IUPAT v. S&S Glass, (2004) 185 O.A.C. 38 (CA)

• Jurisdiction: Ontario
• Court: Court of Appeal (Ontario)
• Judge: Doherty, Laskin and Gillese, JJ.A.
• Citation: (2004), 185 O.A.C. 38 (CA)
• Date: 13 February 2004

IUPAT v. S&S Glass (2004), 185 O.A.C. 38 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. MR.121

The International Union of Painters and Allied Trades, Local 200 (creditor/respondent) v. S & S Glass and Aluminum (1993) Ltd., S & S Glass and Renovators, Paul Skov, S. & S. Glass (2000) Inc. (Debtors) and Seaway Glass & Aluminum Ltd. (garnishee/appellant)

(C40687)

Indexed As: International Union of Painters and Allied Trades, Local 200 v. S & S Glass and Aluminum (1993) Ltd. et al.

Ontario Court of Appeal

Doherty, Laskin and Gillese, JJ.A.

March 30, 2004.

Summary:

Skov carried on business under various names, including S & S Glass and Aluminum (1993) Ltd., Paul Skov c.o.b. as S & S Glass & Renovators and S & S Glass (2000) Inc. The Ontario Labour Relations Board ordered S & S Glass and Aluminum (1993) Ltd. and later Paul Skov c.o.b. as S & S Glass & Renovators to pay damages to the International Union of Painters and Allied Trades, Local 200. Local 200 served Seaway Glass and Aluminum Ltd. with two notices of garnishment. The first notice listed the debtor as Paul Skov c.o.b. as S & S Glass & Renovators. Seaway continued to make payments to S & S Glass (2000) Inc., which had been newly incorporated by Skov.

The Ontario Superior Court, in a decision reported at [2003] O.T.C. 841, found that Seaway knew, when it made the payments, that it was paying the debtor to whom the garnishment applied. The court made an order under rule 60.08(16) that Seaway pay to the Sheriff the amounts that it had paid to the debtor, up to the amount claimed in the second garnishment notice. Seaway appealed.

The Ontario Court of Appeal dismissed the appeal.

Creditors and Debtors - Topic 4391

Garnishment by creditor - Payment by garnishee into court or to sheriff - Power of court - [See Creditors and Debtors - Topic 4392 ].

Creditors and Debtors - Topic 4392

Garnishment by creditor - Payment by garnishee into court or to sheriff - Default by garnishee - Creditor's remedies - Skov carried on business under various names, including S & S Glass and Aluminum (1993) Ltd., Paul Skov c.o.b. as S & S Glass & Renovators and S & S Glass (2000) Inc. - The Ontario Labour Relations Board ordered S & S Glass and Aluminum (1993) Ltd. and later Paul Skov c.o.b. as S & S Glass & Renovators to pay damages to the International Union of Painters and Allied Trades, Local 200 - Local 200 served Seaway Glass and Aluminum Ltd. with two notices of garnishment - The first notice listed the debtor as Paul Skov c.o.b. as S & S Glass & Renovators - Seaway continued to make payments to S & S Glass (2000) Inc., which had been newly incorporated by Skov - A motions judge found that Seaway knew, when it made the payments, that it was paying the debtor to whom the garnishment applied - The motions judge made an order under rule 60.08(16) that Seaway pay to the Sheriff the amounts that it had paid to the debtor, up to the amount claimed in the second garnishment notice - Seaway appealed - The Ontario Court of Appeal dismissed the appeal - On a plain reading of rule 60.08(16), the motions judge had the power, when determining Seaway's "rights and liabilities", to look at the realities of the relationship of the various Skov companies as those realities were known to Seaway.

Cases Noticed:

20 Toronto Street Holdings Ltd. v. Coffee, Tea or Me Bakeries Inc. et al., [2001] O.T.C. 119; 53 O.R.(3d) 360 (Sup. Ct.), refd to. [para. 20].

Cina v. Ultratech Tool & Gauge Inc. et al., [2001] O.T.C. 801; 56 O.R.(3d) 338 (Sup. Ct.), refd to. [para. 25].

Hongkong Bank of Canada v. Slesers (1992), 7 O.R.(3d) 117 (Gen. Div.), refd to. [para. 27].

Toronto (Metropolitan) v. O'Brien, [1995] O.J. No. 4896 (Gen. Div.), refd to. [para. 27].

Bottan et al. v. Vroom et al., [2002] O.A.C. Uned. 91 (C.A.), refd to. [para. 29].

Statutes Noticed:

Rules of Civil procedure (Ont.), rule 60.08(16) [para. 16].

Counsel:

Ian H. Fraser, for the appellant;

James G. Cameron, for the respondent.

This appeal was heard on February 13, 2004, before Doherty, Laskin and Gillese, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Gillese, J.A., and was released on March 30, 2004.