Pigeon Lake Park Maintenance Ltd. v. Foley, (1997) 205 A.R. 99 (QBM)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 21, 1997
• Citations: (1997), 205 A.R. 99 (QBM)

Pigeon Lake Park Maintenance v. Foley (1997), 205 A.R. 99 (QBM)

MLB headnote and full text

Temp. Cite: [1997] A.R. TBEd. MY.059

Pigeon Lake Park Maintenance Ltd. (plaintiff/defendant by counterclaim) v. Charlotte Foley (defendant/plaintiff by counterclaim)

(Action No. 9503-26278)

Indexed As: Pigeon Lake Park Maintenance Ltd. v. Foley

Alberta Court of Queen's Bench

Judicial District of Edmonton

Funduk, Master in Chambers

May 21, 1997.

Summary:

Trial in an action and a counterclaim started on June 8, 1995 and was completed on November 9, 1995. The defendant obtained a $4,000 judgment in her counter­claim against the plaintiff corporation. On September 11, 1995, the plaintiff transferred to David Chipchar title to a truck it owned. David Chipchar was the son of Raymond Chipchar, the sole principal and guiding mind of the plaintiff. On October 25, 1995, the plaintiff transferred to Raymond Chip­char title to a second truck it owned. The defendant applied to set aside the two trans­fers as fraudulent under the Statute of Eliza­beth.

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

Courts - Topic 102

Stare decisis - Authority of judicial deci­sions - English, American and foreign authorities - English decisions - A Master of the Alberta Court of Queen's Bench held: "I am not aware of any law which binds Canada forever to English law. The Supreme Court of Canada periodically takes a different path than English law. English law may be the starting point for Canadian law. It is not necessarily the finishing point." - See paragraph 33.

Courts - Topic 129

Stare decisis - Authority of judicial deci­sions - Courts of superior jurisdiction - Supreme Court of Canada - Obiter dictum - A Master of the Alberta Court of Queen's Bench held: "The Supreme Court of Canada says that if a point of law was raised and argued before it and decided by it its decision on that point of law cannot be circumvented on the ground that it is obiter." - See paragraphs 30 to 36.

Fraud and Misrepresentation - Topic 1403

Fraudulent conveyances and preferences - Impeachable conveyances and preferences under Statute of Elizabeth (1571) - Inten­tion required - Trial on the defendant's counterclaim began on June 8, 1995 and was completed on November 9, 1995 - The defendant obtained a $4,000 judgment against the corporate plaintiff - On Sep­tember 11, 1995 and on October 25, 1995, the plaintiff transferred title to two trucks it owned to its sole principal and his son personally - The defendant applied to set aside the two transfers as fraudulent under the Statute of Elizabeth - A Master of the Alberta Court of Queen's Bench allowed the application, holding that the intent of the plaintiff's sole principal and of the plaintiff was the same - The Master added that he would be very naive to believe that the son was an innocent purchaser - See paragraphs 16 to 21.

Fraud and Misrepresentation - Topic 1403

Fraudulent conveyances and preferences - Impeachable conveyances and preferences under Statute of Elizabeth (1571) - Inten­tion required - Trial on the defendant's counterclaim began on June 8, 1995 and was completed on November 9, 1995 - The defendant obtained a $4,000 judgment against the plaintiff - On September 11, 1995 and on October 25, 1995, the plain­tiff transferred title to two trucks it owned - The defendant applied to set aside the two transfers as fraudulent under the Sta­tute of Elizabeth - A Master of the Alberta Court of Queen's Bench allowed the appli­cation - The Master discussed the tests for determining intention and held that what­ever test was applied, the result was the same: the "timing of the two transfers was designed to protect the assets of the plain­tiff and to defeat the defend­ant's claim" - See paragraphs 22 to 44.

Fraud and Misrepresentation - Topic 1406

Fraudulent conveyances and preferences - Impeachable conveyances and preferences under Statute of Elizabeth (1571) - Con­ditions precedent to setting aside convey­ance - Trial on the defendant's counter­claim began on June 8, 1995 and was completed on November 9, 1995 - The defendant obtained a $4,000 judgment against the corporate plaintiff - On Sep­tember 11, 1995 and on October 25, 1995, the plaintiff transferred title to two trucks it owned to its sole principal and his son personally - The defendant applied to set aside the two transfers as fraudulent under the Statute of Elizabeth - A Master of the Alberta Court of Queen's Bench allowed the application, holding that the defendant had status to challenge the transfers because she became a creditor when she obtained judgment - See paragraphs 10 to 15.

Cases Noticed:

Dover Corp. Canada Ltd. v. Maison Hold­ings Ltd., [1976] 6 W.W.R. 464 (Alta. Dist. Ct.), consd. [para. 1].

Russell, Re (1882), 19 Ch. D. 588 (C.A.), consd. [para. 10].

Freeman v. Pope (1870), 5 Ch. A. 538 (C.A.), consd. [para. 12].

Hirth, Re, [1899] 1 Q.B. 612 (C.A.), consd. [para. 16].

Burton v. R. & M. Insurance Ltd. and Poole (1977), 9 A.R. 589; 5 Alta. L.R.(2d) 14 (T.D.), consd. [para. 18].

Nuove Ceramiche Ricchetti S.P.A. v. Mastrogiovanni (1988), 76 C.B.R.(N.S.) 310 (Ont. H.C.), refd to. [para. 19].

Optical Recording Laboratories Inc. (Bankrupt), Re (1990), 42 O.A.C. 321; 1 O.R.(3d) 131 (C.A.), refd to. [para. 20].

Sun Life Assurance Co. of Canada v. Elliott (1900), 31 S.C.R. 91, consd. [para. 26].

Sembaliuk Estate, Re (1983), 47 A.R. 287; 27 Alta. L.R.(2d) 223 (Q.B.), revd. (1984), 58 A.R. 189; 35 Alta. L.R.(2d) 193 (C.A.), leave to appeal refused (1985), 58 N.R. 320; 61 A.R. 159; 35 Alta. L.R.(2d) xl (S.C.C.), consd. [para. 29].

R. v. Depagie (1976), 1 A.R. 602; 1 Alta. L.R.(2d) 30 (C.A.), leave to appeal ref­used (1976), 13 N.R. 535; 2 A.R. 88; 32 C.C.C.(3d) 89 (S.C.C.), consd. [para. 32].

Human Rights Commission (Alta.) v. Alberta Blue Cross Plan (1983), 48 A.R. 192 (C.A.), consd. [para. 40].

Lister et al. v. Calgary (City) et al. (1997), 193 A.R. 218; 135 W.A.C. 218 (C.A.), refd to. [para. 42].

Pioneer Trust Co. v. Calgary (City) - see Lister et al. v. Calgary (City) et al.

Jones v. Great Western Railway Co. (1930), 47 T.L.R. 39 (H.L.), consd. [para. 43].

Authors and Works Noticed:

Dunlop, Charles Richard Bentley, Credi­tor-Debtor Law in Canada, pp. 513 [para. 23]; 528 et seq. [para. 14].

Springman, M.A., Stewart, G.R., and MacNaugton, M.J., Fraudulent Convey­ances and Preferences, pp. 13-6.3, foot­note 5.1 [para. 30]; 13-18.3 to 13-27 [para. 34].

Counsel:

R. Philion, for the plaintiff;

W. Danson (McCuaig Desrochers), for the defendant.

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 May 21, 1997.