COURT OF APPEAL FOR ONTARIO

DATE: 20000302

DOCKET: C31586

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

[1] The appeal must be dismissed.

[2] We 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.

[3] The 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.

[4] The appeal is dismissed.