Non-Possessory Lien (RSLA)

Connolly v. Advantagewon Inc., 2015 ONCA 709 (CanLII)

[1] The appellant, Kevin Connolly, appeals from the judgment of Douglas J. which declared that the respondent, Advantagewon Inc., was entitled to a non-possessory lien under Part II of the Repair and Storage Liens Act, R.S.O. 1990, c. R. 25 (“RSLA”), in respect of the appellant’s 2011 Nissan Titan (the “Vehicle”).

[22] First, although s. 1 of the RSLA includes within the definition of “repair” an “expenditure of money on…an article for the purpose of altering, improving or restoring its properties,” the Loan Application and Contractual Repair Agreement did not treat the respondent as the repairer in whose favour a lien was created. They treated Xclusive as the repairer. If no lien arose in favour of Xclusive, the respondent had no lien it could take by assignment.

[23] Second, the respondent’s submission blurs the distinction between liens that may arise under the RSLA and security interests which can be taken in personal property under the Personal Property Security Act, R.S.O. 1990, c. P.10 (“PPSA”). Whereas possession of the personal property to which a lien attaches plays a key role under the RSLA, under the PPSA a person can take a security interest in personal property which it never possessed.