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THE LATEST WORD

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Assignment

1. General
2. Legal and Equitable Assignment
3. Notice of Legal Assignment Must be in Express Writing

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1. General

An 'assignment' is the 'stepping into the shoes' of another, typically in the course of a contract or a chattel sale. Perhaps the most common form of assignments are the wholesale trade in contract debts, emanating from credit card defaults (or alleged defaults).

As can be seen below, assignment cases often revolve around the provisions of the Conveyancing and Law of Property Act.

2. Equitable Assignment

. Nadeau v. Caparelli

In Nadeau v Caparelli (Ont CA, 2016) the court discusses the requirements of equitable assignment in the context of an appeal from a summary judgment below:
[18] The parties agreed no assignment of the Note took place from 111 to Nadeau that complied with s. 53(1) of the Conveyancing and Law of Property Act, R.S.O. 1990, c. C.34.[1] The issue on the motion then became whether Nadeau had demonstrated no genuine issue requiring a trial existed as to whether 111 had made an equitable assignment of the Note to Nadeau.

[19] Equity does not require a particular form to effect a valid assignment, but whatever form is used must clearly show an intention that the assignee is to have the benefit of the debt or chose in action assigned: Halsbury’s Laws of Canada, “Personal Property and Secured Transactions” (Markham: LexisNexis Canada, 2013), at HPS-110 and HPS-111; G.H.L. Fridman, The Law of Contract in Canada, 6th ed. (Toronto: Thomson Reuters Canada, 2011), at pp. 648-49. As summarized by Michael Furmston in Cheshire, Fifoot & Furmston’s Law of Contract, 16th ed. (Oxford: Oxford University Press, 2012), at p. 636:
The transaction upon which the assignee relies need not even purport to be an assignment nor use the language of an assignment. If the intention of the assignor clearly is that the contractual right shall become the property of the assignee, then equity requires him to do all that is necessary to implement his intention. The only essential and the only difficulty is to ascertain that such is the intention. [Citations omitted.]
....

[27] DiGuilo clarified that there are four kinds of assignments: legal assignments of legal and of equitable choses in action, and equitable assignments of legal and of equitable choses. According to DiGuilo, the following principles determine whether an assignee must join an assignor as party to an action to enforce an assignment:
(i) In the case of a legal assignment of either a legal or equitable chose – i.e. an assignment that complies with s. 53(1) of the Conveyancing and Law of Property Act – the assignee can sue alone: DiGuilo, at p. 397;

(ii) An assignee also can sue alone where there is an equitable assignment of an equitable chose in action. This followed from rule 89 (then rule 88) of the former Rules of Practice, R.R.O. 1980, Reg. 540, as amended, which stated: “An assignee of a chose in action may sue in respect thereof without making the assignor a party.” In DiGuilo, this court limited the scope of former rule 89 to equitable assignments of equitable choses in action (at p. 402-3);

(iii) In the case of an equitable assignment of a legal chose in action, however, the assignee must join the assignor as a necessary party (at pp. 397 and 403).
[28] When, in 1985, the Rules of Practice were replaced by the Rules of Civil Procedure, former rule 89 gave way to what is now rule 5.03(3), which states:
5.03(3) 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.
[29] The motion judge did not refer to rule 5.03(3) in his reasons, and it is not clear that the parties drew his attention to it.

[30] The impact of rule 5.03(3) on the principles of joinder laid down in DiGuilo has not received prior consideration by this court. In the present case, the parties agreed the assignment of the Note did not meet the requirements of s. 53(1) of the CLPA. It follows that the assignment was an equitable assignment of a legal chose of action. While the principles stated in DiGuilo would require the joinder of the assignor for an action on such an assignment, in my view rule 5.03(3) modifies DiGuilo to the following extent: as long as the assignment was absolute and notice in writing was given to the appellants of the assignment, Nadeau was not required to join 111 as a party.

....

[32] Since the appellants contend the assignment of the Note did not meet the requirements of r. 5.03(3), I would conclude by observing that even if it did not, in the circumstances of this case there would be no reason to interfere with the motion judge’s conclusion that the appellants did not suffer any prejudice from the joinder of 111. An equitable assignee’s failure to add an assignor as a party would be an irregularity, leaving it open to the motion judge to “grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute”: rule 2.01(1).

3. Notice of Legal Assignment Must be in Express Writing

. 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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