Conexus Credit Union v. SHEC Labs - Solar Hydrogen Energy Corp., 2005 SKCA 119

• Judge: Bayda, C.J.S., Lane and Richards, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 22, 2005
• Jurisdiction: Saskatchewan
• Citations: 2005 SKCA 119;(2005), 275 Sask.R. 91 (CA)

Conexus Credit v. SHEC Labs (2005), 275 Sask.R. 91 (CA);

    365 W.A.C. 91

MLB headnote and full text

Temp. Cite: [2006] Sask.R. TBEd. MR.001

Conexus Credit Union (plaintiff/appellant) v. SHEC Labs – Solar Hydrogen Energy Corporation (defendant/respondent)

(No. 968; 2005 SKCA 119)

Indexed As: Conexus Credit Union v. SHEC Labs - Solar Hydrogen Energy Corp.

Saskatchewan Court of Appeal

Bayda, C.J.S., Lane and Richards, JJ.A.

June 22, 2005.

Summary:

The defendant applied to set aside a pre-judgment garnishee summons issued by the plaintiff. The defendant argued that the plaintiff's affidavit filed in support of the garnishee summons did not comply with the provisions of s. 3 of the Attachment of Debts Act.

The Saskatchewan Court of Queen's Bench, in a decision reported at 250 Sask.R. 104, set aside the garnishee summons on the basis that the material filed in support of the garnishee summons did not comply with s. 3 of the Act. The plaintiff appealed.

The Saskatchewan Court of Appeal allowed the appeal and set aside the order of the court below.

Creditors and Debtors - Topic 4213

Garnishment by creditor - Application - Affidavit - Statutory requirements - The plaintiff sued the defendant on a guarantee - A chambers judge set aside a prejudgment garnishee summons issued by the plaintiff - The chambers judge held that the affidavit filed in support of the garnishee summons did not comply with s. 3 of the Attachment of Debts Act where there was no evidence that the plaintiff had declared the principal debtor to be in default, there was no evidence setting forth the terms of the guarantee and there was no evidence that a demand for payment had been made in accordance with the terms of the guarantee - The Saskatchewan Court of Appeal allowed an appeal, holding that the chambers judge erred in requiring such evidence - The critical question was not whether the plaintiff outlined the constituent parts of its claim, but whether the nature of the claim as outlined was sufficient to establish that the plaintiff's action was "an action for debt or liquidated demand" - The plaintiff's affidavit clearly established that its action was an action for a debt or liquidated demand.

Creditors and Debtors - Topic 4214

Garnishment by creditor - Application - Affidavit - Contents - [See Creditors and Debtors - Topic 4213 ].

Cases Noticed:

Royal Bank of Canada v. G.L.B. Holdings Ltd. et al. (1998), 171 Sask.R. 139 (Q.B.), consd. [para. 20].

Canadian Imperial Bank of Commerce v. Grotsky et al. (1994), 120 Sask.R. 305; 85 W.A.C. 305 (C.A.), refd to. [para. 20].

Bank of Nova Scotia v. McDonald et al. (1984), 37 Sask.R. 308 (Q.B.), refd to. [para. 21].

Mumford Medland Ltd. v. Certified Concrete (Central) Ltd. and Royal Bank of Canada (1967), 59 W.W.R.(N.S.) 378 (Sask. C.A.), refd to. [para. 26].

Statutes Noticed:

Attachment of Debts Act, R.S.S. 1978, c. A-32, sect. 3 [para. 4].

Counsel:

Wayne L. Pederson, for the appellant;

William P. Langen, for the respondent.

This appeal was heard on June 22, 2005, before Bayda, C.J.S., Lane and Richards, JJ.A., of the Saskatchewan Court of Appeal. The decision of the Court of Appeal was rendered orally on June 22, 2005, and the following written reasons were delivered by Bayda, C.J.S., on October 12, 2005.