Kindersley District Credit Union Ltd. v. Dahl, (1993) 109 Sask.R. 74 (CA)

• Judge: Sherstobitoff, Lane and Jackson, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: November 25, 1992
• Jurisdiction: Saskatchewan
• Citations: (1993), 109 Sask.R. 74 (CA)

Kindersley District Credit v. Dahl (1993), 109 Sask.R. 74 (CA);

    42 W.A.C. 74

MLB headnote and full text

Kindersley District Credit Union Ltd. (plaintiff\respondent) v. Beverly A. Dahl (defendant\appellant)

(1992 C.A. No. 1135)

Indexed As: Kindersley District Credit Union Ltd. v. Dahl

Saskatchewan Court of Appeal

Sherstobitoff, Lane and Jackson, JJ.A.

March 3, 1993.

Summary:

A credit union sued a debtor to recover a debt arising out of a loan agreement. The debtor pleaded that she need not repay the loan or interest because of ultra vires acts by the credit union. The credit union sought a determination of this point of law under rule 188.

The Saskatchewan Court of Queen's Bench, in a decision reported 99 Sask.R. 234, rejected the debtor's argument and struck out the relevant portions of the debt­or's statement of defence. The debtor applied for leave to appeal and leave was granted only with respect to the right to defend against the claim for interest.

The Saskatchewan Court of Appeal, Lane, J.A., dissenting, allowed the appeal in part. The court restored the debtor's pleading respect­ing its defence to the interest claim where this defence was arguable.

Company Law - Topic 688

Powers - Doctrine of ultra vires - Acts contrary to statute - [See Practice - Topic 2230 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - A credit union sued to recover a debt arising out of a loan agree­ment - The debtor argued it did not have to repay the debt and interest because of ultra vires acts of the credit union - The Saskatchewan Court of Queen's Bench rejected the debtor's argument and struck this portion of the debtor's statement of defence - The Saskatchewan Court of Appeal restored the statement of defence relating to the credit union's interest claim where this was an arguable defence.

Restitution - Topic 2047

Benefit acquired from the plaintiff - Inef­fective transactions - Ultra vires contracts - [See Practice - Topic 2230 ].

Cases Noticed:

Rolland et al. v. Caisse D'Economie Notre-Dame de Quebec (1895), 24 S.C.R. 405, refd to. [paras. 4, 15].

Communities Economic Development Fund v. Canadian Pickles Corp., [1991] 3 S.C.R. 388; [1992] 1 W.W.R. 193; 131 N.R. 81; 76 Man.R.(2d) 1; 10 W.A.C. 1; 85 D.L.R.(4th) 88, refd to. [para. 4].

Sagon v. Royal Bank of Canada (1992) 105 Sask.R. 2; 32 W.A.C. 2 (C.A.), refd to. [para. 5].

Coltman v. Coltman (1881), 19 Ch. D. 64, refd to. [para. 16].

Breckenridge Speedway et al. v. R. (1970), S.C.R. 175; 70 W.W.R.(N.S.) 481; 9 D.L.R.(3d) 142, refd to. [para. 17].

Caledonia Community Credit Union Ltd. v. Haldiman Feedmill Ltd. et al. (1974), 45 D.L.R.(3d) 676; 3 O.R.(2d) 460 (H.C.), refd to. [para. 25].

Amherst Credit Union Ltd. v. Albion Truck and Auto Sales Ltd. and Ross (1979), 34 N.S.R.(2d) 238; 59 A.P.R. 238 (T.D.), refd to. [para. 25].

Caisse Populaire de Morinville Savings and Credit Union Ltd. v. Cliff Bristow Motors Ltd. and Bristow (1983), 55 A.R. 91; 24 B.L.R. 266; 5 D.L.R.(4th) 557; 29 Alta. L.R.(2d) 336 (Q.B.), refd to. [para. 25].

Alberta (Provincial Treasurer) v. Long et al. (1973), 49 D.L.R.(3d) 695 (Alta. T.D.), refd to. [para. 25].

Statutes Noticed:

Bank Act, R.S.C. 1985, c. B-1, generally [para. 10].

Credit Union Act, S.S. 1984-85-86, c. C-45.1, sect. 11(a), sect. 11(b), sect. 11(c), [para. 10].

Interest Act, R.S.C. 1985, c. I-15, gen­erally [para. 12].

Counsel:

H.R. Kloppenburg, for the appellant;

G.J. Scharfstein, for the respondent.

This appeal was heard on November 25, 1992, before Sherstobitoff, Lane and Jack­son, JJ.A., of the Saskatchewan Court of Appeal. The decision of the court was delivered on March 3, 1993, including the following opinions:

Sherstobitoff, J.A. (Jackson, J.A., concur­ring) - see paragraphs 1 to 6;

Lane, J.A., dissenting - see paragraphs 7 to 27.