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Dear Lionel and all,

I have had a chance to examine the judgment and wondered what would be wrong with the following analysis:

1) Although there was no completed sale (in the technical sense) there was an agreement whereby the dealer transferred ownership and use of the truck to the bankrupt in return for a promise by the bankrupt to sign financing agreements should he be approved (the conditional sales contract) or barring that to return the truck.

2) From this it follows that there could be no registration under the PPSA because no security interest was retained to secure return of the truck (title had been given and no conditional sales contract had been entered). (though perhaps I am missing something).

3) Since registration was impossible and given that this is a standard contractual/ personal obligation, the dealer can have no interest over the trustee.

4) Likewise, there cannot be an UE claim leading to a constructive Trust because there has not been an unjust enrichment -- this agreement is a juristic reason for the loss. In any event, one could say that by necessary implication the dealer willingly took the risk that the personal obligation of return would not be performed before an assignment in bankruptcy.

In this sense, the dissent seems closer to the correct result than the majority.

Jason

Jason Neyers
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435