Ference et al. v. Wohlers et al., (2007) 214 Man.R.(2d) 222 (CA)

JudgeSteel, Chartier and Joyal, JJ.A.
CourtCourt of Appeal (Manitoba)
Case DateApril 25, 2007
JurisdictionManitoba
Citations(2007), 214 Man.R.(2d) 222 (CA);2007 MBCA 68

Ference v. Wohlers (2007), 214 Man.R.(2d) 222 (CA);

      395 W.A.C. 222

MLB headnote and full text

Temp. Cite: [2007] Man.R.(2d) TBEd. JN.003

Lawrence Ference, carrying on business as "Corner Creek Farms" and the said Corner Creek Farms (plaintiffs/appellants) v. Bo Wohlers, carrying on business as "Rockwood Bison Ranch" and the said Rockwood Bison Ranch (defendants/respondents)

(AI 06-30-06520; 2007 MBCA 68)

Indexed As: Ference et al. v. Wohlers et al.

Manitoba Court of Appeal

Steel, Chartier and Joyal, JJ.A.

June 12, 2007.

Summary:

The parties had a largely verbal agreement by which the plaintiff would board his bison herd at the defendant's farm and the defendant would be compensated under a calf sharing arrangement. When the plaintiff attempted to pick up the herd, the defendant refused to release it, claiming that there was money owing for its care and feed. The plaintiff moved for summary judgment, arguing that there was no debt owing. The plaintiff sought an order returning the original herd and his portion of the new calves.

A Master of the Manitoba Court of Queen's Bench, in a decision reported at [2006] Man.R.(2d) Uned. 28, directed the return of the original herd plus nine calves to the plaintiff. The defendant appealed. During the appeal, the plaintiff restricted his motion to a request for partial summary judgment directing the return of his original herd. The defendant relied on the Stable Keepers Act to support his claimed right to retain the original herd.

The Manitoba Court of Queen's Bench, in a decision reported at 204 Man.R.(2d) 230, allowed the appeal and dismissed the plaintiff's motion for partial summary judgment directing the return of his original herd. The court held that the defendant was entitled to claim a lien under the Stable Keepers Act and that the defendant did not lose that right by his failure to post copies of the Act in compliance with s. 6 of the Act. The court held that the mandatory language in s. 6 could be read as permissive. The plaintiff appealed.

The Manitoba Court of Appeal allowed the appeal and granted the plaintiff's motion for partial summary judgment in respect of the original herd. The court held that s. 6 of the Act was mandatory and the defendant's failure to post copies of the Act as required by that section constituted a breach which disentitled him to assert his right to a lien.

Liens - Topic 8725

Livery stable keeper's lien - Detention of animals and effects - Requirement to post copy of Act - Section 6 of the Stable Keepers Act provided that "Every stable keeper shall have a copy of this Act conspicuously posted up in the office, and at least two other conspicuous places in his stable" - The Manitoba Court of Appeal held that s. 6 was a substantive requirement and was mandatory - A stable keeper who failed to comply with s. 6 would not be entitled to claim a lien - The inconvenience or prejudice flowing from a reading of s. 6 as mandatory was not sufficiently serious so as to require that section to be read as directory and reading s. 6 as directory would defeat the purpose of the provision - The court further stated that if the only purpose of s. 6 was to provide notice, and if the requirement was read as directory, the section would become a meaningless and absurd inclusion in an otherwise coherent Act - See paragraph 33.

Liens - Topic 8725

Livery stable keeper's lien - Detention of animals and effects - Requirement to post copy of Act - Section 6 of the Stable Keepers Act provided that "Every stable keeper shall have a copy of this Act conspicuously posted up in the office, and at least two other conspicuous places in his stable" - The Manitoba Court of Appeal held that s. 6 was a substantive requirement and was mandatory - The court stated that "the absence of a stated consequence for non-compliance should not be determinative as to whether s. 6 is mandatory or directory. More important is the consideration of the Act and the provision. Read in the context of the Act, the purpose of which is to provide stable keepers the obvious protection and security associated with a lien, the notice in s. 6 represents an express requirement imposed upon the stable keeper ... To suggest that the absence of a specifically expressed or stated consequence renders the s. 6 requirement a mere procedural directive is to ignore the purpose of the Act and the provision itself. Reading s. 6 as a procedural directive would deprive the provision of meaning and render it mere surplusage to the Act. It would also defeat the provision's purpose" - See paragraphs 36 to 37.

Statutes - Topic 1408

Interpretation - Construction where meaning is not plain - General principles - Avoidance of absurdity - [See first Liens - Topic 8725 ].

Statutes - Topic 1415

Interpretation - Construction where meaning is not plain - General principles - Ambiguity - Choice of meaning to attain purpose of Act - [See both Liens - Topic 8725 ].

Statutes - Topic 2417

Interpretation - Interpretation of words and phrases - General principles - "May" and "shall" - [See both Liens - Topic 8725 ].

Statutes - Topic 2603

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Intention from whole of section or statute - [See second Liens - Topic 8725 ].

Statutes - Topic 5130

Operation and effect - Enabling Acts - Obligatory, mandatory, imperative and absolute Acts - Whether mandatory enactment is obligatory or directory only - [See both Liens - Topic 8725 ].

Cases Noticed:

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 15].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, refd to. [para. 15].

British Columbia (Attorney General) v. Canada (Attorney General), [1994] 2 S.C.R. 41; 166 N.R. 81; 44 B.C.A.C. 1; 71 W.A.C. 1; 91 B.C.L.R.(2d) 1, refd to. [para. 22].

Cleary v. Correctional Service of Canada et al. (1991), 108 N.R. 225; 44 Admin. L.R. 142; 56 C.C.C.(3d) 157 (F.C.A.), refd to. [para. 23].

Hawrish v. Law Society of Saskatchewan et al. (1998), 168 Sask.R. 184; 173 W.A.C. 184; 161 D.L.R.(4th) 760 (C.A.), consd. [para. 23].

Doucet, Re (2000), 136 B.C.A.C. 182; 222 W.A.C. 182; 2000 BCCA 195, refd to. [para. 23].

Blueberry River Indian Band and Doig River Indian Band v. Canada (Minister of Indian Affairs and Northern Development), [1995] 4 S.C.R. 344; 190 N.R. 89, refd to. [para. 25].

Blanco et al. v. Canada Trust Co. et al. (2003), 173 Man.R.(2d) 247; 293 W.A.C. 247; 2003 MBCA 64, refd to. [para. 41].

Homestead Properties (Canada) Ltd. v. Sekhri et al. (2007), 214 Man.R.(2d) 148; 395 W.A.C. 148; 2007 MBCA 61, refd to. [para. 41].

Statutes Noticed:

Stable Keepers Act, R.S.M. 1987, c. S-200; C.C.S.M., c. S-200, sect. 6 [para. 11].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 60 [paras. 17, 21]; 61 to 63 [para. 17]; 262 [para. 14].

Counsel:

A.J. Stacey, for the appellants;

S.A. Zinchuk, for the respondents.

This appeal was heard on April 25, 2007, before Steel, Chartier and Joyal, JJ.A., of the Manitoba Court of Appeal. The following judgment of the Court of Appeal was delivered by Joyal, J.A., on June 12, 2007.

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6 practice notes
  • B.W. v. CFS, (2009) 245 Man.R.(2d) 186 (CA)
    • Canada
    • Court of Appeal (Manitoba)
    • May 25, 2009
    ...Manitoba et al. (2005), 192 Man.R.(2d) 23; 340 W.A.C. 23; 2005 MBCA 11, refd to. [para. 29]. Ference et al. v. Wohlers et al. (2007), 214 Man.R.(2d) 222; 395 W.A.C. 222; 2007 MBCA 68, refd to. [para. Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, ref......
  • Shier v. Manitoba Public Insurance Corp. et al., 2008 MBCA 97
    • Canada
    • Manitoba Court of Appeal (Manitoba)
    • November 30, 2007
    ...1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, consd. [para. 49]. Ference et al. v. Wohlers et al. (2007), 214 Man.R.(2d) 222; 395 W.A.C. 222; 2007 MBCA 68, refd to. [para. Manitoba Public Insurance Corp. v. University of Waterloo et al. (2007), 220 Man.R.(2d) 58......
  • Westland Insurance Company Limited v. Pounden, 2021 BCCA 156
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    • Court of Appeal (British Columbia)
    • April 16, 2021
    ...of those prerequisites are intertwined with s. 3 of the Regulation. [97] The appellants also rely on Ference et al. v. Wohlers et al., 2007 MBCA 68, in support of their position. In that case, the appeal court found that a stable keeper was disentitled to a statutory lien because he had not......
  • Perfanick v. Torre-De-Oro Inc. et al., (2010) 256 Man.R.(2d) 158 (QB)
    • Canada
    • Manitoba Court of Queen's Bench of Manitoba (Canada)
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    ...a genuine issue that he had a claim to a 100' wide lot - See paragraphs 15 to 37. Cases Noticed: Ference et al. v. Wohlers et al. (2007), 214 Man.R.(2d) 222; 395 W.A.C. 222; 2007 MBCA 68, refd to. [para. Jets Plumbing & Heating Co. et al. v. Labmar Construction Ltd. et al., [2007] Man.R......
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6 cases
  • B.W. v. CFS, (2009) 245 Man.R.(2d) 186 (CA)
    • Canada
    • Court of Appeal (Manitoba)
    • May 25, 2009
    ...Manitoba et al. (2005), 192 Man.R.(2d) 23; 340 W.A.C. 23; 2005 MBCA 11, refd to. [para. 29]. Ference et al. v. Wohlers et al. (2007), 214 Man.R.(2d) 222; 395 W.A.C. 222; 2007 MBCA 68, refd to. [para. Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, ref......
  • Shier v. Manitoba Public Insurance Corp. et al., 2008 MBCA 97
    • Canada
    • Manitoba Court of Appeal (Manitoba)
    • November 30, 2007
    ...1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161; 2000 SCC 5, consd. [para. 49]. Ference et al. v. Wohlers et al. (2007), 214 Man.R.(2d) 222; 395 W.A.C. 222; 2007 MBCA 68, refd to. [para. Manitoba Public Insurance Corp. v. University of Waterloo et al. (2007), 220 Man.R.(2d) 58......
  • Westland Insurance Company Limited v. Pounden, 2021 BCCA 156
    • Canada
    • Court of Appeal (British Columbia)
    • April 16, 2021
    ...of those prerequisites are intertwined with s. 3 of the Regulation. [97] The appellants also rely on Ference et al. v. Wohlers et al., 2007 MBCA 68, in support of their position. In that case, the appeal court found that a stable keeper was disentitled to a statutory lien because he had not......
  • Perfanick v. Torre-De-Oro Inc. et al., (2010) 256 Man.R.(2d) 158 (QB)
    • Canada
    • Manitoba Court of Queen's Bench of Manitoba (Canada)
    • July 12, 2010
    ...a genuine issue that he had a claim to a 100' wide lot - See paragraphs 15 to 37. Cases Noticed: Ference et al. v. Wohlers et al. (2007), 214 Man.R.(2d) 222; 395 W.A.C. 222; 2007 MBCA 68, refd to. [para. Jets Plumbing & Heating Co. et al. v. Labmar Construction Ltd. et al., [2007] Man.R......
  • Request a trial to view additional results

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