Forestry Workers Lien for Wages Act, R.S.O. 1990, c. F.28

Forestry Workers Lien for Wages Act

R.S.O. 1990, CHAPTER F.28

Historical version for the period December 31, 1990 to June 21, 2006.

No Amendments.

Definitions

1. In this Act,

“labour” means cutting, skidding, felling, hauling, scaling, banking, driving, running, rafting or booming any logs or timber, and includes any work done by cooks, blacksmiths, artisans and others usually employed in connection therewith; (“travail”)

“logs or timber” means logs, cordwood, timber, cedar posts, telegraph poles, railroad ties, tan bark, pulpwood, shingle bolts, and staves, or any of them. (“billes ou bois d’oeuvre”) R.S.O. 1990, c. F.28, s. 1.

Application of Act

2. This Act applies only to the County of Haliburton and to the territorial districts. R.S.O. 1990, c. F.28, s. 2.

Lien for labour on logs or timber

3. (1) A person performing labour has a lien upon the logs or timber in connection with which the labour is performed for the amount due for such labour, and the lien has precedence over all other claims or liens thereon, except a claim or lien of the Crown for any dues or charges or that a timber slide company or any owner of a slide or boom may have thereon for tolls. R.S.O. 1990, c. F.28, s. 3 (1).

Contractors, with respect to labour or services to be performed on timber

(2) A contractor who has entered into any agreement under the terms of which the contractor personally or by others in the contractor’s employ have cut, removed, taken out or driven logs or timber, shall be deemed to be a person performing labour upon logs or timber within the meaning of this section, and such cutting, removal, taking out and driving shall be deemed to be the performance of labour within the meaning of this section. R.S.O. 1990, c. F.28, s. 3 (2).

Lien to cease unless proceeding commenced

4. The lien ceases unless the claim therefor is filed and a proceeding is commenced to enforce the claim as hereinafter provided. R.S.O. 1990, c. F.28, s. 4.

Claim of lien to be filed

5. (1) The person claiming the lien shall state the claim in writing in Form 1 in English or in French, setting out briefly the nature of the claim, the amount claimed to be due and a description of the logs or timber upon which the lien is claimed. R.S.O. 1990, c. F.28, s. 5 (1).

Verified by affidavit

(2) The claim shall be verified by the affidavit in Form 2 in English or in French of the claimant or the solicitor or agent of the claimant. R.S.O. 1990, c. F.28, s. 5 (2).

Time for filing claim, contractors

(3) In the case of a contractor coming within subsection 3 (2), the claim and affidavit shall be filed on or before the 1st day of September next following the performance of the labour. R.S.O. 1990, c. F.28, s. 5 (3).

Wage-earners

(4) In other cases, if the labour was performed between the 1st day of October and the 1st day of April next thereafter, the claim shall be filed on or before the 30th day of the same month of April, but if the labour was performed on or after the 1st day of April and before the 1st day of October in any year the claim shall be filed within thirty days after the last day on which such labour or any part thereof was performed. R.S.O. 1990, c. F.28, s. 5 (4).

Place for filing claim

6. (1) The claim and affidavit shall be filed in the office of the Ontario Court (General Division) for the area in which the labour or some part thereof was performed. R.S.O. 1990, c. F.28, s. 6 (1).

Where labour performed in certain localities

(2) Where the labour was performed upon logs or timber got out to be run down or that have been run down any of the rivers or streams flowing into Georgian Bay, Lake Huron, Lake Superior, Lake of the Woods, Rainy Lake, Rainy River or Pigeon River, the claim may, at the option of the claimant, be filed in the office of the Ontario Court (General Division) for the area in which the labour was performed or in the office of the Ontario Court (General Division) for the area in which the drive terminates or reaches the waters of such bay, lake or river. R.S.O. 1990, c. F.28, s. 6 (2).

Sale not to affect lien

7. No sale or transfer of the logs or timber during the time limited for the filing of the claim and previous to the filing thereof, or after the filing thereof and during the time limited for the enforcement thereof, affects the lien, but the lien remains in force against the logs or timber in whosesoever possession the logs or timber are found. R.S.O. 1990, c. F.28, s. 7.

Enforcement of liens by action

8. (1) Any person having a lien upon logs or timber may enforce the lien by an action, where the claim does not exceed the monetary jurisdiction of the Small Claims Court, in the Small Claims Court or, where the claim exceeds the monetary jurisdiction of the Small Claims Court, in the Ontario Court (General Division), and the action may be commenced to enforce the lien, if the claim is then payable, immediately after the filing of the claim, or, if credit has been given, immediately after the expiry of the period of credit, and the lien shall cease unless the action to enforce it is commenced within thirty days after the filing of the claim or after the expiry of the period of credit. R.S.O. 1990, c. F.28, s. 8 (1).

Defendant

(2) In all such actions, the person liable for the payment of the claim shall be made the party defendant. R.S.O. 1990, c. F.28, s. 8 (2).

On whom originating process to be served

(3) Where the defendant is not the owner of the logs, a copy of the originating process shall be served on the owner as well as the defendant, or the person or agent in whose possession, custody or control they may be found, or the person in charge of the operations in respect of which the claim of lien arose. R.S.O. 1990, c. F.28, s. 8 (3).

Owner may be made defendant

(4) The owner may, on motion by the owner or by direction of the judge, be made a party defendant. R.S.O. 1990, c. F.28, s. 8 (4).

Procedure

9. (1) There shall be attached to or endorsed upon the originating process a copy of the claim filed under section 6, and no pleading or notice of dispute or defence other than such as is required in a proceeding in the Small Claims Court is necessary whether the action is brought in the Ontario Court (General Division) or in the Small Claims Court. R.S.O. 1990, c. F.28, s. 9 (1).

Where no defence filed

(2) Where no dispute or defence is filed, judgment may be signed and execution issued. R.S.O. 1990, c. F.28, s. 9 (2).

Form of originating process and practice

(3) The originating process shall be in the form, as nearly as may be, of that in use in the court in which it is issued, but the practice thereafter shall follow as nearly as may be that of the Small Claims Court. R.S.O. 1990, c. F.28, s. 9 (3).

Form of judgment

(4) The judgment shall declare that the judgment is for wages, the amount thereof and costs, and that the plaintiff has a lien therefor on the property described when such is the case. R.S.O. 1990, c. F.28, s. 9 (4).

Procedure subsequent to execution in certain cases

10. Where an execution has been placed in the hands of a sheriff or bailiff for execution and no attachment has been issued, the enforcement of the lien shall be by sale under the execution, and the procedure relating to proof of other claims and the payment of money into court and the distribution of the money and otherwise shall, as far as practicable, be the same as is hereinafter provided upon and subsequent to an attachment. R.S.O. 1990, c. F.28, s. 10.

Procedure attachment in first instance

11. (1) Where an attachment issues in the first instance, the originating process and the procedure to judgment shall be the same as where an action has been begun. R.S.O. 1990, c. F.28, s. 11 (1).

Where attachment after action

(2) Where an attachment issues after an action has been commenced, the action shall be carried to judgment, subject to the provisions of this Act relating to the attachment. R.S.O. 1990, c. F.28, s. 11 (2).

Summary disposal of cases

12. (1) The judge may direct that proceedings under this Act shall be disposed of summarily without waiting for the regular sittings of the court, upon such terms as to notice and otherwise as the judge considers proper, and the proceedings may be so disposed of. R.S.O. 1990, c. F.28, s. 12 (1).

Powers of judge

(2) The judge may set aside an attachment or seizure or direct the release of logs or timber that have been seized on such terms as the judge considers proper. R.S.O. 1990, c. F.28, s. 12 (2).

When attachment to issue from Small Claims Court

13. Where the amount of the claim does not exceed the monetary jurisdiction of the Small Claims Court and is not less than $10, upon the production and filing of a copy of the claim and affidavit under section 5 and an affidavit of the claimant verifying the claim and showing that the claim has been filed and stating,

(a) that the claimant has good reason to believe and does believe that the logs or timber are about to be removed out of Ontario; or

(b) that the person indebted has absconded from Ontario with intent to defraud or defeat creditors; or

(c) that the claimant has good reason to believe and does believe that the person indebted is selling or otherwise disposing of the logs or timber, or is about to do so, with intent to defraud or defeat creditors; or

(d) that the logs or timber are about to be cut into lumber or other timber so that the logs or timber cannot be identified; and

(e) that the claimant is in danger of losing the claim if attachment does not issue,

and, if affidavits of two persons corroborating the affidavit of the plaintiff in respect of clause (a), (b), (c) or (d) are also filed, the clerk of the Small Claims Court shall issue a warrant, directed to the bailiff of the Small Claims Court commanding such bailiff to attach, seize, take and safely keep such logs or timber or a sufficient part thereof to satisfy the amount claimed and the costs of the action and the costs of enforcing the lien, and to return the warrant forthwith to the court. R.S.O. 1990, c. F.28, s. 13.

When attachment to issue out of Ontario Court (General Division)

14. (1) Where the amount claimed exceeds the monetary jurisdiction of the Small Claims Court, upon the filing of a copy of the claim and affidavit under section 5, the local registrar of the Ontario Court (General Division), upon the filing of an affidavit made by the claimant showing such facts as would authorize the issue of an attachment under section 13 and such affidavit in corroboration as is provided in section 13, shall issue a writ of attachment directed to the sheriff commanding the sheriff to attach, seize and take and safely keep the logs or timber or a sufficient part thereof to satisfy the amount claimed and the costs of the action and the costs of enforcing the lien. R.S.O. 1990, c. F.28, s. 14 (1).

Subsequent seizure

(2) Where additional claims are made or the amount of the claim is increased or a sufficient seizure has not been made, a second or subsequent seizure may be made either under the execution or attachment. R.S.O. 1990, c. F.28, s. 14 (2).

Warrant or writ to be served on defendant and the owner of logs

15. (1) The warrant or writ of attachment shall also, where no originating process has issued, summon the defendant to appear before the court out of which the attachment issued, and a copy of the writ of attachment shall be served upon the defendant, and, if the defendant is not the owner of the logs or timber described in the warrant or writ, a copy of the warrant or writ of attachment shall also be served upon the owner of the logs or timber or upon the person or agent in whose possession, custody or control they may be found. R.S.O. 1990, c. F.28, s. 15 (1).

When order allowing service necessary

(2) When a warrant or writ is served upon a person in possession, an order of the judge allowing the service is necessary. R.S.O. 1990, c. F.28, s. 15 (2).

Owner may be made a party

(3) The owner may, on motion by the owner or by direction of the judge, be made a party defendant. R.S.O. 1990, c. F.28, s. 15 (3).

When defendant or owner not in Ontario, etc.

(4) If the defendant or the owner cannot be found within Ontario or the owner cannot be ascertained, and no person is in possession of the logs or timber, the warrant or writ may be served in such manner as the judge may direct. R.S.O. 1990, c. F.28, s. 15 (4).

Admission of parties to make defence

(5) Even if a defence has not been entered, the judge may admit the defendant and the owner or either of them to make full defence upon such terms as the judge considers just. R.S.O. 1990, c. F.28, s. 15 (5).

Logs or timber in transit within district not to be detained

16. A sheriff or bailiff shall not seize or detain under a warrant or writ of attachment any logs or timber when in transit from the place where cut to the place of destination when such place of destination is within the county or district in which the proceedings were commenced, but if such logs or timber are so in transit, or are in the possession of any person for the purpose of being driven or sorted and delivered to the owner, or to satisfy any statutory lien, attachment of the logs or timber may be made by serving a copy of the warrant or writ upon the person in whose possession, custody or control they are, who shall from the time of such service hold the same, both on the person’s own behalf and for the sheriff or bailiff to the extent of the lien, until the logs or timber have reached their place of destination or are driven or sorted, as the case may be, and when they have reached their place of destination or are driven or sorted the sheriff or bailiff may receive the logs or timber from such person, and the statutory lien of such person is not released by the holding of the sheriff or bailiff. R.S.O. 1990, c. F.28, s. 16.

Separation of logs

17. The claimant or the plaintiff, and the sheriff or bailiff may, by leave of the judge, take any proceedings that the owner of any logs or timber may take under the Lakes and Rivers Improvement Act for the purpose of procuring the separation of any logs or timber so seized by the sheriff or bailiff under this Act from other logs or timber with which they have become intermixed, or a sale may be made without such separation if the judge so directs. R.S.O. 1990, c. F.28, s. 17.

Sheriff or bailiff to restore possession upon execution of bond

18. In case of an attachment, if the owner of the logs or timber or any person on his behalf executes and files with the clerk or local registrar who issued the attachment a good and sufficient bond to the person claiming the lien, executed by two sureties and approved by the clerk or local registrar conditioned for the payment of the claim and of all damages, costs, charges, disbursements and expenses that may be recovered by the claimant in such proceedings, together with the amount for which a lien is claimed in any other suit, the clerk or local registrar shall issue an order to the sheriff or bailiff having in charge the logs or timber directing their release, and upon service of such order upon the sheriff or bailiff the logs or timber shall be released. R.S.O. 1990, c. F.28, s. 18.

Notice of dispute

19. (1) Any person who has been served with a copy of the warrant or writ of attachment and who desires to dispute the claim shall, within fourteen days after such service, file with the court a notice that the claim is disputed in whole or in part. R.S.O. 1990, c. F.28, s. 19 (1).

If no notice of dispute entered judgment may be entered

(2) If no notice of dispute is entered, judgment may be entered as in the case of default, and the practice and procedure shall be the same as in an action begun by claim or statement of claim. R.S.O. 1990, c. F.28, s. 19 (2).

Persons served with attachment may pay amount claimed into court

20. (1) The defendant may, at any time before the sale of the logs or timber, pay into court the amount for which the lien is claimed, together with the amount for which a lien is claimed in any other proceeding, and also the costs of the proceedings to the date of such payment to be assessed by an assessment officer if required, and is thereupon entitled to a certificate vacating the liens. R.S.O. 1990, c. F.28, s. 20 (1).

Subsequent procedure

(2) Upon such certificate being filed with the clerk or local registrar, the liens are vacated and all further proceedings thereon shall cease, and the defendant is entitled to an order directing the delivery up of the logs or timber seized under the attachment, or the cancellation of any bond given under section 18. R.S.O. 1990, c. F.28, s. 20 (2).

Day for hearing to be fixed by advertisement

21. (1) After the expiration of the time within which a notice of dispute may be entered, the judge shall, on motion by the plaintiff, appoint a day upon which all persons claiming a lien on the logs or timber are to appear before the judge for the adjustment of their claims and the settlement of accounts. R.S.O. 1990, c. F.28, s. 21 (1).

Service of appointment and advertisement

(2) The appointment shall be served upon the defendants and upon the owner, if the judge so directs, and shall also, if the judge so directs, be published once a week for two weeks before the day appointed in a newspaper having a general circulation in the district in which proceedings are pending. R.S.O. 1990, c. F.28, s. 21 (2).

Notification of lien-holders and the Minister

(3) A copy of the appointment shall also be sent by registered mail to every claimant known to the plaintiff and to the Minister of Natural Resources at least two weeks before the day appointed, directed to the post office address of such claimant where it is known and if not known then to his latest known address. R.S.O. 1990, c. F.28, s. 21 (3).

Parties filing notices of disputes or claims to attend on day named in appointment

22. (1) Upon the day named in the appointment, the persons served with a copy thereof and all other persons claiming a lien on the logs or timber who have prior to that date filed with the local registrar a notice claiming a lien on the logs or timber and stating the nature and amount of their claims shall attend before the judge. R.S.O. 1990, c. F.28, s. 22 (1).

Proof of claims

(2) Where a claim is brought pursuant to the notice, it may be established by affidavit, but any person interested may cross-examine a deponent, and may require that the claim be established as in other cases. R.S.O. 1990, c. F.28, s. 22 (2).

Judge to hear all parties, take accounts, etc.

(3) The judge shall hear all parties and take all accounts necessary to determine the amounts due to the claimants, and shall assess costs and determine by whom the costs shall be paid, and settle priorities and generally determine all such matters as may be necessary for the adjustment of the rights of all parties. R.S.O. 1990, c. F.28, s. 22 (3).

Order to be made by judge at conclusion of inquiry

23. (1) At the conclusion of the inquiry, the judge shall make a report and order which shall state his or her findings and direct the payment into court within ten days thereafter of the amounts found due and the costs and, that in default of payment, the logs or timber will be sold by the sheriff or bailiff for the satisfaction thereof. R.S.O. 1990, c. F.28, s. 23 (1).

In default of payment into court logs or timber to be sold

(2) In default of payment into court within the time named in the order, the logs or timber shall, within twenty days thereafter, be sold by the sheriff or bailiff in the same manner and subject to the same provisions of law as goods seized or taken in execution, or after such additional publicity has been given to the sale as the judge may direct. R.S.O. 1990, c. F.28, s. 23 (2).

Application of proceeds of sale

(3) The amount realized by the sale shall, after deducting the expenses thereof and the fees and poundage of the sheriff or bailiff, be paid into court and shall be paid out by the clerk or local registrar to the parties entitled thereto under the order of the judge. R.S.O. 1990, c. F.28, s. 23 (3).

Judge to apportion

(4) Where the amount realized upon the sale is not sufficient to pay the claims and costs in full, the judge shall apportion the amount realized proportionately among the claimants. R.S.O. 1990, c. F.28, s. 23 (4).

Certificate of balance due after distribution to be entered as a judgment

(5) Where after sale and distribution any balance remains due to any person under the order of the judge, the clerk or local registrar shall, on requisition, give the person a certificate that such amount remains due, and such certificate may be entered as a judgment in the Ontario Court (General Division) or Small Claims Court, and execution may be issued thereupon. R.S.O. 1990, c. F.28, s. 23 (5).

Where nothing found due on inquiry, lien to be discharged

24. Where nothing is found due upon the several claims filed or upon the lien with respect to which proceedings have been taken, the judge may order that the lien be discharged and the logs or timber released or the security given therefor delivered up and cancelled, and may order payment of any costs that may be found due to the defendant or the owner of the logs or timber. R.S.O. 1990, c. F.28, s. 24.

Costs

25. (1) Where the assessed costs, exclusive of necessary disbursements, that are payable out of the amount realized for the satisfaction of the lien exceed 25 per cent of the amount realized, such costs, upon motion by any party, may be reduced by the judge so that the costs will not in the aggregate exceed 25 per cent, and no more costs than such reduced amount shall be recovered between party and party or solicitor and client. R.S.O. 1990, c. F.28, s. 25 (1).

Limit of, where claim not contested

(2) The costs in addition to actual and necessary disbursements that may be assessed to any claimant proving an uncontested claim shall not exceed $5 if a solicitor is employed, and where the amount claimed is within the jurisdiction of the Small Claims Court, shall not exceed $2 where a solicitor is employed. R.S.O. 1990, c. F.28, s. 25 (2).

Where claim contested

(3) In case of a contest where a solicitor is employed, the judge may allow such costs not exceeding in any case $10 when assessed in accordance with the tariff of the Ontario Court (General Division) or $5 when assessed in accordance with the tariff of the Small Claims Court, in addition to actual and necessary disbursements, but where the claim does not exceed $50 such costs shall not exceed $3. R.S.O. 1990, c. F.28, s. 25 (3).

Tariff

(4) Subject to the provisions of this section, the costs to be assessed shall, as far as possible, be according to the tariff of costs in force as to other proceedings in the court in which proceedings under this Act have been taken. R.S.O. 1990, c. F.28, s. 25 (4).

Disposition of balance after sale and satisfaction of liens

26. (1) Where money paid into court as the proceeds of the sale of logs or timber is more than sufficient to satisfy the claims that have been proved with interest and costs, the judge, upon the motion of any creditor within thirty days from the day fixed by the order for payment, shall order that such remaining money be paid over to the sheriff who shall hold and distribute the money as provided by the Creditors’ Relief Act in the case of money levied under execution, and all parties having claims may take the like proceedings as those provided by the Creditors’ Relief Act for proving claims and obtaining certificates or executions. R.S.O. 1990, c. F.28, s. 26 (1).

Order for payment

(2) If no such motion is made to the judge within such period of thirty days, the judge may order payment out of court of any remaining money to the person entitled thereto. R.S.O. 1990, c. F.28, s. 26 (2).

Dismissal of proceedings for want of prosecution

27. Any person affected by a proceeding taken under this Act may make a motion to the judge to dismiss the proceeding for want of prosecution, and the judge may make such order upon the motion as the judge considers just. R.S.O. 1990, c. F.28, s. 27.

Other remedies not affected

28. (1) Nothing in this Act deprives any person of any other remedy to which the person may be entitled for the recovery of any amount due in respect of labour performed upon or in connection with any logs or timber. R.S.O. 1990, c. F.28, s. 28 (1).

Where lien not established, judgment for amount found due

(2) Where an action is brought to enforce a lien but no lien is found to exist in respect of the claim, judgment may be given for any amount found due as in an ordinary action. R.S.O. 1990, c. F.28, s. 28 (2).

Any number of lienholders may join in proceedings

29. Any number of lienholders may join in taking proceedings under this Act, or may assign their claims to any one or more persons, but the claim to be filed under section 6 shall include particular statements of the several claims joined which shall be verified by the affidavits of the persons so joining, or separate claims may be filed and one originating process or attachment issued on behalf of all the persons so joining. R.S.O. 1990, c. F.28, s. 29.

Transfer of suit from Small Claims Court in case proceedings taken in Ontario Court (General Division)

30. Where a proceeding has been commenced in the Ontario Court (General Division) and a proceeding is brought or is thereafter pending in respect of the same logs or timber, or any part of them, in the Small Claims Court, the judge may order the proceeding in the Small Claims Court to be adjourned, and shall in his or her inquiry include the claims in respect of which the proceeding is pending in the Small Claims Court, and thereafter all persons who have filed claims in the Small Claims Court are entitled to prove their claims and to share in the benefit of the proceeding in the Ontario Court (General Division). R.S.O. 1990, c. F.28, s. 30.

Liability for loss occasioned by improper seizure

31. Any person who unlawfully and maliciously and without reasonable and probable cause takes or causes to be taken proceedings under this Act by which logs or timber are seized, detained or sold is liable therefor to any person aggrieved thereby, and is also liable for all loss and damage occasioned by such seizure by reason of such logs or timber breaking away or being scattered or lost, or otherwise. R.S.O. 1990, c. F.28, s. 31.

Illegal payments

32. (1) No payment of wages shall be made or offered to any person for any labour performed upon or in connection with any logs or timber by any cheque, order, I.O.U., bill of exchange, promissory note or other undertaking, other than a bank note or bill drawn upon or payable at or within any place out of Ontario. R.S.O. 1990, c. F.28, s. 32 (1).

Offence

(2) Every person who contravenes, or who directs or knowingly suffers the person’s agent or servant to contravene this section is guilty of an offence and on conviction is liable to a fine of not less than $5 and not more than $20. R.S.O. 1990, c. F.28, s. 32 (2).

Illegal payments not to be allowed as a defence in any action

33. No payment made or offered to be made in contravention of section 32 is a defence to an action or proceeding for the recovery of wages, or is receivable in evidence therein, nor does any such payment or offer of payment in any way affect any claim of lien for labour on logs or timber under this Act, but in case of the sale or transfer of any instrument mentioned in section 32, in whole or in part, by the payee the consideration received by the payee shall be treated as payment on account. R.S.O. 1990, c. F.28, s. 33.

FORM 1
CLAIM OF LIEN

R.S.O. 1990, c. F.28, Form 1.

FORM 2
AFFIDAVIT TO BE ATTACHED TO CLAIM

R.S.O. 1990, c. F.28, Form 2.

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