COURT OF APPEAL FOR BRITISH COLUMBIA 2002 · PDF fileof sale of a motor vehicle that was the...

Citation: DaimlerChrysler Financial Services (debis) Canada Inc. v. Mega Pets Ltd.

Date:20020418

2002 BCCA 242 Docket: CA028129Registry: Vancouver

COURT OF APPEAL FOR BRITISH COLUMBIA

BETWEEN:

DAIMLERCHRYSLER FINANCIAL SERVICES (DEBIS) CANADA INC.

APPELLANT(PLAINTIFF)

AND: MEGA PETS LTD., WALTER EDWARDS KENAL,

COMOX VALLEY BAILIFFS LTD. and CANADA CUSTOMS & REVENUE AGENCY

RESPONDENTS(DEFENDANTS)

Before: The Honourable Mr. Justice Donald The Honourable Madam Justice Newbury The Honourable Mr. Justice Mackenzie J.G. Howard Counsel for the Appellant

D. Nygard Counsel for the RespondentCanada Customs & Revenue Agency

Place and Date of Hearing: Vancouver, British ColumbiaMarch 11, 2002

Place and Date of Judgment: Vancouver, British ColumbiaApril 18, 2002

Written Reasons by: The Honourable Madam Justice Newbury Concurred in by: The Honourable Mr. Justice Donald The Honourable Mr. Justice Mackenzie

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DaimlerChrysler Financial Services (debis) Canada Inc. v. Mega Pets Ltd.

Reasons for Judgment of the Honourable Madam Justice Newbury: [1] This appeal is about the application and interpretation

of one of the so-called "super-priority" provisions of the

Income Tax Act, R.S.C. 1985, c. 1.(5th Supp.). The provisions

in question, s. 227(4) and (4.1), deem a trust for Her Majesty

to exist wherever a person deducts or withholds an amount

required under the Act. In very general terms, if the person

fails to pay such an amount to the Crown as required, then

notwithstanding any other enactment (including the Bankruptcy

and Insolvency Act), property of the person and "property held

by any secured creditor . . . that but for a security

interest" would be property of the person, up to the amount

deemed to be held in trust, is deemed not to form part of the

person's property but to be beneficially owned by Her Majesty.

[2] The trial judge in this case ruled that the s. 227 super-

priority applied to entitle Her Majesty to the entire proceeds

of sale of a motor vehicle that was the subject of an earlier

conditional sale agreement between the appellant finance

company (herein called "DaimlerChrysler") as the assignee of a

conditional seller, and two conditional co-purchasers, the

defendants Mega Pets Ltd. ("Mega Pets") and Mr. Kenal, the

father of Mega Pets' principal shareholder. Mega Pets had

failed to remit approximately $46,000 in deductions made under

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the Act, to Her Majesty. DaimlerChrysler appeals the trial

judge's ruling, which is reproduced at (2000) 11 B.L.R. (3d)

121.

Facts

[3] The facts of the case may be briefly stated. Mega Pets

is a British Columbia company whose principal was Mr. Brett

Kenal. The company needed a vehicle for its business and

proposed to buy one through a Chrysler dealer and sought

financing for the purchase. The seller would agree to the

financing, to be carried out through a conditional sales

contract, only if Mr. Kenal, Sr. would become a joint owner of

the vehicle and a joint obligor under the contract. Mr.

Kenal, Sr. agreed, and on January 29, 1998, he and Mega Pets

signed a conditional sale agreement for the purchase of a 1998

Plymouth Voyageur. The terms of the agreement were not

remarkable – for our purposes it is sufficient to note that

title to the vehicle was to remain in the seller until all

payments had been made under the agreement, and that the two

purchasers were "jointly and severally liable" to the seller

for all obligations under the contract. The purchasers were

required to make 48 monthly payments (including interest) of

$563.23, for a total of $27,035.04.

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[4] The contract was immediately assigned by the seller to

DaimlerChrysler, which perfected a purchase money security

interest by the filing of a financing statement as required by

the Personal Property Security Act, R.S.B.C. 1996, c. 359

("PPSA"). For Motor Vehicle Act purposes, the vehicle was

registered in the name of Mega Pets. Nevertheless, Mr. Kenal

deposes that he had keys to the vehicle, and that although

Mega Pets had "primary possession", he used the van "quite a

bit and basically any time on request". He frequently washed

it and filled the tank with gas. The licensing and insurance

on the vehicle were paid for by Mega Pets.

[5] Unfortunately, Mega Pets' business encountered financial

difficulties. Evidently, it failed to remit to the Crown some

$45,955 in deductions made by it from employees' wages for

income tax, CPP and EI. On October 26, 1999, the respondent

Canada Customs & Revenue Agency ("CCRA") had the vehicle

seized under a writ of seizure issued under the Excise Tax

Act. Ultimately, CCRA instructed the bailiff to sell the van.

A total of $15,300 was realized on the sale in November 1999.

From the time of seizure, no monthly payments were made under

the conditional sale agreement. The proceeds of sale of the

vehicle are being held in trust pending the resolution of

priorities as between DaimlerChrysler (which is still owed

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$15,770 under the conditional sale agreement), CCRA and Mr.

Kenal, Sr. He pleaded that CCRA had wrongly converted the

vehicle, and that he 'would seek' indemnity or contribution to

set-off any liability due to DaimlerChrysler by any amount

paid by CCRA to the finance company.

The Issues

[6] The relevant portions of s. 224 and s. 227 of the Income

Tax Act provide as follows:

[224] (1.3) In subsection 224(1.2), "secured creditor" means a person who has a security

interest in the property of another person or who acts for or on behalf of that person with respect to the security interest and includes a trustee appointed under a trust deed relating to a security interest, a receiver or receiver-manager appointed by a secured creditor or by a court on the application of a secured creditor, a sequestrator or any other person performing a similar function;

"security interest" means any interest in property

that secures payment or performance of an obligation and includes an interest created by or arising out of a debenture, mortgage, lien, pledge, charge, deemed or actual trust, assignment or encumbrance of any kind whatever, however or whenever arising, created, deemed to arise or otherwise provided for;

. . .

[227] (4) Every person who deducts or withholds an amount under this Act is deemed, notwithstanding any security interest (as defined in subsection 224(1.3)) in the amount so deducted or withheld, to hold the amount separate and apart from the property

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of the person and from property held by any secured creditor (as defined in subsection 224(1.3)) of that person that but for the security interest would be property of the person, in trust for Her Majesty and for payment to Her Majesty in the manner and at the time provided under this Act. (4.1) Notwithstanding any other provision of this Act, the Bankruptcy and Insolvency Act (except sections 81.1 and 81.2 of that Act), any other enactment of Canada, any enactment of a province or any other law, where at any time an amount deemed by subsection 227(4) to be held by a person in trust for Her Majesty is not paid to Her Majesty in the manner and at the time provided under this Act, property of the person and property held by any secured creditor (as defined in subsection 224(1.3)) of that person that but for a security interest (as defined in subsection 224(1.3)) would be property of the person, equal in value to the amount so deemed to be held in trust is deemed

(a) to be held, from the time the amount was deducted or withheld by the person, separate and apart from the property of the person, in trust for Her Majesty whether or not the property is subject to such a security interest, and (b) to form no part of the estate or property of the person from the time the amount was so deducted or withheld, whether or not the property has in fact been kept separate and apart from the estate or property of the person and whether or not the property is subject to such a security interest

and is property beneficially owned by Her Majesty notwithstanding any security interest in such property and in the proceeds thereof, and the proceeds of such property shall be paid to the Receiver General in priority to all such security interests. (4.2) For the purposes of subsections 227(4) and 227(4.1), a security interest does not include a prescribed security interest. [Emphasis added.]

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[7] In CCRA's argument, certain parts of the Personal

Property Security Act are also relevant. They state:

1 (1) In this Act: . . . "security interest" means

(a) an interest in goods, . . . that secures payment or performance of an obligation, . . . and

(b) the interest of

(i) a transferee arising from the transfer of an account or a transfer of chattel paper,

(ii) a person who delivers goods to another person under a commercial consignment, and

(iii) a lessor under a lease for a term of more than one year,

whether or not the interest secures payment or performance of an obligation;

. . .

2 (1) Subject to section 4, this Act applies

(a) to every transaction that in substance creates a security interest, without regard to its form and without regard to the person who has title to the collateral, and

(b) without limiting paragraph (a), to a

chattel mortgage, a conditional sale, a floating charge, a pledge, a trust indenture, a trust receipt, an assignment, a consignment, a lease, a trust, and a transfer of chattel paper if they secure payment or performance of an obligation. [Emphasis added.]

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It will be noted that prima facie at least, the term "security

interest" has a broader meaning in the PPSA than it does in

the Income Tax Act.

[8] There is no doubt that the purpose of the PPSA was to

simplify the thicket of statutory and common law rules that

previously governed various forms of chattel security,

including chattel mortgages, leases, debentures and

conditional sale agreements. Thus Professors Cuming and Wood

stated in their British Columbia Personal Property Security

Act Handbook (4th ed., 1998):

Section 2 and the definition of "security interest" in s. 1(1) give very few clues as to the nature of a security interest. It is clear that the locus of title to the collateral and the form of the transaction are not to be relied upon in determining whether or not a security interest exists. A security interest is proprietary in nature in that a secured party who has a valid security interest is not treated as an unsecured creditor. However, the Act avoids saying anything that allows the analyst to easily put security interests in one of the traditional categories of proprietary interest. A brief examination of the history of the Act reveals why this is so. The goal of the drafters was to merge separate streams of personal property security law into a single system. In this respect their goal was principally a pragmatic one; conceptualization, at least in traditional terms, was not important. Indeed, it was to be avoided. What was common to the forms of transactions that where the focus of attention of the drafters was that they all had essentially had the same function: to provide through a contract to a person to whom an obligation was owed an interest in personal property

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that would permit that person to look to the property as a source of compensation should the obligation not be performed. The effect of the transaction, not its form or the way in which the interest arose, was to be determinative. There is no need to be concerned about the juridical nature of the security interest so long as the issue being addressed is one that falls within the scope of a statutory regime designed to regulate security interests. Once the conclusion is reached that a security interest is involved, further inquiry as to the essential characteristics of that interest is not required. However, the same approach cannot be used outside the regime. For example, the holder of a security interest might find himself in a legal competition in which the outcome will depend upon the nature of the interest held by each of the competitors. In this context it may not be good enough to conclude that the secured party has an interest in the collateral. It may be necessary to determine the nature and extent of that interest. [at 31-2; emphasis added.]

[9] In the court below and on appeal, counsels' arguments

proceeded largely on the basis that the "property" in issue

was the vehicle itself. CCRA relied heavily on what it called

the "substance, not form" principle enshrined in s. 2(1) of

the PPSA, which it said should also apply to the

interpretation of s. 227 of the Income Tax Act. It took the

position that the vehicle had "in substance" been sold to Mega

Pets, that the conditional sale agreement was a security

agreement that created a "security interest" within the

meaning of s. 224(1.3), and that the "'but for' test" imported

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by s. 227(4.1) was met. In the words of the trial judge

below:

[CCRA] argues that the "but for" test is met because but for the granting of security, Mega Pets would have title to the vehicle. It submits that this interpretation is consistent with a purposive approach to the interpretation of the legislation. The purpose is to protect unremitted payroll deduction through the device of a statutory deemed trust. [at para. 7; emphasis added.]

[10] The argument of DaimlerChrysler was diametrically opposed

to that of the Crown. It contended that the vehicle was the

property of DaimlerChrysler, not of Mega Pets and/or Mr.

Kenal; that common law principles rather than the PPSA should

be looked to determine the nature of its interest; and that

the "but for" test was not met in any event because if the

conditional sale agreement had not been entered into, the

property (i.e., the vehicle) would be property of

DaimlerChrysler rather than of either conditional purchaser.

It also relied on a "purposive approach" to the interpretation

of the Income Tax Act. As the trial judge noted,

DaimlerChrysler argued that it could not be the purpose of the

legislation to enable the Crown:

. . . to require an innocent third party to be responsible for the tax debt of another taxpayer. This is particularly so where, in a vendor financed conditional sales contract, the vendor will lose the

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vehicle of which it remained legal owner and which constituted the sole collateral for the debt. This, it argues, is expropriation without compensation. [para. 10]

[11] In the alternative, DaimlerChrysler submitted that even

if it were found to be a "secured creditor" having a "security

interest" within the meaning of the Income Tax Act, the fact

that Mr. Kenal was a joint owner of the vehicle meant that the

"but for" test was not met. In other words, even if CCRA were

correct as to the application of the test, the vehicle would

be the property of both Mega Pets and Mr. Kenal rather than of

Mega Pets alone. This argument was supported by Mr. Kenal.

The Trial Judgment

[12] The trial judge began her analysis by referring to the

decision of the Supreme Court of Canada in Royal Bank of

Canada v. Sparrow Electric Corp. [1997] 1 S.C.R. 411. It was

decided before the enactment of what is now s. 227. The

primary issue dealt with by the Court was whether the deemed

trust created by what was then s. 227(4) of the Income Tax

Act had priority over Bank Act security and debenture security

registered under the Alberta PPSA. The majority of the Court,

per Iacobucci J., held that the deemed trust did not take

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priority notwithstanding the "licence to sell" given to the

borrower under the debenture.

[13] The trial judge in the case at bar observed that the

Court in Sparrow Electric did not limit the kind of interest

that could be "trumped" by a deemed trust. (para. 18) With

respect to the "purposive" approach to the interpretation of

the Income Tax Act advocated by DaimlerChrysler, she stated

that the purpose of the current provisions was still to

"[protect] unremitted payroll deductions through the device of

a statutory deemed trust", citing para. 36 of Sparrow

Electric. She did not refer directly to the majority's

agreement with the general statement of the minority, per

Gonthier J., that in interpreting the Income Tax Act, courts

must apply the "plain meaning" rule. Gonthier J. stated the

applicable approach as follows:

The principle that the plain meaning of the relevant sections of the Income Tax Act is to prevail unless the transaction is a sham has recently been affirmed by this Court in Canada v. Antosko, [1994] 2 S.C.R. 312. Iacobucci J., writing for the court held at pp. 326-27 that:

While it is true that the courts must view discrete sections of the Income Tax Act in light of the other provisions of the Act and of the purpose of the legislation, and that they must analyze a given transaction in the context of economic and commercial reality, such techniques cannot alter the result where the words of the statute are clear and plain and

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where the legal and practical effect of the transaction is undisputed. . . .

I accept the following comments on the Antosko case in P.W. Hogg and J.E., McGee, Principles of Canadian Income Tax Law (1995), Section 22.3(c) "Strict and purposive interpretation", at pp. 453-54:

It would introduce intolerable uncertainty under the Income Tax Act if clear language and a detailed provision of the Act were to be qualified by unexpressed exceptions derived from a court's view of the object and purpose of the provision . . . . (The Antosko case) is simply a recognition that "object and purpose" can play only a limited role in the interpretation of a statute that is as precise and detailed as the Income Tax Act. When a provision is couched in specific language that admits of no doubt or ambiguity in its application to the facts, then the provision must be applied regardless of its object and purpose. Only when the statutory language admits of some doubt or ambiguity in its application to the facts is it useful to resort to the object and purpose of the provision. [para. 30; emphasis added.]

The majority also expressed the other side of the coin in

Sparrow Electric as follows:

Finally, I wish to emphasize that it is open to Parliament to step in and assign absolute priority to the deemed trust. A clear illustration of how this might be done is afforded by s. 224(1.2) ITA, which vests certain moneys in the Crown "notwithstanding any security interest in those moneys" and provides that they "shall be paid to the Receiver General in priority to any such security interest". All that is needed to effect the desired result is clear language of that kind. In the absence of such clear language, judicial innovation is undesirable, both because the issue is policy charged and because a legislative mandate is apt to

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be clearer than a rule whose precise bounds will become fixed only as a result of expensive and lengthy litigation. [para. 112; emphasis added.]

[14] The trial judge in the case at bar also cited a judgment

of this Court, Royal Bank of Canada v. Tuxedo Transport Ltd.

(2000) 190 D.L.R. (4th) 139, which was decided after the

enactment of s. 227(4.1) and concerned a priority contest

between a receiver under a general security agreement ("GSA")

and the Crown under the deemed trust provision in the Income

Tax Act. This court reversed the trial judge, holding on

appeal that the new language of the Act met the "required

degree of clarity to give priority of the fund to the Crown",

and rejecting the taxpayer's argument that after-acquired

assets were not caught by the language of the statute. Thus

Parliament had fulfilled the prediction of Iacobucci J. in

Sparrow Electric, having used sufficiently clear language to

"overtake a fixed and specific charge" created by a GSA.

[15] (I note parenthetically that the trial judgment in Tuxedo

Transport, reported at (1999) 6 C.B.R. (4th) 285, was followed

by the trial court in a Saskatchewan case, First Vancouver

Finance v. Revenue Canada [2000] 1 W.W.R. 713, aff'd at [2000]

8 W.W.R. 386 (Sask. C.A.). Following the hearing of this

appeal, the Supreme Court of Canada dismissed CCRA's appeal

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from the Saskatchewan Court of Appeal for reasons that are yet

to be released: see [2002] S.C.J. No. 25.)

[16] Last, the trial judge in the case at bar noted the

decision of Tysoe J. in Re United Used Auto & Truck Parts

Ltd., (2000) 83 B.C.L.R. (3d) 191 (B.C.S.C.), which revolved

around the "requirement to pay" provision at s. 224(1.2) of

the Income Tax Act. This provision includes a "but for" test

somewhat similar to that in the present s. 227. The Court

held that CCRA was entitled to enforce the payment to it of

payments due from the debtor to a finance company under a

purchase money security agreement, commenting:

The second submission on behalf of Mr. Mott [the creditor] is that his security agreement provides that the proceeds from the sale of the charged vehicle parts are to be held by United in trust for him and that, therefore, the Requirement to Pay did not attach to the funds. The answer to this submission is that the definition of "security interest" in s. 224(1.3) specifically includes trusts. If it were not for Mr. Mott's security interest, which includes the trust provision as well as the charge against the vehicles and their parts, the funds would be payable to United. Clause (b) of 224(1.2) is engaged, with the result that the funds become the property of Her Majesty and must be paid to the Receiver General in priority to Mr. Mott's security agreement, including the trust as well as the charge. [at para. 16; emphasis added]

[17] Having cited these cases, the learned trial judge said

that nothing in the language of s. 227(4) or 227(4.1) of the

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Income Tax Act required the property in question first to have

been in the hands of the tax debtor and then to have been

transferred to a secured creditor. In her view, the real

question was "whether DaimlerChrysler is a secured creditor,

holding a security interest for security purposes." After

recounting DaimlerChrysler's argument and the effect of the

PPSA on the interpretation of s. 227 of the Income Tax Act,

she concluded she could look to the PPSA to characterize

DaimlerChrysler's interest in the vehicle for Income Tax Act

purposes. She relied in particular on para. 54 of Sparrow

Electric, where the minority observed that the PPSA had

"fundamentally changed the characterization of security

interests" and that as a result, what would previously have

been a floating charge now attached immediately upon execution

of a security agreement. Thus, said the trial judge,

"whatever the common law principles may be, they cannot be

taken to alter the effect of the PPSA on the characterization

of security interests". The PPSA was, she noted, applicable

by its terms to every transaction that in substance creates a

security interest, and specifically, to conditional sale

agreements (see s. 2(1) of the PPSA, quoted supra, at para. 7)

and there was "no meaningful difference" between a GSA and a

conditional sale contract in competition with the Crown's

deemed trust. In her words:

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In both cases title is with the secured creditor. In Sparrow Electric the Bank's security gave it a fixed and specific charge which gives it title, subject to the equitable right of redemption. Therefore DaimlerChrysler holds a security interest as defined in the ITA. The "but for" test found in s. 227 of the ITA is satisfied. But for the granting of security, Mega Pets would have had title to the vehicle. This conclusion is supported by cases where the courts have found that conditional sales contracts are security agreements notwithstanding arguments by conditional sales vendors that title or property remains with the vendor and ought to be insulated from claims of other creditors: Haibeck v. No. 40 Taurus Ventures Ltd. (1991), 59 B.C.L.R. (2d) 229 (B.C.S.C.); Euroclean Canada Inc. v. Forest Glade Investments Ltd. et al. (1985), 49 O.R. (2d) 769 (Ont. C.A.). [paras. 30-2; emphasis added]

(The latter cases cited by the trial judge involved priority

contests between security interests registered under the

PPSA.)

[18] The trial judge turned next to the second argument raised

by DaimlerChrysler – the fact that Mr. Kenal had appeared in

the conditional sale agreement as a joint owner of the

vehicle. She began by noting that the "presumption of

ownership" can be rebutted, citing Jaroszuk v. Quewezance

(1992) 66 B.C.L.R. (2d) 171. Jaroszuk was a decision of this

court dealing with a "hit and run" accident caused by an

unknown driver. It was held that the evidence as to the

identity of the driver – it was not even known whether the

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registered owner was a real person – was too sparse to permit

any inference to be drawn that the car had been driven with

the consent of the person assumed to be the registered owner.

As noted by Taylor J.A. for the majority, the onus resting on

a party who asserts express or implied consent of the owner

could be met only "by actual evidence of facts from which an

inference to that effect can be drawn by application of the

ordinary rules of evidence." (at para. 11)

[19] On the basis of Jaroszuk and two other cases (to which I

will return below), the trial judge considered the various

factors that in her analysis could be looked at to determine

the question of ownership of personal property — the

circumstances of the purchase, who had had primary possession,

who had paid for the insurance, etc. After summarizing the

evidence of Mr. Kenal's involvement in the transaction and his

use of the car, she concluded:

The factors in favour of Mega Pets being the sole owner significantly outweigh those in favour of joint ownership. Occasional use and maintenance do not signify ownership. Mr. Kenal's participation was in the nature of a guarantor. The dealer was not satisfied that his son could make the payments and would not sell the vehicle to his son unless someone else guaranteed the payments. That was the only reason Walter Kenal was involved in the transaction. The presumption of ownership has therefore not been rebutted. Even if the Crown has the overall onus of proving ownership, it has met the onus of

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proving that Mega Pets was the sole owner of the vehicle. The Crown is entitled to the proceeds of the sale of the vehicle. [paras. 40-42; emphasis added.]

ON APPEAL

[20] DaimlerChrysler appeals both conclusions of the trial

judge – i.e., the ruling that s. 227(4.1) of the Income Tax

Act applied to the conditional sale agreement to give Her

Majesty the beneficial owner of the proceeds of sale of the

vehicle; and the ruling that Mega Pets was the "sole owner"

thereof. In my opinion, DaimlerChrysler must succeed on both

grounds.

Joint Ownership

[21] I will deal first with the second and less difficult

ground of appeal – the nature of Mr. Kenal's involvement in

the conditional sale transaction. I start with the

proposition that (subject to any overriding statutory

provision) the characterization of Mr. Kenal's role must be

the same for all purposes — he cannot be a joint owner or have

a property interest for one purpose or vis à vis one person,

but a guarantor for other purposes or as against other

persons. If he was a guarantor for purposes of CCRA's claim,

he was a guarantor vis à vis DaimlerChrysler. Yet on the

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evidence, the original seller and DaimlerChrysler specifically

rejected the original request by Mega Pets to be the sole

purchaser and debtor. The finance company made its approval

of the credit "subject to Kenal purchasing the Vehicle jointly

with Mega Pets and signing the conditional sale contract as

co-buyer." As stated by Mr. Tsang, an account representative

employed by DaimlerChrysler, the finance company would never

have entered into the conditional sale contract without Mr.

Kenal's being both the joint owner of the vehicle and joint

obligor under the contract.

[22] Mr. Tsang did not depose to the reason for this

insistence, but one may infer that the finance company

preferred to have both owners directly, jointly and severally

liable to it, rather than having one obligor whose debt was

guaranteed by another. DaimlerChrysler was no doubt aware of

the basic common law principle that "the principal debt is

primarily the obligation of the principal debtor, while the

liability of the surety is only a secondary liability": see

Anson v. Anson, [1953] 1 Q.B. 636, at 641-2. In contrast,

where co-debtors are involved, the creditor has "an unfettered

choice as to which party to sue for recovery for outstanding

. . . payments": see Husky Oil Operations Ltd. v. Minister of

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National Revenue [1995] 3 S.C.R. 453 at para. 50, per

Gonthier J.

[23] Although the trial judge was purporting to give effect to

the "substance" rather than the "form" of the transaction

between DaimlerChrysler, Mega Pets and Mr. Kenal in finding

that the latter was in reality a guarantor, I am of the

opinion that she erred in her construction of the sale

agreement and her characterization of Mr. Kenal's role. The

terms of the agreement were clear and unambiguous, and

although it might have been more 'usual' for him to have

become a guarantor, that is simply not what happened. He

agreed to become jointly and severally liable for the

obligation to pay for the vehicle and in so doing, also became

a co-owner. There was no suggestion that what he signed was a

sham or was fraudulent in any way. With all due respect, I

believe the trial judge incorrectly permitted the "context" to

overwhelm the plain meaning of the document before her. As

Donald J.A. observed for the Court in Black Swan Gold Mines

Ltd. v. Goldbelt Resources Ltd. (1996) 25 B.C.L.R. (3d) 285,

"The words of the contract must not be overwhelmed by a

contextual analysis, otherwise there is little point in

writing things down." (para. 19)

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[24] The cases cited by the trial judge on the question of

ownership, Jaroszuk v. Quewezance, supra, Gordon F. Simpson v.

Her Majesty the Queen (1979) 79 D.T.C. 5336 (F.C.T.D.), and

Singh v. Brar (1998) 55 B.C.L.R. (3d) 82 (B.C.S.C.), have

little, if any, relevance to the construction and effect of a

written agreement. As earlier noted, Jaroszuk dealt with the

identity of a hit and run driver. Gordon F. Simpson dealt

with the ownership of a plane seized under writ of fieri

facias, where it was unclear who had purchased it — the

father, whose name was Gordon Frederick Simpson, or his son,

whose name was Gordon C. Simpson and who was liable for unpaid

taxes. The plane was registered in the name of the son and

the applicable air regulations provided that the "owner" of an

aircraft included the person in whose name the aircraft was

registered. The son was found to be the owner. A somewhat

similar situation arose in Singh v. Brar, where the registered

owner of a motor vehicle who had been involved in an accident

denied that he was the "owner" for purposes of s. 86 of the

Motor Vehicle Act. The defendant said that he had become the

registered owner only to accommodate a friend who had a bad

driving record, under an arrangement that was to last only

three months. There was, however, no proof of any transfer of

the car to the friend as alleged by the defendant, who made

several inconsistent statements to various persons, including

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I.C.B.C. Ultimately, the defendant was found to be "an owner"

if not "the owner".

[25] Each of these cases involved a denial of ownership,

obviously in defence to an unexpected liability of one kind or

another, by the registered or 'apparent' owner of a chattel.

The cases are not, in my view, authority for disregarding the

rights and obligations of a co-owner or ignoring the clear

terms of a (non-fraudulent) written agreement, merely because

of the arrangements between the co-owners regarding the

payment of expenses and primary use of the property in

question. In this case, these arrangements were not

inconsistent with the meaning and intent of the purchase

documentation.

[26] Proceeding, then, on the basis that the conditional sale

agreement meant what it said and that Mr. Kenal was a joint

owner of the vehicle, and setting aside for the moment the

terms of s. 227 of the Income Tax Act, it is clear that a

creditor of one joint owner may not, without obtaining an

order of partition, seize and sell the jointly-owned property.

This is so even if the creditor purports to divide the sale

proceeds with the other joint owner: see Graham v. Canadian

Western Bank (1999) 251 A.R. 140 (Alta. Q.B., Master); Re

Reeder (1995) 37 C.B.R. (3d) 228 (B.C.S.C.), at paras. 10 and

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11; and Nissan Canada Finance Inc. v. Gletsu (1998) 5 C.B.R.

(4th) 89 (Alta. Q.B., Master). These cases also suggest that

if Mr. Kenal were so minded, he would have an action available

to him against CCRA for damages for the conversion of his

interest in the vehicle. He might also have an action for

money had and received (see Waters, The Law of Trusts in

Canada (2d ed., 1984) at 1035-6), and be in a position to

trace the proceeds of sale to their present segregated

account: see Waters, ibid. However, Mr. Kenal was not

represented before us and it would not be appropriate for us

to try to answer these questions.

[27] Counsel for CCRA did not seek to argue that Graham and

Reeder were incorrect, but contended that since Mr. Kenal and

Mega Pets had made unequal contributions to the purchase price

for the vehicle, they were tenants in common rather than joint

tenants thereof. In support, she cited a chapter by Hill and

Bowers–Smith, "Joint Ownership of Chattels" in Palmer and

McKendrick, supra. At 251, the authors note that equal title

to chattels can be vested in joint owners as joint tenants or

as tenants in common, in the same way as estates in land could

be held at common law. The authors then continue:

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A joint tenancy arises when a chattel is transferred to joint owners with no words to suggest that they have separate shares in the chattel. Alternatively, if two or more people purchase a chattel together they will hold the chattel as joint tenants unless they have expressed to each other the intention that they should have separate shares in the chattel. A tenancy in common can arise in a number of ways:

(i) where a chattel is transferred to joint owners with words which indicate that they are to have separate interests in the chattel, e.g. "equally" or "to A and B in equal shares"; or

(ii) where that is the expressed intention of

the joint owners; or (iii) where joint owners have contributed to

the purchase price of a chattel in unequal proportions; or

(iv) on severance of a joint tenancy, e.g. when

one joint owner assigns his interest in a chattel to a third party or simply agrees to do so. [Emphasis added.]

[28] Ms. Nygard relies on para. (iii) above, but I do not read

the excerpt to mean that a tenancy in common must arise

whenever co-purchasers make unequal contributions to the

purchase price of property. Rather, where co-owners conduct

themselves as though they have particular 'shares' in the

property, the joint tenancy may be regarded as severed. Until

then, if they purchase the chattel together, the 'four

unities' are met and the more general proposition underlined

above remains a correct statement of the law. (See also

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Crossley Vaines' Personal Property, 5th ed. (1973) at 56; and

Halsbury's Laws of England, 4th ed., vol. 35 at 753-4.) I

also note that since Mega Pets is a British Columbia company,

it is able to acquire and hold property in joint tenancy by

virtue of s. 32 of the Company Act, R.S.B.C. 1996, c. 62.

[29] Assuming Mega Pets and Mr. Kenal were joint tenants of

the vehicle, the next question would be whether the joint

tenancy had somehow been severed. Ms. Nygard for CCRA

contended that it was severed "by operation of the deemed

trust", citing Hill and Bowers-Smith, supra, at 256. Their

chapter in Interests in Goods, however, does not deal with

this question or with the effect of the seizure of a jointly-

owned chattel by a creditor of one of the co-owners. The text

does indicate that when one of two or more co-owners becomes

bankrupt, the joint tenancy is not thereby severed (see also

Nissan Canada Finance v. Gletsu, supra, at para. 8) and that

the trustee in bankruptcy simply steps into the shoes of the

bankrupt. Thus the trustee is not entitled to proceed with

the sale of the chattel without the consent of the co-

owner(s).

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[30] In the case at bar, of course, the chattel has been sold

by CCRA, which evidently purported to give good title to the

purchaser. The text cited by Ms. Nygard suggests that the

title obtained by the new purchaser may in fact be dubious; in

the analysis again of Hill and Bowers-Smith:

If . . . one co-owner purports to sell an absolute interest in the chattel without the authority or consent of his co-owner, then he transfers no greater interest in that to which he is entitled. The rule nemo dat quod non habet applies with the result that, unless one of the exceptions to that rule is applicable, the purchaser merely acquires the seller's joint interest and himself becomes the tenant in common with the original owner. [at 256]

However, it seems more likely that a bona fide purchaser could

defeat the owner's proprietary claim. That would certainly be

the case in Equity: see Waters, supra, at 1043. But again,

since Mr. Kenal was not represented on this appeal and we are

concerned here only with the question of priority as between

CCRA and DaimlerChrysler, we need not reach any conclusions on

this point. Disregarding for the moment DaimlerChrysler's

retention of title, it is sufficient to say that the vehicle

itself was not the "property of" Mega Pets within the meaning

of s. 227(4.1) at the time CCRA purported to seize and sell

it. I would allow the appeal on this ground.

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The Effect of Section 227

[31] In my respectful opinion, the trial judge also erred on

two related points that led her to conclude incorrectly that

for purposes of the Income Tax Act provisions, the conditional

sale agreement was indistinguishable from a debenture,

mortgage, pledge or other charge. First, as a matter of

statutory interpretation, there is no basis for construing the

term "security interest" as defined in s. 224(1.3) of the

Income Tax Act, with reference to the PPSA of British

Columbia. The definitions in s. 224 purport to be free-

standing and do not incorporate or refer to any other statute.

Although the term "security interest" has now entered common

legal parlance and is often understood to refer to interests

covered by the PPSA of whatever province one is considering,

the definition contained in the Income Tax Act is the only one

properly considered in determining the meaning of the term for

purposes of s. 227. In this regard, I note the proposition

adopted by Gonthier J. in Husky Oil Operations Ltd. v.

Minister of National Revenue, supra, that terms such as

"secured creditor", when used in a federal statute (in that

case the Bankruptcy Act) must be interpreted "as defined by

the federal Parliament, not by the provincial legislatures."

(para. 32) Similarly, the definition of "security interest"

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for purposes of the Income Tax Act cannot be determined by

provincial legislation such as the PPSA. (See also Schwab,

infra, at para. 38, per Dovell J.) I do not read Sparrow

Electric as casting any doubt on this proposition, and indeed

I note Gonthier J.'s observation at para. 54 that the PPSA did

not govern the priority contest between the statutory trust

created by the Income Tax Act and a security interest under

the provincial PPSA. Thus whereas the trial judge in the case

at bar stated that "whatever the common law principles may be,

they cannot be taken to alter the effect of the PPSA on the

characterization of security interests", the correct

proposition was that whatever the PPSA may provide, it cannot

be taken to alter the effect of the Income Tax Act on common

law principles.

[32] For convenience, I set out the definition of "security

interest" as it appears in s. 224 of the Income Tax Act:

"security interest" means any interest in property that secures payment or performance of an obligation and includes an interest created by or arising out of a debenture, mortgage, lien, pledge, charge, deemed or actual trust, assignment or encumbrance of any kind whatever, however or whenever arising, created, deemed to arise or otherwise provided for; [Emphasis added.]

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It will be noted that in contrast to the PPSA (see above at

para. 7), conditional sale agreements are not included in the

list of security interests. This omission seems strange if

(as CCRA argued) Parliament intended to include such

agreements, since they are a widely-known form of chattel

security. Although it is arguable in a colloquial sense that

a conditional sale agreement creates an interest in property

that secures the performance of an obligation, the fact that

all the instruments specifically listed involve the borrower's

transferring to, or 'charging' the property in favour of, the

creditor, must at least give one pause. I would not have

thought that, apart from the PPSA, one would speak of a

conditional vendor or lessor as having an interest that

"secures payment". Rather, title is retained to secure

payment. It is the conditional purchaser who acquires a

property interest in the chattel over time, reflecting his or

her increasing 'equity'. That interest does not secure

payment of an obligation.

[33] The absence of conditional sale agreements from the list

in the statutory definition of "security interest" was noted

in a recent decision of the Saskatchewan Court of Queen's

Bench, Canada (Deputy Attorney General) v. Schwab Construction

Ltd. (2001) 25 C.B.R. (4th) 289, aff'd at [2002] S.J. No. 16

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(Sask. C.A.). Schwab was a priority contest between Her

Majesty (relying on the deemed trust provisions of ss. 227(4)

and (4.1) of the Income Tax Act) and in one instance, a lessor

of chattels, and in another instance, a conditional seller.

As in the case at bar, CCRA submitted in Schwab that the

leases and conditional sale agreement in question came within

the definition of "security interest". But the trial judge,

Dovell J., did not accept that argument. She reasoned as

follows:

Although the definition of "security interest" as contained in ss. 224(1.3) of the Income Tax Act contains a specific list of commercial arrangements including debenture, mortgage, lien, pledge, charge, deemed or actual trust, assignment IT DOES NOT INCLUDE THE WORD, LEASE. Obviously Parliament knew what it was doing when it drafted the new provisions of the Income Tax Act as a consequence of the Royal Bank of Canada v. Sparrow Electric Corp. (1997), 143 D.L.R. (4th) 385 (S.C.C.), in which Gonthier J. stated at p. 406:

. . . this provision does not permit Her Majesty to attach Her beneficial interest to property which, at the time of liquidation, assignment, receivership or bankruptcy, in law belongs to a party other than the tax debtor. Subsections 227(4) and (5) are manifestly directed towards the property of the tax debtor, and it would be contrary to well-established authority to stretch the interpretation of s. 227(5) to permit the expropriation of the property of third parties who are not specifically mentioned in the statute. [para. 39]

I agree it was necessary for the provisions of s. 227 of the Income Tax Act then and now to be

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clear and specific as it is for all sections of the Income Tax Act. It is absolutely mandatory. The deemed trust provisions of the Income Tax Act are very powerful and as such there should be sufficient clarity to forewarn the citizens of this country so that they can govern their every day affairs accordingly including their routine commercial activity. I do not accept the argument of the applicant that leases are to be included in the definition of "security interest" in s. 224(1.3) of the Income Tax Act. All leases including true leases and security leases in which ownership remains with the creditor are not a "security interest" within the meaning of s. 224(1.3) of the Act. To decide otherwise would allow the applicant to claim as part of its deemed trust property not owned by the bankrupt but owned by an innocent third party who had just agreed to allow the bankrupt to use its property for a certain price pursuant to the terms of a lease agreement. The owner of the property would end up paying the income tax obligation of the bankrupt. As adopted by Justice Gonthier in Royal Bank of Canada v. Sparrow Electric Corp., supra, at p. 407 [para. 39]:

"[i]t is a long-established principle of law that, in the absence of clear language to the contrary, a tax on one person cannot be collected out of property belonging to another". [at 46, per Twaddle J.A. in Pembina on the Red Development Corp. Ltd. v. Triman Industries Ltd. (1991) 85 D.L.R. (4th) 29 (Man. C.A.)]

It makes no difference for the purpose of my decision in this application as to whether or not the lease agreement in question provided for an option to purchase at the end of the term of the lease for either the fair market value of the item being leased or not or that the lease in question was a true lease or a security lease — the fact remains the interest of the bankrupt remains that of a lessee possessing the equipment as opposed to the owner of the equipment. [paras. 33-6; emphasis added.]

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[34] Turning then specifically to the interest of the

Saskatchewan Credit Union Ltd., which was the vendor under the

only conditional sale agreement before the Court, Dovell J.

declined to accept the analysis of the trial judge in the

instant case. She stated:

I disagree that adoption of provincial Personal Property Security Act, 1993 legislation is appropriate in determining whether or not a conditional sales contract is a "security interest" within the meaning of the Income Tax Act. In addition, my disagreement with the rationale as outlined in the DaimlerChrysler Financial Services case is based upon the Saskatoon Credit Union Limited always retaining ownership in the equipment it sold to Schwab Construction Ltd. pursuant to the conditional sales contract. I therefore find that the Saskatoon Credit Union Limited does not have a "security interest" within the meaning of s. 224 of the Income Tax Act and thus the equipment included in the conditional sales contract is not part of the deemed trust of the applicant pursuant to s. 227 of the Act. [paras. 49-51; emphasis added.]

Although counsel for CCRA contended before us that Dovell J.

had not clearly turned her mind to the characterization of the

conditional sale agreement, as opposed to the chattel leases,

it is clear this is not so. Each secured creditor and each

agreement was considered separately in the Court's Reasons.

[35] On appeal, the trial judgment in Schwab was affirmed,

Lane J.A. reasoning as follows for the Court:

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The Crown argued the definition of "security interest" is broad enough to include "leases" of the nature of those in question. The Crown contended it was entitled to a priority over all of the property and did not argue it was entitled to only a priority over any equity or property interest, if any, the bankrupt may have had in any of the equipment. Further, the Crown argued the agreements in issue are agreements "to secure the payment or performance of an obligation." I am of the view the chambers judge was correct. The equipment covered by the lease was not the property of the bankrupt and the leases were not "a security interest" within the meeting of s. 224(1.3) of the Act. As the chambers judge stated, "[t]o decide otherwise would allow the applicant (the Crown) to claim as part of its deemed trust property not owned by the bankrupt but owned by an innocent third party who had just agreed to allow the bankrupt to use its property for a certain price pursuant to the terms of a lease agreement". She correctly found that finding the Crown had a priority interest would offend the principle as set out in Royal Bank of Canada v. Sparrow Electric Corporation by Gonthier J.:

[T]his provision does not permit Her Majesty to attach Her beneficial interest to property which, at the time of liquidation, assignment, receivership or bankruptcy, in law belongs to a party other than the tax debtor. [Subsections] 227(4) and (5) are manifestly directed towards the property of the tax debtor, and it would be contrary to well-established authority to stretch the interpretation of section 227(5) to permit the expropriation of the property of third parties who are not specifically mentioned in the statute. [para. 39]

I might add he went on to refer to the presumption against expropriation of property where he quoted Twaddle J.A. in Re Pembina on the Red Development Corp. Ltd. v. Triman Industries Ltd.: "It is a long-established principle of law that, in the absence of clear language contrary, a tax on one

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person cannot be collected out of property belonging to another." [paras. 8-9; emphasis added.]

[36] It is true that on the appeal, the Saskatchewan Credit

Union and another credit union "did not defend their

interests" and were not represented. To that extent, the

appellate judgment is not technically authority for the

proposition that a conditional sale agreement is not a

"security interest" for purposes of s. 224. However, the

leases dealt with by the Court of Appeal contained options to

purchase once the lessor was fully paid. In the meantime,

Lane J.A. noted, title to the equipment was reserved by the

finance company. It is difficult to see a distinction in

principle (as opposed to form) between that kind of

arrangement and the one between DaimlerChrysler and the two

co-purchasers in the case at bar. Before the advent of PPSA,

it may be recalled that equipment leases with options to

purchase were treated as conditional sale agreements by the

Sale of Goods on Condition Act, R.S.B.C. 1979, c. 373. Now

they are, like conditional sale agreements, specifically

included in the definition of "security interest" in

provincial PPSA regimes: see above at para. 7.

[37] Schwab was also followed, and the trial judgment under

appeal here distinguished, by the Ontario Superior Court of

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Justice in The Bank of Nova Scotia v. Turyders Trucking Ltd.,

(dated August 30, 2001, No. 00-CV-15437), where it was held

that the "super-priority" provisions of the Income Tax Act did

not prevail over the interest of a lessor of chattels. In her

endorsement, Métivier J. reasoned:

The question in the case at bar then resolves itself to whether the P.P.S.A. definition, (clearly met by the respondent who was registered in its interest) brings the respondent into the sphere of application of the Income Tax Act. In other words, can those sections of the two pieces of legislation be read as having the same effect, notwithstanding the far more expansive definition under the P.P.S.A. It is noteworthy that the Income Tax Act definition does not include the word "lease". It is trite law that the Income Tax Act must be clear and specific. As seen here, the deemed trust provisions which can arise, are very powerful. Taxpayers are entitled to have clear legislative directions so as to govern their affairs accordingly. It appears to defy the canons of statutory interpretation that despite the specific list of commercial arrangements provided for in the Income Tax Act, the absence of "lease" should be overlooked and simply read in and that the much more expansive definition of the P.P.S.A. should be inferred. I am not prepared to do either. . . . I accept and adopt as my own reasoning of Dovell, J. of the Saskatchewan Court of Queen's Bench in Canada (Deputy Attorney General) v. Schwab Construction Ltd. . . . The provincial Act has chosen an expanded definition of security interest, but this cannot, does not, and should not impact on the interpretation of the Income Tax Act. If the

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federal legislators had wished to adopt the provincial legislation or used identical language, it was open for them to do so. They did not. I find as a fact that Antrim Truck's interest is not included within the deemed trust provisions so as to make them liable for a $44,000 "contribution" to the CCRA as requested by the Interim Receiver. [paras. 17-20; 23-25; emphasis added.]

[38] Both Schwab and Turyders, then, may be taken to support

the view that the vehicle in issue here was not property

subject to a "security interest" within the meaning of

s. 227(4.1) because in the absence of clear language the

courts will not construe a statute so as to 'expropriate' a

third party's property. To this I would add that for the

reasons set out above at para. 32, neither a conditional sale

agreement nor a lease with option to purchase creates a

"security interest" in the creditor, as seems to be intended

by the Income Tax Act (and in particular by the 'but for'

test).

The "But For" Test

[39] This in turn leads to a closely related point of

statutory construction — the question of whether it can be

said that "but for" the "interest", the vehicle would have

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been property of Mega Pets. For convenience I reproduce s.

227(4.1) of the Income Tax Act again below:

(4.1) Notwithstanding any other provision of this Act, the Bankruptcy and Insolvency Act (except sections 81.1 and 81.2 of that Act), any other enactment of Canada, any enactment of a province or any other law, where at any time an amount deemed by subsection 227(4) to be held by a person in trust for Her Majesty is not paid to Her Majesty in the manner and at the time provided under this Act, property of the person and property held by any secured creditor (as defined in subsection 224(1.3)) of that person that but for a security interest (as defined in subsection 224(1.3)) would be property of the person, equal in value to the amount so deemed to be held in trust is deemed

(a) to be held, from the time the amount was deducted or withheld by the person, separate and apart from the property of the person, in trust for Her Majesty whether or not the property is subject to such a security interest, and (b) to form no part of the estate or property of the person from the time the amount was so deducted or withheld, whether or not the property has in fact been kept separate and apart from the estate or property of the person and whether or not the property is subject to such a security interest

and is property beneficially owned by Her Majesty notwithstanding any security interest in such property and in the proceeds thereof, and the proceeds of such property shall be paid to the Receiver General in priority to all such security interests. [Emphasis added.]

[40] Assuming for the moment that the "property" being

referred to is the vehicle itself, can it be said that "but

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for" DaimlerChrysler's security interest, the vehicle "would

be property of" Mega Pets or of the co-purchasers? In my view

it cannot. Unlike the situation where a debenture, mortgage

or other charge is granted to a creditor, the vehicle here

never was and never did become "property of" Mega Pets or its

co-owner. "But for" the security interest, the vehicle would

be the property of the seller (or in this case its assignee

DaimlerChrysler), not of the co-purchasers, who were required

to pay all amounts owing under the agreement before title to

the vehicle would pass.

[41] Of course, the distinction between conditional sale

agreements and other forms of chattel security was effectively

eliminated for purposes of the PPSA — as Cuming and Wood noted

in their handbook, supra (see para. 8 above), one of the goals

of the legislation was to ensure that the "juridical nature of

the security interest" was secondary to the registration

regime. This is the lesson of the cases cited by the trial

judge at para. 33 of her Reasons: Haibeck v. No. 40 Taurus

Ventures Ltd., supra, Euroclean Canada Inc. v. Forest Glade

Investments Ltd., supra, and Re Ottaway (1980) 110 D.L.R. (3d)

231 (B.C.C.A.). But as Cuming and Wood also note, the same

approach cannot be used outside the PPSA regime. The

particular terms of the agreement in question, such as that

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reserving title in the conditional seller, remain valid and

must be considered in applying the wording of the Income Tax

Act.

[42] In oral argument, counsel were asked to consider whether

the "property" referred to in s. 224(4.1) might be Mega Pets'

proprietary interest in the vehicle arising out of the

conditional sale agreement, rather than the vehicle itself or

title thereto. (See C.C. Motor Sales Ltd. v. Chan [1926]

S.C.R. 485 at 491; Commercial Credit Corporation of Canada

Ltd. v. Niagara Finance Co. Ltd. [1940] S.C.R. 420 at 422-3;

Hendrickson v. Mid-City Motors Ltd. (1951) 1 W.W.R. (N.S.) 609

(Alta. S.C.), at 618 and the cases cited by Master Funduk at

para. 21 of Paccar Financial Services Ltd. v. Win-Storm

Trucking Inc. [2001] A.J. No. 941 (Q.L.) Since that property

interest was obviously not "held by any secured creditor" it

would have to come within the phrase "property of the person"

to be caught by the Act. Tracking through the language, Mega

Pets' proprietary interest or "property" in the vehicle would

be deemed to be beneficially owned by Her Majesty and the

proceeds would be required to be paid to the Receiver General

"in priority to all . . . security interests." The residual

interest of DaimlerChrysler on the other hand could not, for

the reasons discussed above, be regarded as property that

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would "but for" a "security interest" be property of Mega Pets

and would therefore not be caught by s. 227.

[43] If this is correct, then "but for" the fact that the

purchaser's interest was held by two joint tenants, the deemed

trust and the prior interest created by s. 227(4.1) would have

attached to the purchaser's property interest in and to the

vehicle (but not to the vehicle itself) and presumably, the

proceeds of sale attributable thereto. The balance of the

proceeds would presumably be payable to DaimlerChrysler. But

given my conclusions regarding the joint tenancy between Mega

Pets and Mr. Kenal, the fact he was not represented in this

court, and the fact that counsel did not address except in a

cursory way the matter of the distribution of the proceeds of

sale of the vehicle as between CCRA, Mr. Kenal and

DaimlerChrysler, the disposition of the fund must await

another day.

[44] I would allow the appeal on both bases stated, set aside

the order of the trial judge and order that the question of

distribution of the sale proceeds be remitted to the court

below to be determined in accordance with these Reasons and

after all parties, including Mr. Kenal, have had an

opportunity to make full argument. Until then, I would order

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that the proceeds continue to be held in trust pending further

order or the agreement of the parties.

“The Honourable Madam Justice Newbury”

I AGREE: “The Honourable Mr. Justice Donald” I AGREE: “The Honourable Mr. Justice Mackenzie”

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