Older Uniform Acts

Liens Act 2000



ENFORCEMENT

Appointment to exercise sheriff's powers

14. A sheriff may appoint one or more persons to exercise any of the powers of the sheriff that are conferred by this Act, and the exercise of any of those powers by a person so appointed is deemed to be an exercise of the power by the sheriff.
Seizure by sheriff

15. (1) A lien claimant may cause goods that are subject to a lien to be seized where

the amount secured by the lien remains unpaid; and
any period granted for repayment has expired.

Commentary: The lien claimant has the right to instruct the sheriff to seize the goods as long as it remains unpaid and is otherwise entitled to do so. Priority disputes will be resolved in the ordinary way using the dispute resolution mechanisms provided by the PPSA.

(2) Only a sheriff may seize goods to which a lien has attached.
Commentary: Under the western garagekeepers Acts, any asset to be seized had to be seized by the sheriff. As a general rule, a garagekeeper would have little experience in the seizure of goods. There was also no security agreement alerting the person who requested the services to the possibility of seizure. By having the sheriff seize the goods, it was thought disputes arising from these two factors could be prevented. It should be noted that sheriff in this Act is defined to include a person appointed by a sheriff to exercise the powers of the sheriff.

(3) The sheriff shall not seize goods unless the lien claimant or an agent of the lien claimant has executed and delivered a warrant in the form prescribed in the regulations to the sheriff who is to carry out the seizure.
(4) In effecting a seizure, a sheriff may exercise any powers given to a secured party pursuant to section 57 of the Uniform Personal Property Security Act.

(5) A seizure by a sheriff does not affect the interest of a person who, pursuant to this Act or any other law, has priority over the rights of the lien claimant.

Sheriff may require security

16. A sheriff may refuse to make or continue a seizure of goods unless the sheriff is furnished with security sufficient to

cover the sheriff's fees and expenses; and
indemnify the sheriff for anything done in relation to a seizure, including indemnification for claims by the person requesting the services or any third party.

Commentary:
The requirement of security is consistent with sheriffs' practice.
Sheriff may appoint bailee

17. (1) Where a lien is perfected by registration, the sheriff may, at any time after making a seizure, appoint any person in possession of the goods seized as bailee of the sheriff if the person executes an undertaking in the prescribed form

to hold the goods as bailee for the sheriff; and
to deliver up possession of the goods to the sheriff on demand.

(2) Seized goods held by a bailee appointed by the sheriff are deemed to be held under seizure by the sheriff.

Commentary:
There will be occasions when the sheriff believes that the goods are better left in the possession of the person who requested the services or any other person in possession of the goods. As long as the lien has been perfected by registration, this section permits the sheriff to do so.

Surrender of possession to lien claimant


18. (1) A sheriff may surrender possession or the right of possession of the goods seized to the lien claimant or a person designated in writing by the lien claimant.
(2) Before or after a seizure of goods, a sheriff may give a written notice to the lien claimant named in the warrant under which the seizure is made, indicating that the seizure is to be released at a date specified in the notice unless the lien claimant takes possession of the seized goods before that date and pays all sheriff's costs associated with the seizure.

Commentary:
By means of this subsection, the sheriff can compel the lien claimant to receive the goods.

(3) If the person to whom the notice is given does not take possession of the goods mentioned in the notice on or before the date specified, the sheriff may release the seizure.
(4) If the sheriff releases a seizure pursuant to subsection (3), the lien ceases to exist when the seizure is released.

Commentary: This subsection provides a consequence if the lien claimant fails, following the sheriff's request, to take possession of the seized goods.

(5) After a surrender of possession or the right of possession pursuant to subsection (1) or a release of seizure pursuant to subsection (3), the sheriff is not liable for any of the following that occur after the surrender or release

loss of or damage to the goods, or
unlawful interference with the rights of the person requesting the services or any other person who has rights in or to the goods.

Lien claimant may dispose of goods

19. If the person requesting the services fails to pay the debt within 30 days after the day on which it becomes payable, the lien claimant may realize on the goods in accordance with Part V of the Uniform Personal Property Security Act, and the lien claimant has all the rights and obligations of a secured party under Part V of that Act.
Commentary: A lien claimant has the right, by virtue of this section, to sell the goods 30 days after the debt becomes due, in accordance with Part V. Court may resolve dispute

20 (1) The person requesting the services or any other person claiming a proprietary interest in, or a contractual right to possession of, the goods that are subject to a lien may apply to the court to have a dispute resolved where the dispute concerns:

the existence of a lien or the amount secured by a lien; or
the right of the lien claimant to take or retain possession of the goods".

(2) In addition to the powers conferred on a court under the Uniform Personal Property Security Act, on hearing an application pursuant to subsection (1), the court may make any order that it considers appropriate in the circumstances.
Commentary: This section provides an express ability for any person claiming a proprietary interest in goods that are the subject of a lien to access the courts for dispute resolution.

Payment into court

21. (1) Where, in an application under section 20, the amount claimed by the lien claimant is paid into court or security for this amount is posted with the court, the [insert title of proper officer of the court] shall issue to the applicant a certificate setting out the details of the payment or security. (2) On the receipt of the certificate, the lien claimant shall

release the goods; or
not later than three days after receiving the certificate, file a notice of objection with the court stating that additional or alternative security should be posted with the court prior to release of the goods.

(3)Where an objection mentioned in subsection (2) has been filed and the applicant has posted the additional or alternative security demanded by the lien claimant, the lien claimant shall release the goods.
(4)If the court concludes that the lien is not valid or that the additional or alternative security mentioned in subsection (2) is not justified, the court shall order the lien claimant to pay to the applicant as damages any loss suffered or cost incurred by the applicant as a result of having to pay money into court or post security or additional or alternative security.

Where goods released


22. (1) Where goods are released after a certificate is issued by the court, the lien is discharged and is replaced by a charge on the amount paid into court or on the security posted.
(2) The charge is discharged 90 days after the goods are returned by the applicant unless the lien claimant accepts the applicant's offer of settlement or commences an action to recover the amount claimed.

(3) After the expiry of 90 days, the [proper officer of the court] shall return to the applicant the money paid into court or the security posted if the applicant files with the [proper officer of the court] an affidavit confirming that the lien claimant has not accepted the applicant's offer of settlement or commenced an action to recover the amount claimed.

Commentary: Overall sections 20 to 22 provide an effective dispute resolution mechanism to balance the lien claimant's power of retention and seizure where there is a dispute about services, quality, price or similar matters.

Sections 20 to 22 are taken from the Alberta Institute's Report, recommendation #34, which in turn is modeled after Rule 469 of the Alberta Rules of Court, but there are some differences. The proposed section 21 removes the requirement to pay the amount claimed into Court as a pre?condition to bringing an application under section 20. The person who requested the services may want to contest the lien while leaving the goods in the hands of the lien claimant. There is no justification for the lien claimant demanding more than the amount of the debt owing. The only objection that should be made is as to the amount and kind of security.

There is no automatic consequence for abusing the system by providing that no order under subsection 21(4) should be less than a set sum. Such a requirement seemed to tie the discretion of the Court and appeared unwarranted in commercial dealings.

Next Annual Meeting

2018 Conference (Centennial)

Delta Hotel

Québec City, QC

August 12 - 16, 2018