Zurich Insurance Co., Re, (1984) 2 O.A.C. 183 (CA)

• Judge: Dubin, Weatherston and Goodman, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 21, 1984
• Jurisdiction: Ontario
• Citations: (1984), 2 O.A.C. 183 (CA)

Zurich Ins. Co., Re (1984), 2 O.A.C. 183 (CA)

MLB headnote and full text

Re Zurich Insurance Co.

Indexed As: Zurich Insurance Co., Re

Ontario Court of Appeal

Dubin, Weatherston and Goodman, JJ.A.

February 21, 1984.

Summary:

A bank made loans to Troy. Troy gave the bank a floating charge on Troy's assets which crystallized on May 7, 1981. The assets were destroyed by fire and the bank claimed against a fire insurer of the assets. The Crown also claimed against a fire insurer by virtue of a Third Party Demand under s. 52 of the federal Excise Tax Act. The Third Party Demand was served on the insurer after the bank's charge crystallized.

The Ontario Court of Appeal held that the Third Party Demand was invalid and that all of the insurance money should be paid to the bank.

Sales and Service Taxes - Topic 614

Sales tax - Collection - Garnishment, Third party demand - Validity of demand - A bank's floating charge crystallized when the bank appointed a receiver of the debtor's assets - The debtor's assets were destroyed by fire and the bank claimed against a fire insurance fund - The Crown also claimed against the fund by virtue of a Third Party Demand (under the Excise Tax Act) served on the insurer after the bank's charge crystallized - The Ontario Court of Appeal held that the bank's claim prevailed because when the Third Party Demand was served the money was payable to the receiver and not to the debtor as required by the statute - See paragraph 11.

Personal Property - Topic 6165

Security interests - Floating charge - Crystallization of charge, notice to fundholder - The Ontario Court of Appeal stated that upon the appointment of a receiver of the assets of a debtor a charge crystallized against an insurance fund but that notice to the fundholder was necessary to protect the security - See paragraph 7.

Cases Noticed:

Illingworth v. Houldsworth, [1904] A.C. 355, refd to. [para. 3].

MacKay and Hughes (1973) Ltd. v. Martin Potatoes Inc. and Dominion Storest Ltd. (1981), 40 C.B.R.(N.S.) 80, not folld. [para. 7].

Ward v. Duncombe, [1893] A.C. 369, refd to. [para. 7].

Industrial Development Bank v. Valley Dairy Limited and MacDonald, [1953] O.R. 70, refd to. [para. 7].

Bank of Montreal v. Union Gas Co. of Canada Ltd., [1969] 2 O.R. 776, refd to. [para. 9].

Attorney General of Canada v. Royal Bank of Canada (1978), 13 A.R. 318; 29 C.B.R.(N.S.) 227, refd to. [para. 9].

Statutes Noticed:

Excise Tax Act, R.S.C. 1970, c. E-13, sect. 52 [para. 8].

Counsel:

G.E. Taylor, for the appellant, Bank of Nova Scotia;

P.A. Vita and C.P. Lyon, for the respondent, Attorney General of Canada.

This appeal was heard by Dubin, Weatherston and Goodman, JJ.A., of the Ontario Court of Appeal on November 22, 1983.

The judgment of the Court of Appeal was delivered by Weatherston, J.A., and was released on February 21, 1984.