Case: Taylor’s Towing v. Intact Insurance Company, 2017 ONCA 992 (CanLII)
Keywords: Property; Creditor’s Remedies; Repair and Storage Liens Act, R.S.O. 1990, C. R.25; Indian Act, RSC 1985, c I-5
Vehicles owned by Ontario residents and insured by the Respondent, Intact Insurance Company, are involved in accidents. Following an accident, ownership effectively transfers to the Respondent. The vehicles are towed and stored by the Appellants, Taylor’s Towing, JR Towing and Salvage and Mohawk Towing. Each of these towing companies is owned by members of the Six Nations of Grand River Indian Reserve and located within the boundaries of Six Nations. Most of the vehicles are towed and stored at the request of Six Nations police.
A dispute arises with respect to towing and storage fees. The Respondent insurance company brings an application under the Repair and Storage Liens Act, R.S.O. 1990, C. R.25 (RSLA) to permit retrieval of the vehicles (in exchange for payment of money into court to the credit of any actions by the Appellants for their fees).
The Appellants refuse to release the vehicles and bring a separate application seeking declaratory relief on the basis they are exempt, pursuant to s. 89(1) of the Indian Act, RSC 1985, c I-5, from execution or seizure. The Application Judge dismisses the Appellant’s exemption application and ordered the immediate release of the vehicles.
On appeal, the Appellants submit the Application Judge erred in his interpretation of the interaction between the RSLA and the Indian Act; that the words “personal property” at s. 89(1) of the Indian Act should be defined broadly to include “…all choses in action and evidence of debt, including liens”. In other words, their position is that assets located on a reserve cannot be attached by “non-Indian parties”.
The Court of Appeal dismisses the appeal and finds that the Appellants cannot claim the protection of s. 89(1) of the Indian Act in this case.
Although the Court of Appeal determined this case raised “…a number of issues regarding the nature of personal property protected by s. 89(1) of the Indian Act”, it ultimately chose to decide the matter on the narrow question of that section’s application to the Respondent insurer as a non-creditor. What is the significance of the Respondent’s creditor/non-creditor status?
Section 89(1) of the Indian Act provides as follows:
89(1) Subject to this Act, the real and personal property of an Indian or a band situated on a reserve is not subject to charge, pledge, mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of any person other than an Indian or a band.
The Court of Appeal determined that this section only protects against seizure from creditors or the Crown. In support of this position, the Court referred to Mohawk Council of Akwesane v. Toews, 2012 FC 1442 (CanLII). In that decision, Near J. explained the purpose of s. 89 of the Indian Act at para. 34:
The Supreme Court of Canada has held on more than one occasion that the purpose of the exemptions in [s. 89] “was to preserve the entitlements of Indians to their reserve lands and to ensure that the use of their property on their reserve lands was not eroded by the ability of governments to tax, or creditors to seize.” (Citing Bastien Estate v. Canada, 2011 SCC 38 (CanLII),  2 SCR 710 at para. 23; McDiarmid Lumber Ltd. v. God’s Lake First Nation, 2006 SCC 58 (CanLII),  2 SCR 846 at para. 27; Williams v. Canada, 1992 CanLII 98 (SCC),  1 SCR 877.).
The Court of Appeal found the Respondent was a debtor, not a creditor. As such, the Appellants are not permitted to claim the protection of s. 89(1) of the Indian Act and the appeal is dismissed.
Counsel for the Appellants: Ian Smits (Smits, Gerry, Law Firm, Brantford)
Counsel for the Respondents: Lisa Carr (Carr Law Professional Corporation, Woodbridge)