First City Shopping Centre Group Inc. v. Gleddie, (1991) 114 A.R. 34 (QBM)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: March 04, 1991
• Citations: (1991), 114 A.R. 34 (QBM)

First City Shopping Centre v. Gleddie (1991), 114 A.R. 34 (QBM)

MLB headnote and full text

First City Shopping Centre Group Inc. (applicant) v. Cyril Gleddie and Annette Gleddie (respondents)

(Action No. 9103 01819)

Indexed As: First City Shopping Centre Group Inc. v. Gleddie

Alberta Court of Queen's Bench

Judicial District of Edmonton

Funduk, Master in Chambers

March 4, 1991.

Summary:

A landlord applied for an order for the removal and sale of a tenant's stock in trade allegedly seized pursuant to a distress for rent. The issue was whether a lawful distress was effected within 30 days of removal of the stock in trade from the leased premises, as required by s. 1 of the Distress For Rent Act, 11 Geo. II, c. 19.

A Master of the Alberta Court of Queen's Bench dismissed the application.

Landlord and Tenant - Topic 8785

Distress - Seizure - What constitutes - Tenants removed their stock to their residence on October 31 - On November 2 the sheriff went to the residence to seize the stock under a distress for rent - No one answered - The sheriff contacted the tenants by telephone - The sheriff reported the unsuccessful seizure attempt to the landlord - The stock was physically seized on December 11, outside the 30 day limitation period (Distress for Rent Act, s. 1) - A Master of the Alberta Court of Queen's Bench stated there was no lawful seizure on November 2 - The sheriff did not gain entrance to the residence, did not see the stock and did not tell the tenants while standing on the property that the stock was seized.

Landlord and Tenant - Topic 8785

Distress - Seizure - What constitutes - A Master of the Alberta Court of Queen's Bench accepted that something less than a physical taking and holding could suffice to effect a lawful seizure under a distress for rent - However, intention and words alone would not suffice - The Master opined that describing such seizure as "constructive seizure" was unfortunate, because there was either a seizure or no seizure - There was nothing in between, which the word "constructive" implied - See paragraph 73.

Cases Noticed:

Edmonton Savings and Credit Union v. Weir (1988), 86 A.R. 329 (Q.B.), refd to. [para. 6].

Town of Spruce Grove v. Yellowhead Regional Library Board (1983), 44 A.R. 48 (C.A.), refd to. [para. 7].

Esso Resources Canada Ltd. et al. v. Stearns Catalytic Ltd. et al. (1991), 114 A.R. 27 (C.A.)., refd to. [para. 7].

DeGrouchy v. Sivret (1890-1891), 30 N.B.R. 104 (S.C.), refd to. [para. 23].

Peterson v. Johnston (1911), 17 W.L.R. 596 (Sask. D.C.), refd to. [para. 23].

National Trust Company v. Executors of Leeson (1915-1916), 9 W.W.R. 1132 (Alta. C.A.), refd to. [para. 23].

Campbell v. Halverson, [1919] 3 W.W.R. 657 (Sask. C.A.), refd to. [para. 33].

Little v. Magle (1914), 7 W.W.R. 224 (Sask. D.C.), refd to. [para. 36].

Dodd v. Vail (1913), 3 W.W.R. 796 (Sask. S.C.), refd to. [para. 37].

Corona Lumber v. Brereton, [1917] 1 W.W.R. 706 (Man. K.B.), refd to. [para. 40].

Young v. Dencher, [1923] 1 D.L.R. 432 (Alta. C.A.), refd to. [para. 42].

R. v. Jacobson, [1944] 1 W.W.R. 97 (Alta. S.C.), refd to. [para. 44].

Pacific Finance Acceptance Corporation v. Corbett, [1977] 2 W.W.R. 280 (Alta. D.C.), refd to. [para. 45].

R. v. Vroom, 58 D.L.R.(3d) 565 (Alta. C.A.), refd to. [para. 46].

R. v. Beneficial Finance Co. of Canada (1965), 50 W.W.R.(N.S.) 103 (Alta. D.C.), refd to. [para. 49].

Brook v. Brook (1909), 41 S.C.R. 331, refd to. [para. 50].

Melton Real Estate Ltd. v. National Arts Services Corp. (1977), 6 A.R. 577; 2 Alta. L.R.(2d) 180 (D.C.), refd to. [para. 56].

R. v. Berriault (1985), 70 A.R. 319; 43 Alta. L.R.(2d) 163 (C.A.), refd to. [para. 62].

Adams v. Thompson Berwisk, 1 B.C.L.R.(2d) 97, refd to. [para. 73].

Statutes Noticed:

Distress for Rent Act, 11 Geo. II, c. 19, sect. 1 [para. 2].

Seizures Act, R.S.A. 1980, c. S-11, sect. 18 [para. 62]; sect. 23 [para. 19]; sect. 25(1) [para. 66].

Authors and Works Noticed:

Canadian Encyclopedic Digest (West. 3rd Ed.), vol. 11A, p. 50-46 [para. 48].

Williams & Rhodes, Canadian Law of Landlord and Tenant, vol. 1, pp. 8-61, 8-62 [para. 47].

Counsel:

H.S. Sniderman (Witten Binder), for the applicant;

S.J. Kobewka (Kirwin Kobewka), for the respondents.

This application was heard before Funduk, Master in Chambers, of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on March 4, 1991: