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Difference between revisions of "Tort Actions"
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==== Legal right to take chattels==== | ==== Legal right to take chattels==== | ||
A creditor’s right to repossess usually arises from a security agreement. That right must be exercised within the limits of the [http://canlii.ca/t/8495 ''Personal Property Security Act''] (see the section on Security Agreements), as well as other statutes such as the [http://canlii.ca/t/84mr ''Business Practices and Consumer Protection Act'']. | A creditor’s right to repossess usually arises from a security agreement. That right must be exercised within the limits of the [http://canlii.ca/t/8495 ''Personal Property Security Act''] (see the section on [[Security Agreements]]), as well as other statutes such as the [http://canlii.ca/t/84mr ''Business Practices and Consumer Protection Act'']. | ||
The most basic mistake that a creditor can make is to have the '''wrong goods seized'''. For example, if furniture that is owned by a friend or relative of the debtor is taken as part of a repossession by a bailiff, the rightful owner of the goods will have a right to claim the return of the goods, or damages, or possibly both, from the creditor. Note, however, that the courts are often wary of other people coming forward to claim ownership of goods that are in the possession of a debtor. It may be up to the person claiming ownership to prove to the satisfaction of the court they are indeed the rightful owner of the goods. | The most basic mistake that a creditor can make is to have the '''wrong goods seized'''. For example, if furniture that is owned by a friend or relative of the debtor is taken as part of a repossession by a bailiff, the rightful owner of the goods will have a right to claim the return of the goods, or damages, or possibly both, from the creditor. Note, however, that the courts are often wary of other people coming forward to claim ownership of goods that are in the possession of a debtor. It may be up to the person claiming ownership to prove to the satisfaction of the court they are indeed the rightful owner of the goods. | ||
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The '''statute law''' sets a number of limits on repossession. If those limits are broken, the debtor may have a cause of action for trespass to chattels. For example, the [http://canlii.ca/t/8495 ''Personal Property Security Act''], section 58, says that creditors cannot repossess secured consumer goods where a debtor has paid at least two-thirds of the total amount secured (that is, two-thirds of what is owed on those goods), unless they get a court order first. A repossession without such a court order would probably be considered a trespass to the chattel, for which the debtor could recover damages. | The '''statute law''' sets a number of limits on repossession. If those limits are broken, the debtor may have a cause of action for trespass to chattels. For example, the [http://canlii.ca/t/8495 ''Personal Property Security Act''], section 58, says that creditors cannot repossess secured consumer goods where a debtor has paid at least two-thirds of the total amount secured (that is, two-thirds of what is owed on those goods), unless they get a court order first. A repossession without such a court order would probably be considered a trespass to the chattel, for which the debtor could recover damages. | ||
Possible wrongful repossessions where statutory requirements had not been complied with would also exist under the [http://canlii.ca/t/84bv ''Repairers Lien Act''] (see the section on Repairers’ Liens). | Possible wrongful repossessions where statutory requirements had not been complied with would also exist under the [http://canlii.ca/t/84bv ''Repairers Lien Act''] (see the section on [[Repairers’ Liens]]). | ||
If the person carrying out a repossession '''lacks the proper authority''', it can give rise to a cause of action for trespass. In the case of [http://canlii.ca/t/gc398 ''Re Bad Boy Mobile Homes Ltd.''], the court held that a repossession made by a person who was not licensed as a bailiff was unlawful (the repossession had been carried out by an employee of the creditor). An extension of this principle may be that a debtor would be entitled to damages for wrongful repossession, and possibly to the return of any goods taken, where it could be shown the repossession was carried out by an unlicensed person. This situation is illustrated by the case of ''Millar v. Sumo Engine Co. (Canada) (1989) Ltd.'' (see below). | If the person carrying out a repossession '''lacks the proper authority''', it can give rise to a cause of action for trespass. In the case of [http://canlii.ca/t/gc398 ''Re Bad Boy Mobile Homes Ltd.''], the court held that a repossession made by a person who was not licensed as a bailiff was unlawful (the repossession had been carried out by an employee of the creditor). An extension of this principle may be that a debtor would be entitled to damages for wrongful repossession, and possibly to the return of any goods taken, where it could be shown the repossession was carried out by an unlicensed person. This situation is illustrated by the case of ''Millar v. Sumo Engine Co. (Canada) (1989) Ltd.'' (see below). | ||
