Ross v. HVLD Systems (1997) Ltd., (1999) 172 Sask.R. 261 (CA)

• Judge: Vancise, Wakeling and Jackson, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: January 18, 1999
• Jurisdiction: Saskatchewan
• Citations: (1999), 172 Sask.R. 261 (CA)

Ross v. HVLD Systems Ltd. (1999), 172 Sask.R. 261 (CA);

   185 W.A.C. 261

MLB headnote and full text

Temp. Cite: [1999] Sask.R. TBEd. MR.005

Calvin Ross (appellant/plaintiff) v. HVLD Systems (1997) Ltd. (respondent/defendant)

(Docket No. 3150)

Indexed As: Ross v. HVLD Systems (1997) Ltd.

Saskatchewan Court of Appeal

Vancise, Wakeling and Jackson, JJ.A.

January 18, 1999.

Summary:

The plaintiff sued the defendant in tort and for money had and received. A prejudg­ment garnishee summons was issued on the plain­tiff's behalf and money was paid into court. The defendant applied to strike out the garnishee summons.

The Saskatchewan Court of Queen's Bench, without written reasons, set aside the garnishee summons. The plaintiff appealed.

The Saskatchewan Court of Queen's Bench allowed the appeal.

Creditors and Debtors - Topic 4213

Garnishment by creditor - Application - Affidavit - Statutory require­ments - The plaintiff had to pay $28,401 on a guarantee when the defendant defaulted on a loan - The plain­tiff sued the defendant for negli­gent mis­representa­tion but waived the tort claiming the $28,401 - The plaintiff also claimed the $28,401 as money had and re­ceived - A prejudgment garnishee sum­mons was issued on the plaintiff's behalf and money was paid into court - The defendant applied to strike out the gar­nishee sum­mons, arguing that the nature of the claim did not show an action for debt or liqui­dated demand and that the factual founda­tion depicted by the affidavit filed to obtain the summons did not meet the requirements of s. 3 of the Attachment of Debts Act - The Saskatchewan Court of Appeal held that the garnishee summons must be permitted to take effect.

Creditors and Debtors - Topic 4501

Garnishment by creditor - When available - "Action for liquidated demand" defined - [See Creditors and Debtors - Topic 4213 ].

Restitution - Topic 128

Unjust enrichment - Remedies - Waiver of tort - The Saskatchewan Court of Appeal discussed the concept of "waiver of tort" - The court stated that "waiver of tort" is a means by which a party can claim a specified amount as compensation for certain wrongful acts instead of pursu­ing a claim for damages - See paragraph 9.

Cases Noticed:

Alm v. Tyrone Hotels (1963), 42 W.W.R.(N.S.) 297 (Sask. Q.B.), refd to. [para. 5].

Canadian Imperial Bank of Commerce v. Grotsky et al. (1994), 120 Sask.R. 305; 68 W.A.C. 305 (C.A.), refd to. [para. 5].

Halifax Fire Ins. Co. v. McGilvray, [1939] 3 W.W.R. 542 (Alta. S.C.), refd to. [para. 10].

Larue v. Larue (1977), 2 A.R. 446 (T.D.), refd to. [para. 10].

Crown Tire Service Ltd. v. Kletzel et al. (1981), 20 C.P.C. 67 (Q.B. Master), refd to. [para. 10].

Coast Paper v. Craft Litho and Hartshorn (1990), 83 Sask.R. 288 (C.A.), refd to. [para. 11].

Reed Ford Tractor v. Todorowich (1994), 128 Sask.R. 90; 85 W.A.C. 90 (C.A.), refd to. [para. 11].

Statutes Noticed:

Attachment of Debts Act, R.S.S. 1978, c. A-32, sect. 3(1), sect. 3(2) [para. 4].

Authors and Works Noticed:

Dunlop, Creditor-Debtor Law in Canada, (2nd Ed.), pp. 14 [para. 5]; 136, 137 [para. 15]; 139, 140 [para. 12]; 142 [para. 11].

Fridman, Restitution (2nd Ed. 1992), pp. 355, 356 [para. 9].

Counsel:

F.W. Johnson, Q.C., for the appellant;

A.G. McIntrye, for the respondent.

This appeal was heard on January 18, 1999, before Vancise, Wakeling and Jack­son, JJ.A., of the Saskatchewan Court of Appeal. The following decision was delivered orally for the court, by Jackson, J.A., on January 18, 1999, followed by written rea­sons on February 8, 1999.