McKenna v. Marshall
The Farm Debt Mediation Act's notice provision in s.21 must be served before enforcement proceedings may be taken and this entitlement is not conditioned on showing insolvency; consequently, proceedings following failure to serve the s.21 notice are null and void under s.22; the contempt provisions were set aside...
Source-derived case information.
- Citation
- C40991
- Parties
- Plaintiff/respondent in Appeal: George McKenna; Defendant/appellant in Appeal: Anthony Harold Marshall; Defendant/appellant in Appeal: Cathy Marshall
- Court
- Court of Appeal for Ontario
- Jurisdiction
- Canada
- Judgment Date
- 13 May 2004
- Procedural Posture
- Civil Appeal / Appeal From Superior Court Judgment; Decision on Appeal
- Outcome
- Appeal allowed; order of Harris J. set aside; respondent's motion for summary judgment dismissed; contempt provisions set aside; specified costs directions issued.
- Legal Topics
- Notice Under S.21, Nullity of Proceedings Under S.22, Summary Judgment, Purging Contempt, Costs Award
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
George McKenna
Plaintiff/respondent in Appeal
Anthony Harold Marshall
Defendant/appellant in Appeal
Cathy Marshall
Defendant/appellant in Appeal
Procedural Posture
Civil Appeal / Appeal From Superior Court Judgment; Decision on Appeal
Legal Issues
- 1 Whether s.21 of the Farm Debt Mediation Act requires service of notice before enforcement proceedings may proceed
- 2 Whether a party must demonstrate insolvency to rely on the s.21 notice provision
- 3 Whether proceedings following failure to serve the s.21 notice are null and void under s.22
Ratio Decidendi
The Farm Debt Mediation Act's notice provision in s.21 must be served before enforcement proceedings may be taken and this entitlement is not conditioned on showing insolvency; consequently, proceedings following failure to serve the s.21 notice are null and void under s.22; the contempt provisions were set aside because they were made without prior notice and have been purged by payment of costs; the motion for summary judgment was therefore dismissed and the order of the trial judge set aside.
Court Disposition
Appeal allowed; order of Harris J. set aside; respondent's motion for summary judgment dismissed; contempt provisions set aside; specified costs directions issued.
Orders
- Order of Harris J. set aside
- Respondent's motion for summary judgment dismissed
Full Case Text
Judgment text and source record
1 paragraphs
McKenna v. Marshall Collection Decisions of the Court of Appeal Date 2004-05-13 Docket numbers C40991 Judges Catzman, Marvin Adrian; Moldaver, Michael James; Goudge, Stephen Thomas Subject Civil Decision Content DATE: 20040513 DOCKET: C40991 COURT OF APPEAL FOR ONTARIO RE: GEORGE McKENNA (Plaintiff/Respondent in Appeal) -and- ANTHONY HAROLD MARSHALL and CATHY MARSHALL (Defendants/Appellants in Appeal) BEFORE: CATZMAN, MOLDAVER and GOUDGE JJ.A. COUNSEL: Michael A. Jaeger for the appellants Dalkeith Palmer for the respondent HEARD & ENDORSED: May 12, 2004 On appeal from the judgment of Justice C. Raymond Harris of the Superior Court of Justice dated October 21, 2003. APPEAL BOOK ENDORSEMENT [1] There is no issue that the appellant is a farmer. We see no requirement in the Farm Debt Mediation Act, 1997 that the appellant, in order to take advantage of the notice provision in s. 21, he must first demonstrate that he is an insolvent farmer. Having regard to the language of sections 21 and 22 of the Act, we see no answer to Mr. Jaeger's submission that the respondent was not entitled to take proceedings to enforce his security without first serving the notice under s. 21. All of the proceedings that followed the failure to serve that notice are, as provided in s. 22, null and void. [2] The provisions of the order of Harris J. relating to the appellant's contempt of court should also be set aside, both because they were taken without prior notice to him and because the alleged contempt has been purged by payment of the costs to which those provisions related. [3] The appeal is allowed, the order of Harris J. is set aside and the respondent's motion for summary judgment is dismissed. [4] There will be no costs to or against either party on the motion before Harris J. We would not disturb the order for costs of $750.00 made by Justice Henderson. The appellant is entitled to his costs of this appeal, which we fix in the amount of $5,000.00, inclusive of G.S.T. and disbursements, and which are payable by the respondent forthwith, without right of set-off.