Waxman v. Waxman et al., (2006) 216 O.A.C. 379 (CA)

• Judge: MacPherson, Armstrong and LaForme, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 06, 2006
• Jurisdiction: Ontario
• Citations: (2006), 216 O.A.C. 379 (CA)

Waxman v. Waxman (2006), 216 O.A.C. 379 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. OC.069

Morris J. Waxman (applicant/respondent) v. Chester Waxman , Robert Waxman, Gary Waxman, Warren Waxman, Lightning Distribution Inc., CHW Holdings Inc., Gawix Financial Corporation, Waxtek Metals Inc., I. Waxman & Sons Limited and Chester Waxman, Wayne Linton and Gary Waxman in their capacities as Trustees of the Chester Waxman Family Trust (respondents/appellants)

(C44827)

Indexed As: Waxman v. Waxman et al.

Ontario Court of Appeal

MacPherson, Armstrong and LaForme, JJ.A.

October 25, 2006.

Summary:

This matter arose in the context of multiple and complex litigation between two brothers (Morris and Chester) over ownership of a family business. An order was issued freezing all of the assets of Chester and his two sons, except for $100,000 per month which was to be paid out for their employment. Chester and his sons were also allowed to use the frozen funds to pay legal fees. SWR., a company controlled by Morris's sons, obtained notices of garnishment respecting the frozen bank accounts. Chester moved to vacate the notices.

The Ontario Superior Court, in a decision reported [2005] O.T.C. Uned. C05, refused to fully vacate or declare void ab initio the notices of garnishment. Chester appealed.

The Ontario Court of Appeal, Armstrong, J.A., dissenting, dismissed the appeal.

Creditors and Debtors - Topic 4545

Garnishment by creditor - Bars - Abuse of process - This matter arose in the context of multiple and complex litigation between two brothers (Morris and Chester) and their families over ownership of a family business - An order was issued freezing all of the assets of Chester and his two sons, except for $100,000 per month which was to be paid out for their employment, plus the funds could be used to pay legal fees - SWR., a company controlled by Morris's sons, obtained notices of garnishment respecting the frozen bank accounts - Chester moved to vacate the notices - SWR argued that there was nothing in the freezing orders which prohibited the issuance of the notices of garnishment and that they were perfectly entitled to proceed with them - A motions judge refused to fully vacate or declare void ab initio the notices of garnishment - Chester appealed, arguing that the garnishments amounted to an abuse of process and effectively amounted to a variation of the freezing orders - The Ontario Court of Appeal dismissed the appeal, holding that the garnishment orders were a proper exercise of judicial discretion and the action taken by SWR with Morris's consent was not an abuse of process - See paragraphs 34 to 47.

Creditors and Debtors - Topic 4606

Garnishment by creditor - Practice - Setting aside - [See Creditors and Debtors - Topic 4545 ].

Cases Noticed:

International Union of Painters and Allied Trades, Local 200 v. S & S Glass and Aluminum (1993) Ltd. et al. (2004), 185 O.A.C. 38; 47 C.P.C.(5th) 266 (C.A.), refd to. [paras. 22, 38].

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. 37].

Statutes Noticed:

Rules of Civil Procedure (Ont.), rule 60.08(16) [para. 21].

Counsel:

Richard B. Swan and Gideon C. Forrest, for Morris Waxman and Solid Waste Reclamation Inc.;

Edward Babin and Lorne Silver, for Chester Waxman.

This appeal was heard on October 6, 2006, before MacPherson, Armstrong and LaForme, JJ.A., of the Ontario Court of Appeal. The decision of the court was released on October 25, 2006, when the following opinions were filed:

Armstrong, J.A., dissenting - see paragraphs 1 to 27;

LaForme, J.A. (MacPherson, J.A., concurring) - see paragraphs 28 to 47.