Digest: Canadian Western Bank Leasing Inc. v Blue Hill Excavating Inc., 2018 SKQB 173

• Date: June 18, 2018

Reported as: 2018 SKQB 173

Docket Number: QB17557 , QB 79/16 JCSC

Court: Court of Queen's Bench

Date: 2018-06-18

Judges:

• Keene

Subjects:

• Civil Procedure � Queen�s Bench Rules, Rule 7-5
• Statutes � Interpretation � Personal Property Security Act, 1993, Section 65

Digest: The plaintiff, Canadian Western Bank Leasing Inc., brought an application for summary judgment for default under a lease agreement between it and the defendant, Blue Hill Excavating Inc., regarding the leasing of portable jaw crusher plant. The plaintiff also applied for summary judgment against the defendant individuals, the Hardennes, as guarantors of the lease. The Hardennes did not dispute that Blue Hill defaulted on the lease, their resulting liability under it and the guarantee. However, they argued that the plaintiff made an improvident sale of the crusher and was not entitled to the amount claimed. They submitted the issue of improvident sale required a trial and should not be decided on an application for summary judgment. The plaintiff argued that the personal guarantee provided by the Hardennes precluded them from making the claim of improvident sale because the guarantee contained a waiver provision. The Hardennes submitted that the waiver provision was void under s. 65(3) and s. 65(10) of The Personal Property Security Act, 1993 (PPSA). The issues were: 1) whether summary judgment was appropriate in this case within which there were two sub-issues: i) was there no genuine issue requiring trial because the improvident realization issue was not live because of the terms of the guarantee contract; and ii) was there no genuine issue requiring trial because the improvident realization issues could be properly decided on the basis of the evidence before the court?
HELD: The application was granted and the plaintiff was granted judgment. The court found that it was an appropriate case for summary judgment pursuant to Queen�s Bench rule 7-5. With respect to the first sub-issue, the court first examined the lease and the guarantee within the context of the PPSA. The court found that the waiver provision in the guarantee was void under the PPSA. It determined that the lease that created the debt at the centre of the guarantee was a security agreement under s. 2(1)(pp) and s. 3 and that under s. 2(1)(m), the Hardennes as guarantors were debtors under the PPSA. As guarantors they were entitled to provisions afforded by Part V and s. 65(3) of...