COURT OF APPEAL FOR ONTARIO
RE: THE CORPORATION OF THE TOWNSHIP OF GLANBROOK
(Plaintiff/Respondent) v. CAMERON & JOHNSTONE
LIMITED and JOHN JOHNSTONE (Defendants/Appellants)
BEFORE: DOHERTY, LASKIN and MOLDAVER JJ.A.
COUNSEL: John W. McDonald
for the appellants
Lee A. Pinelli
for the respondent
HEARD: March 1, 2000
On appeal from the judgment of Mr. Justice Cavarzan dated January
25, 1999.
E N D O R S E M E N T
1The appeal must be dismissed.
2We cannot interfere with the motion judge’s finding that the
taxpayer was in possession of the chattels in issue on June 2nd
when the Municipality exercised its right of distraint. The
agreed statement of facts is terse on the question of possession.
However, the taxpayer had legal title to the chattels as of June
2nd and, in our view, in the absence of evidence to the contrary,
the motion judge was entitled to conclude that the taxpayer had
at least constructive possession of the chattels. We do not
agree with the appellants’ contention that by vacating the
premises on which the chattels were kept, the taxpayer must
necessarily be taken to have given up possession of the chattels.
3The sale of the chattels occurred prior to the bankruptcy of
the taxpayer. Consequently, neither the Bankruptcy and
Insolvency Act, nor the judgment of this court in Re Everingham
Brothers Ltd. (1999), 1999 1705 (ON CA), 43 O.R. (3d) 594 have application.
4The appeal is dismissed.