Agricredit Acceptance Canada Ltd. v. Muskowekan Band et al., 2001 SKQB 428

• Judge: Zarzeczny, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: September 17, 2001
• Jurisdiction: Saskatchewan
• Citations: 2001 SKQB 428;(2001), 212 Sask.R. 102 (QB)

Agricredit v. Muskowekan Band (2001), 212 Sask.R. 102 (QB)

MLB headnote and full text

Temp. Cite: [2001] Sask.R. TBEd. OC.021

Agricredit Acceptance Canada Ltd. (applicant) v. Muskowekan Band, James Silcox, R.K. Ventures Inc. and Borisko Holdings Ltd., Donlevy and Company and Richard Gabruch (respondents)

(2001 Q.B.G. No. 1186; 2001 SKQB 428)

Indexed As: Agricredit Acceptance Canada Ltd. v. Muskowekan Band et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Zarzeczny, J.

September 17, 2001.

Summary:

Silcox purchased a swather. Agricredit Acceptance had a purchase money security interest. Silcox defaulted and subsequently abandoned the swather on the Muskowekan First Nations Reserve. To protect the swather from the elements and vandalism and to preserve its value, the Band kept the swather in a heated storage shed for 2.5 years. The Band claimed, inter alia, that it had a possessory lien and refused to release the swather to Agricredit. Agricredit applied for relief.

The Saskatchewan Court of Queen's Bench held that the Band did not have a possessory lien. The court ordered the Band to deliver up the swather to Agricredit. If the Band failed to deliver up the swather, Agricredit had leave to issue a further order authorizing its appointed representative to enter onto reserve lands for the purposes of obtaining possession of the swather.

Creditors and Debtors - Topic 2107

Seizure or attachment of debtors' property - General - Location of property - Indian reserve - Silcox abandoned a swather on the Muskowekan First Nations Reserve - Agricredit held a purchase money security interest in the swather and sought to repossess it - The Band denied Agricredit and its agents access to the reserve - The Saskatchewan Court of Queen's Bench held that the Band was not lawfully entitled to retain possession - The court ordered the Band to deliver up the swather to Agricredit - If the Band failed to deliver up the swather, Agricredit had leave to issue a further order authorizing its appointed representative to enter onto reserve lands for the purposes of obtaining possession of the swather - See paragraphs 36 to 40.

Creditors and Debtors - Topic 2252

Seizure or attachment of debtors' property - Exemptions - Indians - Silcox abandoned a swather on the Muskowekan First Nations Reserve - Agricredit held a purchase money security interest in the swather - To protect the swather from the elements and vandalism and to preserve its value, the Band kept the swather in a heated storage shed - The Band claimed that it was entitled to be paid for storage and claimed that it had a personal property interest in the swather that was protected by s. 89 of the Indian Act (exemption from alienation) - The Saskatchewan Court of Queen's Bench held that the only interest the Band had in relation to the swather was a claim in debt for storage (a claim for a possessory lien was rejected) - Although it could be argued that any indebtedness of Silcox or Agricredit to the Band was property of the Band and, therefore, subject to s. 89 protections, that did not apply to the swather itself - Accordingly, any protection claimed by the Band with respect to delivering up possession of the swather based upon s. 89 must also be dismissed - See paragraph 35.

Indians, Inuit and Métis - Topic 822

Personal or legal rights - Property exempt from alienation - Personal property - What constitutes - [See Creditors and Debtors - Topic 2252 ].

Indians, Inuit and Métis - Topic 5518

Lands - Reserves - Entry onto reserve to effect seizure - [See Creditors and Debtors - Topic 2107 ].

Liens - Topic 2053

Particular or possessory lien - Creation at common law - When available - Silcox abandoned a swather on the Muskowekan First Nations Reserve - To protect the swather from the elements and vandalism and to preserve its value, the Band kept the swather in a heated storage shed for 2.5 years - The Band claimed that it had a possessory lien at common law upon the swather until storage fees were paid - The Saskatchewan Court of Queen's Bench held that the Band did not have a lienable interest at common law upon the swather - At common law a possessory lien was not recognized for persons providing warehousing or storage absent a proven agreement providing a contractual right of lien - There was no evidence that the Band had an implied or express consent or an agreement to place the swather in storage - See paragraphs 11 to 33.

Cases Noticed:

Bishop Machinery and Supply Co. v. Breault, [1986] S.J. No. 625 (Q.B.), refd to. [para. 13].

General Electric Capital Equipment Finance Inc. v. York Auto & Truck Collision Ltd. (1988), 9 P.P.S.A.C. 61 (Ont. Dist. Ct.), refd to. [para. 15].

Senft and Hicks v. Bank of Montreal, Twilight Trucking Ltd. and Senft (1986), 69 A.R. 35 (Q.B.), refd to. [para. 18].

Continental Bank of Canada v. Mogensen (Henry) Transport Ltd., [1984] 5 W.W.R. 110; 54 A.R. 27 (Q.B. Master), refd to. [para. 20].

Hatton v. Car Maintenance Co., [1915] 1 Ch. 621, refd to. [para. 25].

Beaver River Community Futures Development Corp. v. Hansen and Kalinowski Trucking Ltd. (1995), 135 Sask.R. 300 (Q.B.), refd to. [para. 27].

Mitchell and Milton Management Ltd. v. Peguis Indian Band et al., [1990] 2 S.C.R. 85; 110 N.R. 241; 67 Man.R.(2d) 81, refd to. [para. 35].

Houston v. Standingready et al., [1991] 1 W.W.R. 744; 88 Sask.R. 316 (C.A.), refd to. [para. 35].

Statutes Noticed:

Indian Act, R.S.C. 1985, c. I-5, sect. 89(1) [para. 34].

Authors and Works Noticed:

Canadian Encyclopedic Digest (Ont.) (3rd Ed. 1982) (1995 Looseleaf, Release 32, 1982), vol. 19, p. 86-35 para. 74 [para. 17].

Macklem, Douglas N., and Bristow, David I., Construction and Mechanics' Liens in Canada (5th Ed. 1985), at pp. 579, 580 [para. 21].

Wood, Roderick, and Wylie, Michael, Non-Consensual Security Interests in Personal Property, (1992) 30 Alta. L. Rev. (No. 4) 1055, p. 1058 [para. 26].

Wood, Roderick, Report on Liens (1992), pp. 6 [para. 24]; 11, 12 [para. 25].

Counsel:

James A. Morrison, for the applicant, Agricredit Acceptance Canada Ltd.;

Shelley J. Pillipow, for the respondent, Muskowekan Band;

The remaining respondents were not represented.

This application was heard by Zarzeczny, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following decision on September 17, 2001.