Endnotes2017-03-03T18:35:02+00:00

[1] Forestry Workers Lien for Wages Act, RSO 1990, c F28 [“Forestry Lien Act”].

[2] Buchanan Forest Products Ltd (Re), 2009 CanLII 50222 (ON SC), <http://canlii.ca/t/25qv7> retrieved on 2012-07-16 [“Buchanan”].

[3] This history focuses on Northern Ontario because the Act’s coverage is geographically restricted to only Northern Ontario (i.e. north of the French River) and the District of Haliburton.  See Forestry Lien Act, note 1, s 2.

[4] Ian Radforth, Bush Workers and Bosses: Logging in Northern Ontario 1900-1980 (Toronto: University of Toronto Press, 1987) 3 [Bushworkers]. This book focuses on logging in the 20th century. For a comprehensive discussion of 19th century Ontario logging, see Radforth “The Shantymen” in Labouring Lives: Workers: Work and Workers in Nineteenth-Century Ontario (University of Toronto Press: Toronto, 1995) 204.

[5] Bushworkers, note 4, ch 2, esp 26-27; C Ross Silversides and Richard A Rajal, Broadaxe to Flying Shear: the Mechanization of Forest Harvesting East of the Rockies (Ottawa: National Museum of Science and Technology, 1997) 126-127 [Broadaxe].

[6] Bushworkers, note 4, 27-32.

[7] Bushworkers, note 4, ch 5.

[8] Forestry Lien Act, s 1.

[9] Bushworkers, note 4, 98-99.

[10] Broadaxe, note 4, 128.

[11] Broadaxe, note 4, 128, Bushworkers 53-54.

[12] Bushworkers, note 4, 54-57.

[13] Bushworkers, note 4, 57-59.

[14] Bushworkers, note 4, 49; 60.

[15] Bushworkers, note 4, 60-62; Broadaxe, note 4, 129.

[16] Broadaxe, note 4, 129-130; Bushworkers, note 4, 63-66.

[17] Broadaxe, note 4, 145; Bushworkers, note 4, 172-175.

[18] For an extremely comprehensive discussion of the mechanisation of the logging industry over the twentieth century, see Broadaxe, note 4, Part I. For specifics on the introduction of harvesters, see Bushworkers, note 4, 214-218.

[19] See Broadaxe, note 4, Part I..

[20] For discussion of the introduction of power skidders, see Bushworkers, note 4, 206-214.

[21] “Ontario’s Forest Industry: Where Have all the Loggers Gone?” online: Wildlands League <http://www.wildlandsleague.org/attachments/Where%20Have%20Loggers%20Gone%20FS1.pdf>

[22] Bushworkers, note 4, 42-44.

[23] Bushworkers, note 4, 37-40. As James Willard Hearst wrote in the context of Wisconsin (his observations also appear applicable in the Ontario context), one of the effects of the log lien laws was that lien rights gave workers some confidence that they would get paid at the end of the season, even if their employer suffered financial difficulties. Log liens thus performed necessary economic functions for both employers and employees. James Willard Hearst, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin 1836-1915 (Cambridge, MA: Belknap Press, 1964) 391-392.

[24] Bushworkers, note 4, 107-108.

[25] Broadaxe, note 4, 137.

[26] Broadaxe, note 4, 137-139.

[27] See discussion of the growth of unionism in chapters 6 and 7 of Bushworkers, note 4.

[28] See Bushworkers, note 4, 230-236.

[29] See Bushworkers, note 4, 230-236.

[30] Broadaxe, note 4, 134.

[31] Broadaxe, note 4, 143.

[32] Ontario, Legislative Assembly, Newspaper Hansard, 7th Parl, 2nd Sess, (3 April 1891) (Hon A S Hardy).

[33] Broadaxe, 133-134, note 4.

[34] Statistics in this paragraph drawn from Forest Products Association of Canada, Economic Backbone: Interactive Map. Online: http://www.fpac.ca/index.php/en/economic-backbone/ (last accessed August 17 2012).

[35] Forestry Lien Act.

[36] See for example Ex parte Deeze (1748) 1 Atk 228; 26 ER 146 (Ch), regarding the existence of a lien for packers. For a general discussion of the nature of liens, see generally Alfred H Silverton, the Law of Lien (Butterworths, London, 1988); CED (Ont 4th) vol 37, title 94.

[37] Dempsey v. Carson (1861) 11 UCCP 462 (UCCP); Tappenden v. Artus [1964] 2 QB (CA).

[38] See discussion of this issue in Silverton, note 36, chapter 3.

[39] Rust v. McNaught (1918) 144 LT Jo 440 (CA).

[40] Jones v. Pearle (1736) 1 Srt 557 93 ER 698. Note however that the lien is not lost if the loss of possession was the result of fraud or theft – see Wallace v. Woodgate (1824) Car & P 575 171 ER 1323.

[41] Liens can be either general or particular. The distinction between the two is described well in the Alberta Law Reform Institute’s 1992 Report on Liens as follows:

A particular lien gives the claimant the right to keep possession of goods until payment of charges relating to those goods. A general lien is wider in that it also secures charges that relate to goods which are no longer in the possession of the lien claimant. For example, the lien of a repairer is a particular lien which only secures repairs that relate to the goods in the possession of the lien claimant. … The general lien of a stockbroker secures charges that relate to securities in the possession of the stockbroker as well as previous charges that relate to securities that have been surrendered or sold. 

(Alberta Law Reform Institute, Report on Liens (Edmonton: Alberta Law Reform Institute, 1992, 7) [“ALRI Report on Liens”] The liens which will be discussed in this paper are, for the most part, particular liens.

[42] See for example the Forestry Lien Act, note 1, Livestock Lien Act RSBC 1996 c 272, Threshers’ Lien Act CCSM c T60. These liens were preceded by the similar Mechanics liens, supposedly adopted for the first time in North America (drawing on European practice) at the instigation of Thomas Jefferson in 1791.  These liens secured payment for tradespeople working in construction and were as much about encouraging those people to help build towns and cities in a rapidly expanding country as they were about protecting workers. See discussion in Samuel Louis Phillips, A Treatise on the Law of Mechanics’ Liens on Real and Personal Property (Washington, DC: Little, Brown, 2ed, 1883).  Mechanics lien legislation was passed in Ontario in 1873 (An Act to establish Liens in favour of Mechanics, Machinists and others SO 1873 c 27), and is the forerunner to the modern Construction Lien Act RSO 1990 c C-30.

[43] See discussion of the economic environment and early attempts at wage protection in Ontario in Jeremy Webber “Labour and the Law” in Labouring Lives: Workers: Work and Workers in Nineteenth-Century Ontario (University of Toronto Press: Toronto, 1995) 144-146.

[44] Woodman’s Lien for Wages Act SO 1891 c 22.

[45] The Buchannan group of companies became insolvent in February 2009, and 28 lien claims were advanced.  Preliminary issues relating to these liens were litigated in Buchanan. This is one of two cases the LCO could identify which invoked the Act in the last 40 years, the other one occurring in 1994 – Canadian Imperial Bank of Commerce v. Levesque Lumber (Hearst) Ltd. [1994] OJ No. 2610 (Ont Ct Gen Div).

[46] Forestry Lien Act, note 1, s 3(1).

[47] Forestry Lien Act, note 1, s 1.

[48] Forestry Lien Act, note 1, s3(2).

[49] Forestry Lien Act, note 1, s 1. “Tan bark” is tree bark that is later processed to be used in the leather tanning process. “Shingle bolts” are blocks of wood from which wooden shingles used to be produced.  “Staves” are the individual pieces of wood from which barrels are made.

[50] Buchanan, paras 38-45.

[51] Forestry Lien Act, note 1, s 7.

[52] Implied by Forestry Lien Act, note 1, s 13(d).

[53] Forestry Lien Act, note 1, ss 5(1) and (2).

[54] Forestry Lien Act, note 1, ss 6.

[55] Forestry Lien Act, note1,  ss 5(3) and (4)

[56] A more comprehensive outline of the enforcement process is set out in chapter III(C)(1) of this paper.

[57] Forestry Lien Act, note 1, s 8(1)

[58] Forestry Lien Act, note 1, s 9(3)

[59] Forestry Lien Act, note 1,  ss 13 and 14.

[60] Forestry Lien Act, note 1, s 23.

[61] Forestry Lien Act, note 1, s 3(1).

[62] This is reflected in the definition of “labour” in Forestry Lien Act, note 1, s 1, which specifically includes work done by “cooks, blacksmiths, artisans and others usually employed in connection therewith [i.e. in connection with logging work]”.

[63] Forestry Lien Act, note 1, s 8(1).  An originating application is the legal document which commences a legal proceeding.

[64] Forestry Lien Act, note 1, s 8(1).

[65] Forestry Lien Act, note 1, s 9(3).

[66] “Wood products” is the generic term used in this paper for all forestry products produced during the logging process, from felled full trees to chips produced by mobile chippers in the forest.  It does not include anything processed in by a mill (e.g. veneer, sawn lumber etc).

[67] “Wood owner” is the generic term used in this paper for the person who has the original legal right to cut and process wood products.  In Ontario, this will typically be the holder of the relevant forestry licence under the Crown Forest Sustainability Act SO 1994 c 25.  The longstanding regime under that Act provided for Forest Resource Licences (under section 27) and Sustainable Forestry Licences (under section 26).  The recent Ontario Forest Tenure Modernization Act SO 2010 c10 introduced a shift to Enhanced Sustainable Forestry Licences, and introduced a pilot project for Local Forestry Management Companies. LFMCs are intended to be governed by a predominantly local board of directors responsible for managing Crown forests and overseeing the marketing and sale of the timber in a given area.  For further discussion of forestry tenure in Ontario see the Ministry of Natural Resources’ tenure website at: www.mnr.gov.on.ca/en/Business/Forests/2ColumnSubPage/STDPROD_091579.html

[68] Forestry Lien Act, note 1, ss 8(3) and (4).

[69] Forestry Lien Act, note 1, s 11(1).

[70] Forestry Lien Act, note 1, s 11(2).

[71] Forestry Lien Act, note 1, s 16.

[72] Forestry Lien Act, note 1, ss 18 and 20.

[73] Forestry Lien Act, note 1, s 19.

[74] Forestry Lien Act, note 1, s 21(1).

[75] Forestry Lien Act, note 1, ss 21(2) and (3).

[76] Forestry Lien Act, note 1, s 23.

[77] Forestry Lien Act, note 1, s 25(2).

[78] See Ontario, Legal Aid Ontario, Tariff & Billing Handbook (Toronto: Legal Aid Ontario) chapter 2. Online at: http://www.legalaid.on.ca/en/info/tariff_billing.asp

[79] In Buchanan, Justice Pierce found that the Act did apply to (most) haulage work, bush road construction, and wood chipping – Buchanan, note 2, paras 50-58. However, this required a degree of interpretation that should not be necessary simply to determine the application of the Act to forms of work that are integral to the modern logging industry. The definition of “labour” still needs to be revised.

[80] Buchanan, note 2, paras 37-45

[81] [1928] SCR 203 [“Keenan”]

[82] Keenan, note 81, 206.

[83] See the list of liens eventually paid out under Buchanan’s CCAA settlement, set out in Schedule B to the vesting order of Justice Morawetz, available online at: http://documentcentre.eycan.com/eycm_library/Project%20Pick%5CEnglish%5CCCAA%202009%5CCourt%20Orders%5CApproval%20&%20Vesting%20Order%20of%20Justice%20Morawetz,%20dated%20September%2013,%202010.pdf

[84] Nedra Pickler “Task force recommends outdated laws to come off the books” Associated Press (28 December 1999) (Factiva).

[85] Pickler, note 84.

[86] For the vote record see Michigan, Journal of the House (90th Legislature, 2000, No 67) 2438-2439.  Online: http://www.legislature.mi.gov/%28S%2842wa5c452ubypbqmrjnlo155%29%29/documents/1999-2000/Journal/House/pdf/2000-HJ-11-30-067.pdf. For the (lack of) policy analysis see Michigan, House Legislative Analysis of Senate Bill 1124 (Lansing: House Legislative Analysis Section, 2000). Online:  http://www.legislature.mi.gov/documents/1999-2000/billanalysis/House/pdf/1999-HLA-1124-A.pdf

[87] Miners Lien Act RSY 2002 c 151 as amended by SY 2008 c 17 [Miners Lien Act]; Stable Keepers Act CCSM c S200.

[88] Manitoba Law Reform Commission, The Stable Keepers Act (Winnipeg: Manitoba Law Reform Commission) 1. Online: http://www.manitobalawreform.ca/pubs/pdf/124-full_report.pdf

[89] Manitoba Law Reform Commission, note 81, 1.

[90] For discussion of the policy intent of the Miners Lien Act amendments see Yukon, Legislative Assembly, 32nd Leg, 1st Sess, No 122 (26 November 2008) at 3539-3540 (Hon Archie Lang).

[91] British Columbia Law Reform Commission, Report on the Woodworker Lien Act (Victoria: Ministry of the Attorney General, 1994).  See also British Columbia Law Reform Commission, Working Paper on Liens for Logging Work (Victoria: Ministry of the Attorney General, 1992).

[92] The British Columbia Government’s approach is discussed further below in chapter V(E) of this paper.

[93] Forestry Service Provider Protection Act SBC 2010 c 16 [“FSPP Act”].  As some operative provisions of the Act are not in force, see the Act as passed at third reading; online: http://www.leg.bc.ca/39th2nd/3rd_read/gov21-3.htm.

[94] FSPP Act, note 93, Part 1 (not in force).  For text of this Part, see the 3rd reading version of the Bill. Online: http://www.leg.bc.ca/39th2nd/3rd_read/gov21-3.htm. Complicating the picture further, during debate on the Bill the existing Woodworkers Lien Act was allowed to stand, and only the compensation fund portion of the new FSPP Act has come into force at this stage.

[95] The only statute for which repeal was recommended was the Beet Lien Act SA 1926 c B-3. The Beet Lien Act was ultimately repealed in 1994.

[96] See ALRI Report on Liens, note 41, 118-135.

[97] See discussion above in chapter III(C)(3) of this paper.

[98] FSPP Act, note 93, s 1(1) (not in force).

[99] Miners Lien Act, note 87, s 2.

[100] Employment Standards Act SO 2000 c 41 s 14(1).

[101] Bankruptcy and Insolvency Act RSC 1985 c B-3 ss 81.3 and 81.4 [“BIA”].

[102] British Columbia Debates of the Legislative Assembly (Hansard) 39th Parl, 2nd Sess, Vol 18 No 6 (25 May 2010) 5677-5680; 5717.

[103] FSPP Act, note 93, s 2 (not in force).

[104] FSPP Act, note 93, s 11 (not in force).

[105] ALRI Report on Liens, note 41, 76.

[106] Construction Lien Act, note 41, s 22(1).

[107] Construction Lien Act, note 41, s 22(1).

[108] Working Paper on Liens for Logging Work, note 91, 23-24; ALRI Report on Liens, note 41, 76.

[109] ALRI Report on Liens, note 41, 80.

[110] Buchanan, note 2, paras 60-63.

[111] Forestry Lien Act, note 1, s 6(1)

[112] ALRI Report on Liens, note 41, 61.

[113] Repair and Storage Liens Act RSO 1990 c R25 [“RSLA”]

[114] Miners Lien Act, note 87, s 4.

[115] See Buchanan, note 2, paras 65-70.

[116] ALRI Report on Liens, note 41, 86-87.

[117] The time limit under the both the Miners Lien Act (Miners Lien Act, note 41, s 6) and the Construction Lien Act (Construction Lien Act, note 41, s 31) is 45 days.

[118] There may be a case for allowing a lien to be filed before a debtor is in default, but effectively requiring such pre-emptive filings is absurd.

[119] See chapter V(B)(1) of this paper.

[120] Personal Property Security Act RSO 1990 c P10, s 30 [“PPSA”].

[121] See PPSA, note 120, ss 22 to 27.

[122] RSLA, note 113, s 10(1).

[123] From discussions with the BC Ministry of Forests, Lands and Natural Resource Operations, the LCO understands that Part 1 of the FSPP Act, which deals with security for logging contractors and subcontractors, will come into force as soon as regulations setting out the mechanics of registration are drafted.  The security given under part 1 is relatively low ranking, meaning that contractors may not be fully paid in the event of insolvency on the part of a licence holder. To counterbalance the low ranking of the security provided by part 1, part 2 of the FSPP Act sets up a compensation fund for logging contractors who may be affected by a licence holder insolvency.  This fund is discussed further below in Chapter V(E) of this paper.

[124] The scheme of distribution for the property of the bankrupt is set out in s 137 of the BIA, note 101, subject to various ‘superpriorities’ such as that for wages under s 81.3.

[125] See chapter III(C)(1) of this paper.

[126] RSLA, note 113, s 7(5).

[127] RSLA, note 113, s 7(6).

[128] Forestry Lien Act, note 1, Forms 1 and 2.

[129] FSPP Act Proclamation, 29 March 2012 (2012) BC Gaz II 133.

[130] BC Reg 64/2012, s 2.

[131] British Columbia Debates of the Legislative Assembly (Hansard) 39th Parl, 2nd Sess, Vol 18 No 6 (25 May 2010) 5690 (Hon Patrick Bell).

[132] British Columbia Debates of the Legislative Assembly (Hansard) 39th Parl, 2nd Sess, Vol 18 No 6 (25 May 2010) 5690 (Hon Patrick Bell).

[133] See discussion above in chapter III(C)(2) of this paper.

[134] See Buchanan Forest Products Ltd (Re), 2010 ONSC 2378 (CanLII) at paras 7-10 <http://canlii.ca/t/29db6> retrieved on 2012-07-17.

[135] Forestry Lien Act, note 1, s 25(4).

[136] Forestry Lien Act, note 1, s 2.

[137] See Division of Ontario into Geographic Areas, O Reg 180/03, Schedule 2

[138] Ontario, Legislative Assembly, Newspaper Hansard, 7th Parl, 2nd Sess, (3 April 1891).

[139] Ontario, Legislative Assembly, Newspaper Hansard, 8th Parl, 2nd Sess, (28 Feb 1896) (J H Carnegie).

[140] Ontario, Legislative Assembly, Newspaper Hansard, 7th Parl, 2nd Sess, (3 April 1891) (Hon A S Hardy).

[141] Ontario, Legislative Assembly, Newspaper Hansard, 7th Parl, 2nd Sess, (3 April 1891) (Hon A S Hardy).

[142] Lakes and Rivers Improvement Act RSO c L3 s 24.

 

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