Digest: Banbury v Westana Asset Management, 2018 SKQB 214

Date:July 18, 2019

Reported as: 2018 SKQB 214

Docket Number: QBG 654/18 JCR , QB18213

Court: Court of Queen's Bench

Date: 2019-07-18

Judges:

  • Danyliuk

Subjects:

  • Statutes � Interpretation � Saskatchewan Farm Security Act, Section 48
  • Statutes � Interpretation � Farm Debt Mediation Act, Section 21

Digest: The applicants applied for a hearing pursuant to s. 50 of The Saskatchewan Farm Security Act (SFSA) after the respondent served them with a Notice of Intention to Take Possession of certain implements and equipment pursuant to s. 48 of the SFSA because the applicants had leased two implements from the respondent and had fallen into arrears under the lease terms. In August 2017, the respondent served a notice under s. 60 of The Personal Property Security Act, 1993 plus a Notice of Intention to Enforce Security under the Bankruptcy and Insolvency Act. In January 2017, it served the s. 48 notice under the SFSA and in May 2018, it served a Notice of Intention to Enforce Security under the Farm Debt Mediation Act (FDMA). The respondent then informed the court that it acknowledged that prior notices served became invalid upon delivery of the notice under the SFSA and it advised that notices had been re-served upon the applicants. It applied to adjourn the matter sine die. The issues were: 1) whether the respondent properly served the mandatory statutory notices to entitle it to take possession of the implements; and 2) whether the matter should be adjourned.
HELD: The court found with respect to each issue that: 1) the respondent had not properly served the required statutory notices in the correct order and was not in a legal position to take possession of the implements. The Court of Appeal had decided in Chmil that notices under s. 21 of the FDMA must be served before the notice under s. 48 of the SFSA. As a result, the s. 48 SFSA notice was void in this case and the respondent could not effect seizure until it had complied with all the requirements of federal and provincial legislation beforehand; and
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