Scott Steel Ltd. v. Alarissa ( The )
T-1457-93
Richard J.
30/1/97
19 pp.
Appeal by intervenor, Province of Alberta Treasury Branches (ATB) from order of prothonotary ([1996] 2 F.C. 883) setting priorities to $800,000 proceeds of sale of Edmonton Queen-Plaintiff Scott Steel Ltd. hired by defendant North Saskatchewan River Boat Ltd. (NSRB) to construct Edmonton Queen-Action brought by plaintiff for payment of monies outstanding for construction of ship-Possessory lien exercised on vessel-Vessel arrested pursuant to warrant issued in Court-ATB seeking to have vessel sold as NSRB no longer in position to ready vessel for use-Ship sold for $800,000, funds paid into Court-By order dated March 13, 1996, prothonotary determined priorities on proceeds of sale of ship-ATB's claim arising out of loan agreement-Prothonotary concluding usual priorities not to be departed from except in very special circumstances-Powers in equity to upset long established orders of priority should be exercised only where necessary to prevent obvious injustice-Grounds of appeal raised by ATB including evidentiary issues, existence of possessory lien, waiver of possessory lien, reversal of priorities-Appellate review limited to instances where manifest, palpable error made-Error of law always reason for intervention by judge-Judge, on appeal from prothonotary, ought to exercise own discretion de novo where discretionary order of prothonotary raises question vital to final issue of case-Parties entitled to discretion of judge, not to that of prothonotary-Determination by prothonotary concerning reversal of usual priorities discretionary as involving exercise of discretion based on equitable principles to prevent obvious injustice-Question involved vital to final issue of case as finally determining ranking of claims, even though amount of claims remains to be decided-Finding of prothonotary concerning existence of valid possessory lien not discretionary-Prothonotary not committing error of law, palpable and overriding error in making following nondiscretionary findings: 1) Scott Steel had valid possessory lien; 2) no waiver by Scott Steel of right to possessory lien; 3) Scott Steel not estopped from relying on possessory lien; 4) usual priorities would rank Scott Steel's claim ahead of that of ATB-Prothonotary not seeing it as unjust to leave usual priorities in place-Record, including reasons, not disclosing lack of appreciation of relevant evidence, more particularly, complete disregard of evidence by prothonotary-Prothonotary not committing error of law, not making findings of fact in perverse, capricious manner-Not exercising discretion in unreasonable manner-Usual priorities not to be departed from-Appeal dismissed.