X. WHAT ARE THE APPROPRIATE CONFLICTS OF LAWS RULES FOR LIENS?
A useful adjunct to the Alberta Report in the context of a Uniform Liens Act is the establishment of conflict of laws rules for non-possessory liens. One possible approach is to include the PPSA conflict of laws with the other provisions to be incorporated by reference into the Uniform Liens Act. This would make applicable those provisions of the PPSA pertaining to security interests in goods. The inclusion of the applicable Uniform PPSA conflicts of laws provisions would mean:
(a) the validity, perfection and effect of perfection or non-perfection of the lien would be determined by the law of the jurisdiction where the collateral was situated when the lien arose (see: UPPSA s. 4(1));
(b) a lien which arose prior to goods being brought into a province would continue perfected in the province as against a buyer in good faith if the lien was registered in the province prior to acquisition (see: UPPSA, s. 4(2)(a));
(c) a lien in goods registered under the law of the jurisdiction in which the goods were situated before the lien attached would continue in the province as against all other persons, if the lien was registered in the province:
(i) within 60 days after the day the goods were brought into the province;
(ii) within 15 days after the day the lienholder received notice that the goods had been brought into the province; or
(iii) prior to the day that registration ceased under the law of the jurisdiction in which the goods were situated when the lien attached;
whichever is earliest. (see: UPPSA, s. 4(2)(b));
(d) a lien that was not registered may be otherwise registered under the Act (see: UPPSA, s. 4(3) & (4)); and
(e) a choice of law is made in favour of the jurisdiction for procedural matters affecting enforcement and for the proper law of the contract for substantive matters affecting enforcement (see: UPPSA, s. 7).
On balance, this would seem to be an acceptable approach to liens.
The conflict of laws rules in the PPSA dealing with security interests in goods should be incorporated by reference to the Uniform Lien Act.
XI. SHOULD A LIENHOLDER BE ABLE TO GIVE THE ITEM LIENED TO CHARITY WHERE THE COST OF REALIZATION EXCEEDS THE VALUE OF THE ITEM?
The Repairers' and Storers' Liens Act allows a lien claimant, who has retained possession of an article for 12 months after the right to sell the article arose, to give the article to a registered charity if the cost of disposal and the amount of lien exceed the fair market value of the article (see: s. 19). For example, where shoes are repaired by a shoemaker and not picked up within the time provided the shoemaker may give the shoes to charity. This is a low cost practical solution and should be included in the new Lien Act.
Section 19 of the Repairers' and Storers' Liens Act should be included in the Uniform Liens Act.
DATED at Regina, Saskatchewan, July 14, 1994 (revised for publication, October 6, 1994).