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Assignment - Legal (CLPA s.53)
COMMENT
Section 53(1) of the Conveyancing and Law of Property Act (CLPA) addresses two legal things that can be assigned: 'debts' and 'other legal choses in action'.
The first of these - 'debt' - is quite common in our society, classically taking the form of defaulted credit card or similar loans (but not being restricted to those). Most liquidated (ie. fixed amount) non-judgment or judgment debts will qualify. Such debts are 'assigned' (typically traded on masse) by financial companies, who - in conjunction with debt collection and credit reporting operations - attempt to pressure maximize recovery from (mostly) poor debtors.
'Choses in action' are similar, though they are not all debts and none are in judgment form (ie. they still have to be sued on), classically they are speculative unliquidated damage claims and they are much less assigned.
Under CLPA s.53(1), in order to be effective, such assignments must be (all of the below):- absolute (ie. unconditional);
- in writing (by the assignor);
- given by "express notice in writing" to the debtor; and
- "not purporting to be by way of charge only" (a 'charge' is a contractual security to secure payment of an obligation, such as a GSA to secure a debt) - ie. such securities are not assignable under CLPA s.53(1).
Further, such a s.53 CLPA assignment is "subject to all equities that would have been entitled to priority over the right of the assignee if this section had not been enacted" - ie. if the debtor had any equitable defences against the original creditor, such as a 'clean hands' defence, that defence is good against the assignee creditor.
Note that a 'legal' limitations defence, while not being equitable, still operates in favour of the debtor through an assignment - as it is still the same original "claim": LA s.4]. There may be other legal defences that still operate through such assignments.
Additionally, most consumer credit transactions are governed by the Consumer Protection Act (CPA) [soon to be repealed and replaced], which see: Loan and Credit Regulation under the Consumer Protection Act (CPA).
. Landmark Vehicle Leasing Corporation v. Mister Twister Inc.
In this case, Landmark Vehicle Leasing Corporation v. Mister Twister Inc. (Ont CA, 2015), which was a dispute over auto leases, the court identifies passages of the Conveyancing and Law of Property Act (CLPA), RSO 1990 that applied. A notice of a CLPA assignment (which is 'legal' as opposed to 'equitable') is required to be in express writing, which it was not. Consequently the 'assignor' (the one who sold the debt) need be joined in the action against the debtor, although the court rules may except that requirement:THE FAILURE TO GIVE WRITTEN NOTICE OF THE ASSIGNMENT
[9] The Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34, applies to the lease assignments. Section 53(1) reads in part:Any absolute assignment made on or after the 31st day of December, 1897, by writing under the hand of the assignor, … of any debt or other legal chose in action of which express notice in writing has been given to the debtor … is effectual in law, subject to all equities that would have been entitled to priority over the right of the assignee if this section had not been enacted, to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same without the concurrence of the assignor. [Emphasis added.] [10] Section 53(1) requires “express notice in writing” to the debtor. Although there is some ambiguity in her reasons, it would appear that the trial judge found that Mr. Blazys had express notice of the assignment, but not notice in writing. Ross Wemp Leasing therefore did not assign the leases to Landmark in law: see 80 Mornelle Properties Inc. v. Malla Properties Ltd., 2010 ONCA 850 (CanLII), 327 D.L.R. (4th) 361, at para. 22. Ross Wemp Leasing did, however, assign the leases to Landmark in equity. An equitable assignment does not require any notice, let alone written notice: Bercovitz Estate v. Avigdor, [1961] O.J. No. 20 (C.A.), at paras. 16, 25.
[11] The appellants, relying on DiGuilo v. Boland, 1958 CanLII 92 (ON CA), [1958] O.R. 384 (C.A.), aff’d, [1961] S.C.C.A. vii, argue that as the appellants did not have written notice of the assignment, Landmark could not sue on its own. Instead, Landmark had to join Ross Wemp Leasing in the action. The appellants argue that the failure to join Ross Wemp Leasing requires that the judgment below be set aside.
[12] DiGuilo does in fact require that the assignor of a chose in action be joined in the assignee’s claim against the debtor when the debtor has not received written notice of the assignment. The holding in DiGuilo tracks rule 5.03(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194:In a proceeding by the assignee of a debt or other chose in action, the assignor shall be joined as a party unless,
(a) the assignment is absolute and not by way of charge only; and
(b) notice in writing has been given to the person liable in respect of the debt or chose in action that it has been assigned to the assignee. [Emphasis added.] [13] Yet the assignee’s failure to join the assignor does not affect the validity of the assignment or necessarily vitiate a judgment obtained by the assignee against the debtor. Rule 5.03(6) reads:The court may by order relieve against the requirement of joinder under this rule. [14] The joinder requirement is intended to guard the debtor against a possible second action by the assignor and to permit the debtor to pursue any remedies it may have against the assignor without initiating another action: DiGuilo, at p. 395. Where the assignee’s failure to join the assignor does not prejudice the debtor, the court may grant the relief in rule 5.03(6): see Gentra Canada Investments Inc. v. Lipson, 2011 ONCA 331 (CanLII), 106 O.R. (3d) 261, at paras. 59-65, leave to appeal refused, [2011] S.C.C.A. No. 327.
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