Agricultural Credit Corp. of Saskatchewan v. Macor Farms Ltd. et al., (1994) 123 Sask.R. 306 (CA)

• Judge: Wakeling, Sherstobitoff and Lane, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 20, 1994
• Jurisdiction: Saskatchewan
• Citations: (1994), 123 Sask.R. 306 (CA)

SACC v. Macor Farms Ltd. (1994), 123 Sask.R. 306 (CA);

    74 W.A.C. 306

MLB headnote and full text

Agricultural Credit Corporation of Saskatchewan (plaintiff/applicant) v. Macor Farms Limited and Richard Materi (defendants/respondents) and Kindersley & District Credit Union Limited (garnishee/respondent)

(Appeal File No. 1924)

Indexed As: Agricultural Credit Corp. of Saskatchewan v. Macor Farms Ltd. et al.

Saskatchewan Court of Appeal

Wakeling, Sherstobitoff and Lane, JJ.A.

September 20, 1994.

Summary:

A secured creditor commenced a simple debt action for $79,000 and obtained a pre-judgment garnishee summons. The debtor moved to set aside the garnishee summons and to have the statement of claim and garnishee summons declared nullities, claim­ing that s. 22 of the Farm Debt Review Act was not complied with. The trial judge declared the statement of claim and the garnishee summons to be nullities. The creditor appealed.

The Saskatchewan Court of Appeal allowed the appeal in part.

Creditors and Debtors - Topic 4243

Garnishment by creditor - Garnishee summons - Service of summons - Section 5 of the Attachment of Debts Act required service of a garnishee summons on a debtor within 20 days after service on the garnishee - Rule 22(2)(b)(ii) allowed service upon a corporation to be in ac­cordance with the Business Corporations Act - Section 269 of that Act allowed service by registered or certified mail addressed to the registered office of the corporation - The Saskatchewan Court of Appeal held that service was valid where the statement of claim and garnishee sum­mons were both served in the manner set out in s. 269 of the Business Corporations Act and the evidence indicated that in the ordinary course of mail it would have been delivered within the period set out in s. 5 - See paragraph 15.

Trade Regulation - Topic 3127

Agricultural lending - Enforcement of security - Notice - Section 22 of the Farm Debt Review Act stated that a secured creditor "who intends to realize on any security of a farmer shall give the farmer written notice" - A secured creditor com­menced a simple debt action and obtained a garnishee summons - The debtor claimed that the statement of claim and the garnishee summons should be declared nullities for lack of notice under s. 22 - The Saskatchewan Court of Appeal held that s. 22 did not apply because the credi­tor was not acting in its capacity as a secured creditor but in its capacity as an ordinary creditor as permitted under the agreement - It was still open to the debtor to avail itself of the provisions of s. 20 of the Act or to simply defend the action.

Cases Noticed:

Royal Bank of Canada v. Hamm (1992), 102 Sask.R. 296 (Q.B.), refd to. [para. 10].

Calvert v. Salmon (1994), 69 O.A.C. 397; 17 O.R.(3d) 455 (C.A.), refd to. [para. 10].

Alberta Agricultural Development Corp. v. Smith et al. (1993), 146 A.R. 17; 13 Alta. L.R.(3d) 338 (Q.B.), refd to. [para. 13].

Canadian Imperial Bank of Commerce v. Secrist (1993), 140 A.R. 111; 10 Alta. L.R.(3d) 342 (Q.B.), refd to. [para. 13].

Berg v. Kingsley Builders Ltd. (1967), 60 W.W.R. 59 (Sask. Dist. Ct.), refd to. [para. 15].

Statutes Noticed:

Attachment of Debts Act, R.S.S. 1978, c. A-32, sect. 3, sect. 5 [para. 6].

Farm Debt Review Act, R.S.C. 1985 (2nd Supp.), c. 25, sect. 2 [para. 9]; sect. 16 [para. 3]; sect. 20 [para. 9]; sect. 22 [para. 1]; sect. 23 [para. 9].

Counsel:

M. Douglas, for the appellant;

D. Campbell, for the respondent.

This appeal was heard by Wakeling, Sher­stobitoff and Lane, JJ.A., of the Saskatchewan Court of Appeal. The decision of the court was delivered orally on Septem­ber 20, 1994, by Sherstobitoff, J.A., with written reasons released on September 29, 1994.