II. ON WHAT BASIS DO WE WANT TO CONTINUE TO CONFER SPECIAL STATUS ON THE COMMERCIAL ENTERPRISES THAT THESE LIENS REPRESENT?
Of the remaining liens, some Committee members questioned the
continuing need for the hotelkeepers' lien. Practically speaking most hotels require an imprint of a credit card to secure payment. In those cases where this is not done, we concluded that the usual enforcement mechanisms to secure payment of an unsecured debt should be utilized.
The Uniform Hotel Keepers Act should be amended to strike out those provisions granting a lien to hotel keepers.
III. WHETHER THE REMAINING TYPES OF LIENS SHOULD BE CONTINUED AS NON-POSSESSORY LIENS AFTER POSSESSION IS RELINQUISHED?
The Alberta Report recommended that the liens of repairers, storers, common carriers, agisters, hotel keepers, threshers and wood workers be placed in one statute and be allowed to exist even though the lienor does not have possession of the item that is the subject of the lien. The purpose of this part is to explore that decision in relation to the liens of repairers, storers and common carriers which are the only liens remaining with which the Committee is now to be concerned.
Of this group and prior to the enactment of the Repairers' and Storers' Liens Act, the only non-possessory lien recognized in Canada was the garagekeeper's lien. Storers, other types of repairers and carriers were required to retain possession in order to maintain the lien. When the garagekeepers' Acts were passed, the justification for allowing the garagekeeper to give up possession was to allow the chattel to be put back into use in the community. This was considered to be especially important where the item repaired was itself a means of earning money. Another justification was to compensate for the fact that most garagekeepers do not have storage facilities for the large ticket items they repair. But, as the Repairers' and Storers' Liens Act and the Alberta Report recognized, if an appropriate mechanism can be developed to protect third parties, the reasons to permit release of collateral in the context of garagekeeper's legislation are equally applicable to all chattels which have been stored, improved or repaired. Furthermore, the Alberta Report recommended that anyone who repairs or improves any type of chattel should be entitled to a lien. With this extension of the lien, it is appropriate to extend the garagekeepers' concept of allowing the lienor, if it wishes to do so, to give up possession and register its lien with respect to any type of goods. This is a logical extension of the garagekeeper's lien.
Like the repairer's lien above, the Alberta Report recommended that the storer (i.e., the warehousekeeper) who gives up possession may register a lien if the lienor obtained a signed acknowledgement of the indebtedness. Again, no objection to this extension of the existing warehousekeeper's lien has been identified. It is left entirely to the discretion of the storer whether possession will be restored to the person who engaged the storer's services. It can be conducive to harmonious business relations to return the goods to such person, and from time to time, the item so released will be an item capable of generating money. It also allows a repairer who has storage charges to collect the debt for the repair and for storage in the same way.
This approach is also consistent with the Repairers' and Storers' Liens Act, which provides that any person who "alters, improves, restores or maintains" personal property is entitled to a lien on the personal property regardless of the nature of the personal property, and may perfect that lien by registration if possession is relinquished (see the Repairers' and Storers' Liens Act, ss. 7(1) and (5)).
A common carrier and a storer play similar roles in relation to the goods of others. Common carriers transport goods but also store during transit and until pick-up. Common carriers should be treated the same as storers in the proposed legislation.
The lien of a repairer, storer or common carrier should exist as a non-possessory lien after the item is released.