Roy and Attorney-General of Alberta v. Plourde

J.-The question which we are asked to decide here is whether or not an amendment to The Judicature Act of Alberta is within the powers of the Legislature. The

Act in question provides:

ing of this Act, the time to be fixed for redemption by the order nisi in the case of a mortgage or by the order for specific performance in the AT cs of an agreement for sale shall be one year from the date of the granting of the order;

Provided, however, that in any action coming under the provisions ef clauses (i) or (ii) of this paragraph the judge may on application P-D decrease or extend the said period of redemption having regard to the Hudson J. following circumstances:

(a) in case the action is in respect of a security on farm lands, the ability of the debtor to pay, the value of the land including the improvements made thereon, the nature, extent and value of the security held by the creditor, and whether the failure to pay was due to hail, frost, drought, agricultural pests or other conditions beyond the control of the debtor;

(b) in case the action is in respect of a security on urban lands, the ability of the debtor to pay, the value of the land including the improvements made thereon, the nature, extent and value of the security held by the creditor, the earning capacity of the debtor, and whether the debtor's failure to pay was due to temporary or permanent unemployment, or other conditions beyond the control of the debtor.

(iii) Nothing contained in this paragraph shall apply to,- (a) any action in which a permit is not or was not required pursuant to the provisions of The Debt Adjustment Act, 1937; or

(b) any action authorized by a permit granted by the Debt Adjustment Board; or

(c) any action in which the consent of the debtor has been obtained. Section 2, standing by itself (excluding clause iii), is a normal exercise of provincial legislative power.

It concerns property and civil rights within the province and procedure in civil courts relating thereto.

The objection is that the Act as a whole is colourable and its real purpose is to give indirectly some effect to the Debt Adjustment Act, which has been held ultra vires. This objection was sustained by a majority of the Court of Appeal.

With respect, I cannot say that this objection can be sustained.

Clause (iii), which is the objectionable clause, gives creditors the benefit of provisions of an Act which would shorten the prescribed time for redemption and, in any event, this clause is severable and, as the Debt Adjustment Act has finally been held ultra vires, can have no effect whatever.

Having arrived at this conclusion, the appeal must be allowed and, in order to enable the courts in Alberta to work out the consequences of this view, the order of the court below should be so amended so as to provide a new