Thomson Consumers Electronics Canada v. Coopers & Lybrand

Thomson Consumers Electronics Canada v. Coopers & Lybrand

Appeal dismissed because on the dates suppliers presented written s.81.1 demands neither the trustee nor the receiver was in possession of the 30‑day goods: Tibbett had physical possession supported by a GSA security interest and a possessory lien that precluded trustee possession, and the receiver had not taken possession and had bargained away rights; therefore suppliers lacked the possession required by s.81.1 and s.81.1(6) did not apply, and no statutory basis existed to permit repossession upon payment of storage charges.

Citation
C25843
Parties
Appellant: Thomson Consumers Electronics Canada Inc.; Appellant: Philips Electronics Ltd.; Appellant: Sharp Electronics of Canada Ltd.; Appellant: Gusdorf Canada Ltd.; Appellant: Daco Manufacturing Ltd.; Appellant: Sanyo Canada Inc.; Appellant: Tyco Toys (Canada) Inc.; Appellant: Nintendo of Canada Ltd.; Appellant: York Barbell Company Ltd.; Appellant: Bionaire Inc.; Appellant: Mattell Canada Inc.; Appellant: Canada Games Company; Appellant: Manor House Mattress Company; Respondent: Coopers & Lybrand (in its capacity as Receiver and Manager of Consumers Distributing Inc.); Respondent: Tibbett & Britten Group Canada Inc.; Respondent: Storcare Supply Chain Management Inc.
Court
Court of Appeal for Ontario
Jurisdiction
Canada
Judgment Date
5 February 1999
Procedural Posture
Civil / Appeal From Judgment Dismissing Suppliers' Application for Repossession Under S.81.1 BIA
Outcome
Appeal dismissed
Legal Topics
Repossession Under S.81.1 BIA, Possession, Receivership, Posessory Lien (rsla), Priority of Security Interests, Postponement Agreements
Source Language
English
Bankruptcy and Insolvency Commercial Law Property Law Statutory Interpretation Repossession Under S.81.1 BIA Possession Receivership Posessory Lien (rsla) +2 more

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Parties

Thomson Consumers Electronics Canada Inc.

Appellant

Philips Electronics Ltd.

Appellant

Sharp Electronics of Canada Ltd.

Appellant

Gusdorf Canada Ltd.

Appellant

Daco Manufacturing Ltd.

Appellant

Sanyo Canada Inc.

Appellant

Tyco Toys (Canada) Inc.

Appellant

Nintendo of Canada Ltd.

Appellant

York Barbell Company Ltd.

Appellant

Bionaire Inc.

Appellant

Mattell Canada Inc.

Appellant

Canada Games Company

Appellant

Manor House Mattress Company

Appellant

Coopers & Lybrand (in its capacity as Receiver and Manager of Consumers Distributing Inc.)

Respondent

Tibbett & Britten Group Canada Inc.

Respondent

Storcare Supply Chain Management Inc.

Respondent

Procedural Posture

Civil / Appeal From Judgment Dismissing Suppliers' Application for Repossession Under S.81.1 BIA

Legal Issues

  1. 1 Whether trustee was in possession of 30-day goods for the purpose of s.81.1 BIA
  2. 2 Whether receiver was in possession (or had possession) of 30-day goods for s.81.1 BIA
  3. 3 Proper statutory interpretation of "possession" in s.81.1

Ratio Decidendi

Appeal dismissed because on the dates suppliers presented written s.81.1 demands neither the trustee nor the receiver was in possession of the 30‑day goods: Tibbett had physical possession supported by a GSA security interest and a possessory lien that precluded trustee possession, and the receiver had not taken possession and had bargained away rights; therefore suppliers lacked the possession required by s.81.1 and s.81.1(6) did not apply, and no statutory basis existed to permit repossession upon payment of storage charges.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed with costs to the respondents