DATE: 20010522
DOCKET: C34973
COURT OF APPEAL FOR ONTARIO
CARTHY, FELDMAN and SIMMONS JJ.A.
B E T W E E N:
PHYLLIS MAY FERRIER
Applicant
Peter T. Fallis for the Appellant
(Appellant)
- and -
PETER CIVIERO, PETER CIVIERO AND IGNAT KANEFF, IN TRUST GINO CIVIERO, and MAZTA HOLDINGS LIMITED, PETGINO INVESTMENTS LIMITED Respondents
Richard A. Gazzola and Mark M. Rodenburg for the respondent Gino Civiero
Glenn E. Cohen and Sutapa Karmakar for the respondent Mazta Holdings
(Respondents in Appeal)
Limited
HEARD: March 8, 2001
On appeal from the judgment of the Divisional Court (Justice Nicholson D. McRae and Justice James D. Carnwath; Justice Anne M. Molloy dissenting) dated June 7, 2000.
CARTHY J.A.:
[1] The appellant is an execution creditor of the respondent, Peter Civiero, who holds a 25 per cent interest in a 38 acre parcel of land as tenant in common with two of the other respondents who are, or represent, members of his family. The appellant’s entitlement to direct the sheriff to sell Civiero’s undivided 25% interest is not in dispute. However, the appellant wished to be able to sell the entire parcel in order to effectively execute on Mr. Civiero’s interest in the lands. Justice Ronald G. Thomas dismissed an application by the appellant under the Partition Act, R.S.O. 1990, c. P.4 for a sale of the entire 38 acre parcel. The majority of the Divisional Court upheld his finding (Molloy J. dissenting) and leave was given to this appeal. I agree with the majority of the Divisional Court and would dismiss the appeal for the reasons that follow.
[2] From a practical point of view a sale of Civiero’s undivided interest would not attract outside bidders and would result in a bidding contest between the family respondents and the appellant. The appellant, understandably, does not wish to invest further money in pursuit of her $700,000 debt and therefore seeks to use her status as an execution creditor to accomplish what would normally be pursued by a co-tenant – a sale of the entire parcel in lieu of partition.
[3] The relevant provision of the Partition Act reads:
- – (l) Any person interested in land in Ontario, or the guardian of a minor entitled to the immediate possession of an estate therein, may bring an action or make an application for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested.
[4] In dissent, Molloy J. expressed the view that since the appellant could accomplish her goal by selling the undivided 25 per cent, becoming a purchaser and then seeking a sale, she should be entitled to the same result by directing the sheriff to seek partition or sale. In reaching that conclusion she made the legal finding that the sheriff holding a writ of seizure and sale has an interest in the property and the right to possess it for purposes of sale.
[5] I respectfully disagree with both legal findings. The sheriff has no interest in the land and the seizure and sale does not give the sheriff the right to possession. Unlike chattels, the seizure is a nominal one of posting the property for sale and if possession is not offered up after a sale, proceedings for ejectment must follow.
[6] In Morrison v. Morrison (1917), 1917 CanLII 536 (ON CA), 34 D.L.R. 677 (Ont. S.C. (A.D.)), Meredith C.J.C.P. stated at p. 681:
It was well-settled, and well-understood, law that only those who were entitled to possession of their shares in land could have partition; that is the law in England now, and always has been, though its statutes in regard to partition and sale are wide and liberal: see Dodd v. Cattell, [1914] 2 Ch. 1, in which counsel for the party seeking partition on being asked by the Court, “Can a person entitled in remainder expectant on a life estate obtain a partition?” answered, “No, there must be possession,” shewing how well-settled and well-understood the rule there is. And in the United States of America, it seems to have been equally so well-settled and well-understood. The rule there is thus stated in the Cyclopaedia of Law and Practice, vol. 30, p. 182: “It was the rule both at common law and in Chancery that none but estates in possession were subject to compulsory partition. This rule prevails in the United States except where it has been abrogated by statute.” And, until money instead of land was brought in sight by legislation, it is difficult to understand why partition would be made, or sought, except to give possession in severalty.
[7] Further, in B.W. Powers & Son Ltd. v. Town of Trenton, 1967 CanLII 35 (ON CA), [1967] 2 O.R. 432 (C.A.), aff’d (sub nom. Trenton (Town) v. B.W. Powers & Son Ltd.) 1969 CanLII 13 (SCC), [1969] S.C.R. 584, Laskin J.A. stated for the Court of Appeal at pp. 445-46:
The effect of the execution against Hawley was to bind his lands to liability to sale in accordance with the then governing statute. ... The lands were bound (even if not, strictly speaking, seized) when the writ of execution was lodged with the Sheriff: see Reid v. Miller (1865), 24 U.C.Q.B. 610 at p. 623; and cf. Power v. Grace, 1932 CanLII 116 (ON CA), [1932] O.R. 357 at pp. 360-61, [1932] 2 D.L.R. 793 at pp. 796-7. No intervening rights arose in favour of third persons prior to sale of the lands pursuant to the execution. Indeed, while the execution debtor Hawley may have been free to deal with the lands until seizure and sale, none the less he could only do so subject to the rights of the execution creditor: see McPherson et al. v. Temiskaming Lumber Co., Ltd., 1912 CanLII 363 (UK JCPC), 9 D.L.R. 726 at pp. 731-2, [1913] A.C. 145. These included the right to have the Sheriff advertise the lands for sale (and in that respect to mark a seizure thereof), and to sell accordingly and pass to the purchaser whatever title the execution debtor had at the time the execution was lodged where no rights of others intervened.
[8] With neither a legal interest nor a right to possession, the sheriff does not qualify under the Partition Act to apply for partition or sale. I agree with the reasons of the majority of the Divisional Court and with those of Thomas J. and would dismiss the appeal with costs.
Released: May 22, 2001 “JJC”
“J.J. Carthy J.A.”
“I agree K. Feldman J.A.”
“I agree J. Simmons J.A.”