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LIENS - Possessory liens - Storer’s liens - Owner’s remedies - Demand for surrender of possession

Monday, January 22, 2018 @ 12:50 PM  

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Appeal by towing companies from the application judge’s decision dismissing their application for an exemption under s. 89(1) of the Indian Act (Act). The appellant towing companies were owned by members of the Six Nations of Grand River Reserve, Brant County. They had towed and stored vehicles insured by the respondent after the vehicles were involved in accidents or stolen. After the accidents or thefts, ownership transferred to the insurance company. There was a dispute among the parties regarding towing and storage fees. The insurance company brought applications under the Repair and Storage Liens Act (RSLA) to permit it to retrieve the vehicles in exchange for payment of money into court to the credit of any actions by the appellants for their fees. The appellants refused to release the vehicles. They brought an application seeking declaratory relief to the effect that ss. 23 and 24 of the RSLA were not available to the respondent. They argued that they had acquired a property interest in the vehicles and pursuant to s. 89(1) of the Act the vehicles were exempt from execution or seizure. The application judge held that the RSLA was a provincial law of general application, and dismissed the appellants' application for exemption. The appellants were ordered to immediately release the vehicles to the respondent. On appeal, the appellants submitted that the application judge erred in his interpretation of the interaction of the RSLA and the Indian Act. They asserted that "personal property" in s. 89(1) of the Act should be defined broadly to include all choses in action and evidence of debt, including liens. Their position was that where assets sought to be attached belong to an Indian or a Band, and when the assets were located on a reserve, the property could not be attached by non-Indian parties.

HELD: Appeal dismissed. The Court accepted the respondent's submission that s. 89(1) of the Act only protected against seizure from creditors or the Crown. The respondent was a debtor not a creditor. Accordingly, s. 89(1) of the Act did not apply to the respondent as a non-creditor and the the appellants could not claim the protection of that provision.

Taylor's Towing v. Intact Insurance Co., [2017] O.J. No. 6556, Ontario Court of Appeal, C.W. Hourigan, D.M. Brown JJ.A. and S.G. Himel J. (ad hoc), December 15, 2017. Digest No. TLD-January222018002