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 AND ENDORSED:
May 12, 2004
On appeal from the judgment of Justice C. Raymond Harris of the Superior Court of Justice dated October 21, 2003.
A P P E A L B O O K E N D O R S E M E N T
[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.