J. Q.B.G. A.D. 1997 No. 1294 J.C.S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: ERNIE RICHTER RESPONDENT (PLAINTIFF) and DEBBIE ZIMMERMANN APPLICANT (DEFENDANT) James T. Sproule for the applicant Connie den Hollander for the respondent FIAT LAING J. November 12, 1997 The applicant applies for an order for the followingrelief:(a) pursuant to s. 63 of The PersonalProperty Security Act (Saskatchewan) for adeclaration that the agreement between theparties is a security agreement within thedefinition of The Personal PropertySecurity Act; and(b) pursuant to s. 18 of The Limitation ofCivil Rights Act that the Respondentvendor is limited to a lien upon thearticle sold;(c) an Order that funds currently held inCourt in trust for the action be returnedto Debbie Zimmerman (sic). On the following grounds: (a) that the agreement between the parties on the facts constitutes security agreement and is not true lease; (b) that because the agreement is security agreement and not true lease, pursuant to s. 18 of The Limitation of Civil Rights Act, the Respondent vendor is limited to lien upon the articles sold only, notwithstanding any contrary agreement between the parties. The parties entered into an agreement in early 1997 in which the respondent as lessor agreed to lease tractor- trailer unit to the applicant for the payments specified therein. The applicant made payments for several months and acknowledges in her affidavit that by the month of June, 1997, she was in default with respect to such payments. The respondent seized the vehicle on July 3, 1997. The same date, the respondent issued statement of claim in which he claimed the sum of $5,330.81 from the applicant being ". the combined amount due and owing by the Defendant to the Plaintiff for arrears of lease payments with the value of goods required to be purchased by the Plaintiff pursuant to the said agreement being tires and starter which the Defendant did promise to pay to the Plaintiff upon repossession .". The respondent also issued pre- judgment garnishee summons for the amount claimed which was paid into court by the garnishee on July 22, 1997. The applicant has not yet filed statement of defence to this claim. As noted from the relief requested in the motion, the applicant is not taking issue with the repossession effected by the respondent, but rather is seeking ruling that the respondent, having repossessed the collateral, is not now entitled to claim any additional payments owing from the applicant. At the hearing, both parties argued the merits of the application. Counsel for the respondent took the position the lease was "true" lease as opposed to "security" lease, denied the applicability of s. 18(1) of The Limitation of Civil Rights Act, R.S.S. 1978, c. L-16, and stated that in any event her client wished to invoke the provisions of s. 18(6) of the Act and argue it would be inequitable that s. 18(1) should apply. The respondent did not take issue with the procedural aspects of this application. Having had the benefit of reflection and of reviewing the Act since this matter was argued, conclude this application is misconceived. This court lacksjurisdiction to grant the relief requested under Part V of ThePersonal Property Security Act, 1993, S.S. 1993, c. P-6.2 andthe application is simply an attempt to end run the actionwhich has been commenced by the respondent. As noted by Vancise J.A. in Andrews and Trotchie v. Mack Financial (Canada) Ltd. et al. (1988), 1987 CanLII 4731 (SK CA), 61 Sask. R. 311, at pp. 315-316: It will be noted that the court is given broad powers under s. 63, including the right to make declarations of rights, grant injunctive relief, or make any order required to ensure compliance with Part and s. 17 of the Act. (original emphasis) And at p. 318: On the issue of the scope of s. 63, the appellant submits that the purpose of the section is to ensure compliance with Part V, and to provide summary procedure for ensuring that the rights of the respective parties are protected, and, to that end, the rights of the respective parties are circumscribed. agree with that submission. In this matter, the applicant is not seeking toremedy a wrong with respect to the seizure or preservation ofthe collateral, but is in reality seeking a remedy pursuant toThe Limitation of Civil Rights Act, supra. The applicant is of the view, that if she can establish that the lease in question created security interest within the meaning of s. of The Personal Property Security Act, 1993 this will advance her argument with respect to the applicability of s. 18(1) of The Limitation of Civil Rights Act. This may or may not be the case, but it does not change the fact that the argument will have to be based on the wording of s. 18(1) of The Limitation of Civil Rights Act. Section 63(2) of The Personal Property Security Act, 1993 states as follows: 63(2) On application by debtor, creditor of debtor, secured party, sheriff or person with an interest in the collateral, the court may make one or more of the following orders: (a) an order, including binding declaration of right and an order for injunctive relief, that is necessary to ensure compliance with this Part or section 17, 36, 37 or 38; (b) an order giving directions to any person regarding the exercise of rights or the discharge of obligations pursuant to this Part or section 17, 36, 37 or 38; (c) an order relieving person from compliance with the requirements of this Part or section 17, 36, 37 or 38; (d) an order staying enforcement of rights provided in this Part or section 17, 36, 37 or 38 or (e) any order that is necessary to ensure protection of the interest of any person in the collateral. (subsection emphasis added) The relief sought by the applicant does not fallwithin any of the wording of the foregoing section, and thereis therefore no jurisdiction in this court to grant the reliefrequested. The proper forum to have the issues raised in thismatter determined, is the action commenced by the respondent. The application is dismissed. Costs of this application will be costs in the cause.
FIAT. The applicant sought an order pursuant to s63 of the Personal Property Security Act (PPSA) declaring that the agreement between the parties was a security agreement within the definition of the Personal Property Security Act rather than a lease and that the respondent was limited to a lien pursuant to s18 of the Limitation of Civil Rights Act; and an order that funds paid into court pursuant to a pre-judgment garnishee summons be returned to the applicant. The respondent seized the vehicle and issued a statement of claim for $5,330.81 as arrears of lease payments. The applicant had made payments for several months and acknowledged that she was in default on the payments for the tractor-trailer unit but contended the agreement was not a lease and that the respondent, having repossessed the collateral, was not now entitled to claim any additional payments. HELD: The application was dismissed. Costs in the cause. 1)The relief sought did not fall within any of the wording of s63(2) of the Personal Property Security Act and therefore there was no jurisdiction to grant the relief requested. The application was simply an attempt to end run the action commenced by the respondent. 2)The applicant was not seeking to remedy a wrong with respect to the seizure or preservation of the collateral but was seeking a remedy pursuant to the Limitations of Civil Rights Act. The proper forum was to have the issues determined in the action commenced by the respondent.