Transit Trailer Leasing Limited v. Vital Richard Enterprise Inc., 2009 ONCA 756

CITATION: Transit Trailer Leasing Limited v. Vital Richard Enterprise Inc., 2009 ONCA 756

DATE: 20091102

DOCKET: C50290

COURT OF APPEAL FOR ONTARIO

O’Connor A.C.J.O., Juriansz and Rouleau JJ.A.

BETWEEN:

Transit Trailer Leasing Limited, Transit Trailer Limited, Direct Transfer Inc. and 2104026 Ontario Ltd.

Applicants (Respondents)

and

Vital Richard Enterprise Inc.

Respondent (Appellant)

Andrew F. Camman, for the appellant

Stanley G. Mayes, for the respondents

Heard and orally released: October 28, 2009

On appeal from the judgment of Justice J. Desotti of the Superior Court of Justice dated March 12, 2009.

ENDORSEMENT

[1] It is conceded that immediately before the appellant seized the collateral, its security interest had not attached. The appellant does not take issue with the application judge’s finding that the appellant did not have a signed security agreement. The appellant now argues, however, that when it came into possession of the collateral by seizing it, its security interest attached under s. 11(2)(b) of the Personal Property Security Act.

[2] We do not accept this argument. On the facts of this case, the seizure of the collateral from the third party who had purchased it from the debtor did not give the appellant possession so as to constitute an attachment under s. 11(1) of the Personal Property Security Act that would defeat the interests of the third party.

[3] The appeal is, therefore, dismissed. The costs of the respondent are fixed in the amount of $7,500, inclusive of disbursements and GST.

“D. O’Connor A.C.J.O.”

“R.G. Juriansz J.A.”

“Paul Rouleau J.A.”