Bank of Montreal v. Scott, (2013) 415 Sask.R. 58 (QB)

• Judge: Rothery, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: February 25, 2013
• Jurisdiction: Saskatchewan
• Citations: (2013), 415 Sask.R. 58 (QB);2013 SKQB 64

Bk. of Mtrl. v. Scott (2013), 415 Sask.R. 58 (QB)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. MR.041

Bank of Montreal (plaintiff) v. Shane Scott and Michelle Scott (defendants)

(2012 Q.B. No. 1331; 2013 SKQB 64)

Indexed As: Bank of Montreal v. Scott

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Rothery, J.

February 25, 2013.

Summary:

The Bank of Montreal obtained an order appointing an interim receiver (PWC) of the assets of the Scotts (the debtors). The ownership of the debtors' cattle was disputed. PWC obtained a claims process order. The Guckerts (the claimants) disputed the decision of PWC, and filed an application as provided by the claims process order. As a preliminary matter, the Bank took the position that the application was an appeal on the record of PWC's decision, and the standard of review was that of an appellate court. The claimants disagreed. The court ordered that it would accept all affidavit evidence.

The Saskatchewan Court of Queen's Bench rejected the Bank's proposition that the application was an appeal on the record. Finding the affidavit evidence so contradictory, the court exercised its discretion and directed a trial of the question of ownership of the cattle.

Receivers - Topic 2810

Property - General - Claims process orders (incl. review of) - The Bank of Montreal obtained an order appointing an interim receiver (PWC) of the debtors' assets - The ownership of the debtors' cattle was disputed - PWC obtained a claims process order - A claimant disputed the decision of PWC and filed an application for a determination of the validity of the claimant's interest in the cattle, as provided by the claims process order - As a preliminary matter, the Bank took the position that the application was an appeal on the record of PWC's decision, and that the standard of review was that of an appellate court - The claimants disagreed - The court ordered that it would accept all affidavit evidence - The Saskatchewan Court of Queen's Bench rejected the Bank's proposition and, finding the affidavit evidence so contradictory, directed a trial of the question of ownership of the cattle - "[N]ot all claims process orders are the same. One must consider the nature and extent of the order to determine whether the application before the court is actually an appeal on the record. This claims process order allows for the court to determine the validity of a claim if it has been disallowed by a receiver. The onus of proof is upon a claimant to prove ownership, but a claimant is entitled to a hearing on the question." - See paragraph 18.

Cases Noticed:

Hertz v. 1593658 Ontario Inc. (Bankrupt) (2011), 410 Sask.R. 1; 2011 SKQB 379, refd to. [para. 8].

Sran v. Sands & Associates, [2010] B.C.T.C. Uned. 937; 69 C.B.R.(5th) 99; 2010 BCSC 937, refd to. [para. 8].

Big Sky Farms Inc. et al., Re (2010), 360 Sask.R. 76; 70 C.B.R.(5th) 88; 2010 SKQB 255, refd to. [para. 10].

General Motors Corp. v. Tiercon Industries Inc., [2010] O.T.C. Uned. 3479; 62 C.B.R.(5th) 90; 2010 ONSC 3479, affd. [2010] O.A.C. Uned. 526; 70 C.B.R.(5th) 223; 2010 ONCA 666, refd to. [para. 11].

Counsel:

D.G. Gereke, for the plaintiff;

S.A. Busse, Q.C., for the defendants;

M. Russell, for the Receiver, PricewaterhouseCoopers Inc.;

R.B. Hunter, Q.C., for Sheldon and Belinda Guckert.

This application was heard before Rothery, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following fiat, dated February 25, 2013.