Supreme Court of Canada
Massey-Ferguson Finance Co. of Canada Ltd. v. Kluz, [1974] S.C.R. 474
Date: 1973-06-29
Massey-Ferguson Finance Company of Canada Limited (Defendant) Appellant;
and
Edward Kluz (Plaintiff) Respondent.
1973: April 27, 30, May 1; 1973: June 29.
Present: Martland, Judson, Ritchie, Spence and Laskin JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN
Conditional sales—Repossession—Notice of intention to repossess served—Act amended to provide new and more stringent procedure—Right to repossess not exercised until after coming into force of new legislation—Purchaser entitled to remedies given by new legislation—The Limitation of Civil Rights Act, R.S.S. 1965, c. 103 [am. 1970, c. 37, s. 3].
APPEAL from a judgment of the Court of Appeal for Saskatchewan, allowing an appeal from a judgment of Johnson J., whereby respondent’s claim for the relief given under s. 19.I of The Limitation of Civil Rights Act (Sask.), as amended, was dismissed. Appeal dismissed.
David H. Wright and C.J.W. Biss, for the defendant, appellant.
A.R. Chorneyko, for the plaintiff, respondent.
The judgment of the Court was delivered by
JUDSON J.—The appellant, Massey-Ferguson Finance Company of Canada Limited, is the holder of a conditional sales agreement for the sale of a combine made by one of its dealers to Edward Kluz in 1966. On January 28, 1970, payments being seriously in default, it served a notice of intention to repossess pursuant to The Limitation of Civil Rights Act, R.S.S. 1965, c. 103. The service of this notice gave Kluz the right to apply to a judge within a stated time for a hearing. The Act gave the judge wide powers to deal with the matter. However, in this case
[Page 475]
the purchaser did nothing and his right to apply to the judge was at an end. Massey-Ferguson was then in a position to repossess the combine.
Both Courts are in agreement that repossession was not effected until May 28, 1970. In the meantime, there had been a serious amendment to The Limitation of Civil Rights Act which came into force on April 18, 1970. As of that date, the old sections dealing with repossession were repealed and a new and more stringent procedure was substituted. It is undisputed that this new procedure was not complied with.
Kluz brought his action for the relief given under s. 19.I of the new legislation, which reads:
19.I. If a creditor takes possession of an article in contravention of sections 19.A to 19.E or disposes of an article in contravention of section 19.M or in contravention of an order of a judge:
(a) the agreement is thereupon determined;
(b) the debtor is released from all liability under the agreement;
(c) the debtor is entitled to recover from the creditor in an action for money had and received all sums paid by the debtor under the agreement or under any other security given by him in respect thereof.
The trial judge held that the notice served under the old Act and the failure of the purchaser to do anything about it gave Massey-Ferguson a right to repossession which was not affected by the amendment which came into force on April 18th. This right was validly exercised by the seizure on May 28th.
The Court of Appeal reversed this decision and allowed the purchaser’s claim. It held that compliance with the 1965 legislation did not create the right to repossess. That right existed by virtue of the contract. The service of the
[Page 476]
original notice and its disregard merely removed a bar to the right to repossess. This right was never exercised under the old legislation. It was exercised after the new legislation came into effect on April 18, 1970. The Court of Appeal held that the new legislation governed any repossession that took place after its coming into force and that its requirements had to be complied with. Kluz was therefore entitled to the remedies given by s. 19.I quoted above.
I would affirm the reasons of the Court of Appeal and dismiss the appeal with costs.
Appeal dismissed with costs.
Solicitors for the defendant, appellant: MacDermid, Wright, Dickson, Molloy & Biss, Saskatoon.
Solicitors for the plaintiff, respondent: Pillipow, Chorneyko & Kotyk, Wadena.
Email this Content