Bank of Montreal v. Barton et al.,

• Jurisdiction: Saskatchewan
• Judge: Gerein
• Neutral Citation: 2004 SKQB 408
• Citation: 2004 SKQB 408,(2004), 268 Sask.R. 193 (QB),268 SaskR 193,(2004), 268 SaskR 193 (QB),268 Sask.R. 193
• Date: 15 October 2004
• Court: Court of Queen's Bench of Saskatchewan (Canada)

Bk. of Mtrl. v. Barton (2004), 268 Sask.R. 193 (QB)

MLB headnote and full text

Temp. Cite: [2004] Sask.R. TBEd. OC.045

Bank of Montreal (plaintiff) v. Fay Barton, also known as Fay Mary Bardon (defendant) and Royal Bank of Canada, Outlook, Saskatchewan (garnishee)

(2004 Q.B.G. No. 788; 2004 SKQB 408)

Indexed As: Bank of Montreal v. Barton et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Gerein, C.J.Q.B.

October 14, 2004.

Summary:

The defendant applied to set aside a garnishee summons issued against her. She argued that the affidavit in support of the summons was deficient in that (1) it did not establish the existence of a debt, and (2) it did not contain sufficient facts to render "readily reducible to a certainty" the amount of any debt.

The Saskatchewan Court of Queen's Bench dismissed the application.

Contracts - Topic 1163

Formation of contract - Privity of contract - Requirement of existence of - [See Creditors and Debtors - Topic 4266 ].

Creditors and Debtors - Topic 4266

Garnishment by creditor - Debt due or accruing due - What constitutes - A bank lent money to a bison feeder co-operative to enable it to purchase bison and resell them to growers - As security, the co-operative gave a general assignment of book debts to the bank (GABD) - In the present case, a grower agreed to indemnify the co-operative in respect of the co-operative's debt to the bank - The co-operative defaulted - The bank issued a garnishee summons against her - The Saskatchewan Court of Queen's Bench upheld the summons where the grower's indemnity obligation constituted a debt under the Attachment of Debts Act (Sask.) since it had been assigned to the bank under the GABD and was directly owing to the bank - The bank stood in the place of the co-operative - There was no requirement for privity.

Cases Noticed:

Rolls-Royce Canada Ltd. v. La Ronge Aviation Services Ltd., [1996] 7 W.W.R. 697; 143 Sask.R. 296 (Q.B.), consd. [para. 9].

Ross v. HVLD Systems (1997) Ltd. (1999), 172 Sask.R. 261; 185 W.A.C. 261; 170 D.L.R.(4th) 600 (C.A.), refd to. [para. 9].

Agnes & Jennie Mining Co. v. Zen and A.J.M. Vieri Gold & Silver Refining Corp., [1982] 6 W.W.R. 59 (B.C.C.A.), dist. [para. 12].

Canadian Imperial Bank of Commerce v. Grotsky et al. (1994), 120 Sask.R. 305; 68 W.A.C. 305 (C.A.), consd. [para. 17].

Statutes Noticed:

Attachment of Debts Act, R.S.S. 1978, c. A-32, sect. 3 [para. 8].

Authors and Works Noticed:

Dunlop, Charles Richard Bentley, Creditor-Debtor Law in Canada (2nd Ed. 1995), pp. 11, 14, 16 [para. 17].

Counsel:

D.G. Gerecke, for the plaintiff;

W.D. Preston, for the defendant.

Gerein, C.J.Q.B., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, heard this application and delivered the following decision on October 15, 2004.