasons for judgment under date of May 2 9th, 1978 in connection v/ith tv/o mobile hom.e units more particularly described as: ^

- 2 -I (a) One 1968 12'x64' Safeway Mobile Home, Serial No. SW02 836, Bailee - Fred Norris (b) One 19 66 10'x45' Glendale .''obile Home, Serial No. 80853, Bailee - Fred Norris.

An affidavit dated May 2nd, 1978 has nov/ been filed on behalf of Shine-On Enterprises Ltd. The affidavit sv/orn by Douglas Shinnan states as follov.'s:

"I, DOUGLAS SHINNy\2] of the Town of Inuvik in the Northv/est Territories, Manager, l-UZtiE OATH AND SAY AS FOLLOWS:

1. THAT I am an Officer and Director of Shine-On Enterprises Ltd. and as such have personal knov/ledge of the matters herein deposed to except where alleged to be on information and belief.

2. THAT I made an Affidavit on behalf of Shine-On Enterprises Ltd. in respect of monies ov/ed to the Company by VJilliam Walmsley the subject of the within seizure on the 17th day of April, A.D. 1978.

3. THAT I have had the opportunity of reviev/ing my financial records and it appears that certain information in that Affidavit was incorrect.

4. THAT from June of 1975 to May of 1976 in respect of units numbered Four (4) and Five (5) set out in the Affidavit of Garry Cecil Donaghy, Mr. William VJalmsley paid me the sum of ONE THOUSî .:-]D EIGHT HUNDPvED AND -SEVENTY FIVE ($1,875.00) DOLLJiRS for rent.

5. THAT I neglected during that period to render and invoice in respect of one of the trailers for the months of February and March, 19 7 6 which sum amounted to TWO HUNDRED AND FIFTY ...T.̂ SO . GO) DOLLARS.

6. THAT from une rr.onth of June 1976 till the end of jun-: 1977, Mr. VJilliam Ivalmsley was indebted to Shioe-On Enterprises Ltd. in the sum of THREE THOUSAxND TWO HUIN!DPJ:D 7LND FIFTY ($3,250.00) DOLLARS for rent.

7. THAT from the month of July 19 77 to the month of March 1978 inclusive, Mr. William Walmsley was indebted to Shine-On Enterprises Ltd. in the sum of ^ ^

- 3 -• "TWO THOUSAND TV70 HUNDRED AND FIFTY ($2,250.00) DOLLARS for rent. 8. THAT my total claim for rent from Mr. William Walmsley to the 31st dav of March, A.D. 1978 is the sum of FIVE THOUS.̂ û D SEVEN HUNDRED i\ND FIFTY ($5,750.00) DOLLARS as detailed above and not as set out in my Affidavit of the 17th of .̂ vpril, 1978.

9. THAT the said units are still located on property owned by Shine-On Enterprises Ltd.

10. THAT in all other respects my Affidavit of the 17th day of April, A.D. 1978 is correct. 11. THAT I make this Affidavit to further clarify the claim of Shine-On Enterprises Ltd. in respect of Mr. William Walmsley. SWORN BEFORE ME at the Tov/n) of Inuvik, in the Northwest) Territories, this 2nd day ) ' • " of May, A.D. 1978. ) "Doug Shinnan" ) Douglas Shinnan

) A Comi-aissloner for Oaths in) and for the Northwest Territories, (My Commission expires: 14/10/79) " Learned counsel for the applicant submitted that the Sheriff should disregard the seizure affected by Sh.ine-On Enterprises Ltd. on the 30th day of September, 19 77. In support of his position he relied on the case of xMclton Real Estate Ltd. v. National Arts Services Corporation Ltd. and Cross Arctic Transport Ltd. [1977] 3 W.W.R. 248.

After considering this matter, I adopt the reasoning of McFadyen D.C.J, particularly at page 253: "A similar problem v/as considered by the Chief Justice of the Sas):atchev/an Court of Queen's Bench in V-Jestern Mobile Homes Ltd. v. Gaudet, [1971] 4 W.W.R. 398- Bence C . J . Q 7 B ~ stated at p. 4 00: ^^ ^

- 4 'In my opinion, the landlord was entitled to distrain for the rent when he did and that his right was not affected by the prior seizure under ) the chattel mortgage and I so find.' The provision relating to the right of the landlord to distrain is similar to s. 19 of The Seizures Act. It is not clear from the reasons for judgment v/hether the seizure on behalf of the chattel mortgagee was made by the sheriff, which appears to be required in -the circumstances by The Distress Act, R.S.S. 1965, c. 99. The reasons for. judgment do not disclose that the question of the chattels being in custodia legis was argued before the learned Chief Justice. This decision is distinguishable on that basis.

The applicant submitted that only such goods as are removed by the sheriff and are retained in his actual custody are in custodia legis. This v/as not the position at comn-ion law, and is not the position under s. 16 of The Seizures Act. There is no evidence that the seizure was abandoned, or that the chattel mortgagee lost his rights under the seizure because of delay or otherwise. The provisions of s. 16 of The Seizures Act authorize the procedure followed in this case. Section 25(2) provides:

•* (2) Any seizure made pursuant to this Act shall be deemed to be a continuing seizure (a) until such time as the sheriff by notice in writing releases the seizure, or (b) until the goods or property under seizure have been sold.'

I. therefore,- find that,- following seizure by the sheriff under the distress warrant issued by Cross Arctic, there v/ere no goods or chattels which the landlord could distrain for rent. The landlord is, therefore, left to his other remedies to recover the rent ov/ing. Cross Arctic is entitled to be paid in priority to the claim of Melton. It is clear that there will be no excess."

Under the circumstances I according].y hold that the purported seizure effected by Shine-On Enterprises Ltd. of the mobile homes in question is a nullity and the Sheriff is entitled to disregard the same. I also find that this is an appropriate

- 5 -I case for an order giving the applicant ].eave to remove the following goods which are presently under seizure and I direct tha-i the applicant may sell the same by private sale:

One 1967 10'x56' ParJcwood Mobile Home, Serial No. 2 4 67, Bailee - Canadian Imperial Bank of Commerce

One 1972 10'x38' Tisstington, Serial No. 11674, Bailee - Canadian Imperial Bank of Commerce. Once again I would point out that the applicant is not relieved of its responsibility to obtain the highest possible price when effecting a private sale and if there is any excess over the applicant's claim then this must be properly accounted for as required by law.

Under the circumstances there will be no order as to costs. DATED at the City of Yellov/knife, in the Northwest Territories, this 12th day of June, A.D. 1978.

C.F. Tallis, J.S.C,

S.C. #424! IN THE SUPREME COURT OF THE NORTLr;-JE S T TE RRI TORIES IN THE MATTER OF the Seizu: Ordinance, R.O.N.W.T. Ch. ; as amended;

AND IN THE MATTER OF that < Seizure made the 30-*"h c1̂'-' •' A.D. 1977. B E T W E E N C7Vl^ADIAi\^ IMPERIAL B/iNK OF C0Mir4ERCE

APPLIC7 AND; ROGER MOORE, i n h i s c a p a c i t S h e r i f f o f t h e N o r t h v / e s t T e r r i t o r i e s

RESPONE

REASONS FOR JUDGMENT OF THE HONOURABLE MR. J U S T I C E C. F . TJ' WITH RESPECT TO THE ISSUE INVCI SHINE-ON E N T E R P R I S E S LTD. ^