2001 SKQB 57 Q.B.G. A.D. 1999 No. 2259 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: DONALD THOMAS McDONALD and KENNETH HAROLD McDONALD, THREE BARS HOLDINGS LTD., and WESTERN AG MARKETING CENTRE LTD. DEFENDANTS Michael E. Tomka for Donald McDonald R. Bradley Hunter for Kenneth McDonald FIAT GUNN J. January 31, 2001 [1] Donald McDonald ("Donald") seeks an order pursuant to Rules 344 and 388 of The Queen\'s Bench Rules directing the manner in which monies paid into Court pursuant to garnishee summonses, together with other monies, should be distributed between the parties, Donald and Kenneth McDonald ("Kenneth"). In addition, Donald seeks an order amending the previous orders of Barclay J. on August 19, 1999 and Scheibel J. on December 22, 1999 to the extent necessary to give the relief requested. HISTORY OF THE PROCEEDINGS [2] The parties who are brothers, have been involved in dispute over the division of farming assets since July 30, 1999. pre-trial conference commenced December 22, 2000 and has been adjourned for continuation to February 2, 2001. [3] The following are the orders sought to be varied. [4] August 19, 1999 Barclay J. made the following order: IT IS HEREBY ORDERED: 1. Three Bars Holdings Ltd. shall pay salary to Donald Thomas McDonald the sum of $2,000.00 per month commencing September 1, 1999. The cheques shall [be] payable at month end subject to normal deductions for Canada Pension, income tax and any other statutory deduction required. 2. Three Bars Holdings Ltd. shall pay Kenneth Harold McDonald the sum of $2,000.00 per month commencing September 1, 1999. The cheques shall be payable at month end, subject to the normal deductions for Canada Pension, income tax and any other statutory deduction required. 3. Neither Donald Thomas McDonald nor Kenneth Harold McDonald shall draw any other moneys from the Pregnant Mare Urine operation, Three Bars Holdings Ltd., Western Ag Marketing Centre Ltd. or any other farm income except for the reimbursement of expenses incurred in the normal course of operation and properly receipted and accounted for. 4. No partnership or corporate assets shall be disposed of other than those disposed of in the normal course of the business for the partnership or for the corporation unless by written agreement of Donald Thomas McDionald [sic] or Kenneth Harold McDonald or court order. 5. Three Bars Holdings Ltd. shall continue to pay the normal utility payments of natural gas and electricity commencing September 1, 1999. 6. All revenues received by the Pregnant Mare Urine operation after September 1, 1999 shall go into the accounts for the partnership. 7. Kenneth Harold McDonald and Three Bars Holdings Ltd. shall maintain books of accounts and record all deposits and expenses in timely way. 8. Unless otherwise ordered, Donald Thomas McDonald and his solicitors may make such inquiries of the bookkeeper or accountants of the corporations or partnership as they deem fit. 9. The parties are further directed to attend at least three mediation sessions with mediator. If they cannot agree on mediatior [sic] then it shall be mediator as directed by the Director of Mediation Services. The cost of mediation shall be split equally between the Plaintiff and the Defendants. 10. All parties have leave to apply for any further directions for amendment to this order in the event of the breach of the order by any party. 11. The parties shall forthwith sign the Ayerest Organics Contract and deliver the same to Ayerest Organics. 12. Costs shall be reserved to the trial judge. [5] December 22, 1999 Scheibel J. made the following order with the consent of the parties: 1. The Notice of Motion brought by the Defendants dated November 24, 19999 and the Notice of Motion brought by the Plaintiff dated December 16, 1999 are hereby adjourned is sine die. 2. Pursuant to s. 234(3)(b) of The Business Corporations Act, R.S.S. 1978, c. B-10 and s. 65(1) of The Queen's Bench Act, R.S.S. 1978, c. Q-1.01 [sic], receiver-manager shall be appointed for the Defendants, Three Bars Holdings Ltd., Western Ag Marketing Centre Ltd. and the partnership, McDonald Quarter Horses, effective February 1, 2000 if the parties are otherwise unable to resolve all outstanding issues as between them. 3. If the parties are unable to agree upon receiver-manager prior to February 1, 2000, the Court shall appoint such receiver-manager as it deems appropriate. 4. The receiver-manager shall have all powers usually afforded to receiver-manager under the provisions of The Business Corporations Act, including those powers of investigation found pursuant to s. 223 5. Donald Thomas McDonald shall forthwith endorse and deliver over to the McDonald Quarter Horses partnership account all cheques in his possession or power relating to the sale of horses by the partnership and all cheques as and when received from Wyeth-Ayerst Canada Inc. Donald Thomas McDonald shall also forthwith deliver over to the partnership bookkeeper all invoices and statements relating to partnership income in his possession or power upon receipt of the same. 6. The said Kenneth Harold McDonald shall forthwith pay all outstanding accounts of the McDonald Quarter Horses partnership as and when incurred, including all outstanding accounts for natural gas and electricity, and the wages of Maria Monroe for the period of September 1, 1999 through to December 31, 1999 in the amount of $1,300. 7. The Defendants shall forthwith deliver over to the Plaintiff or his solicitors copies of all bank statements and cancelled cheques for the Defendants for the past three years, together with general ledgers for the corporate Defendants and the partnership, with the delivery and provision of such information to continue on an ongoing basis until further Order. 8. The costs of the within application shall be costs in the cause. [6] No receiver-manager has been appointed. [7] third party, Elizabeth McDonald commenced legal action against Kenneth and Donald as Q.B. No. 3510 of 1999, J.C. Regina, and has garnisheed revenues from the Pregnant Mare Urine operation for approximately one year. As of January 8, 2001 there was approximately $50,118.11 paid into Court and $5,763.44 in uncashed cheques payable jointly to Donald and Kenneth held by Donald. [8] January 3, 2001 Donald gave notice that because of lack of revenue he was unable to continue the Pregnant Mare Urine operation beyond January 15, 2001, which would result in forfeiture of the parties' rights under the Pregnant Mare Urine agreement. [9] Kenneth sought an injunction permitting him to take over the operation and an application to set aside the garnishee summonses. McLellan J. dismissed the application for the injunction with the following fiat issued January 12, 2001: The application by Kenneth McDonald for an injunction is dismissed. Counsel agreed that if the garnishee summonses issued in file QB 3510/99 were set aside the applicant could not show irreparable damage. Those summonses have now been set aside. [10] McLellan J. made the following order on file 2001 SKQB 17 (CanLII), [2001] S.J. No. 10 (QL), at para. 10: ... There will therefore be an order setting aside the garnishee summonses and all sums paid into court and any interest shall be returned to the defendants subject to the provisions of the order of Barclay J. issued in file Q.B. No. 2259/99. [11] Donald is now back before the Court seeking another disposition with respect to the above monies. He alleges that breaches of the orders of Barclay J. and Scheibel J. entitle him to bring this application. The alleged breaches are denied by Kenneth and must be the subject of proof at trial of the issues. [12] In essence, Donald is asking that I sit in appeal on the decision of McLellan J. which I am not prepared to do. McLellan J.\'s order was clear as was the order of Barclay J. [13] Donald\'s application is dismissed. Kenneth is awarded costs of $750.00 which are payable forthwith.
FIAT. The plaintiff sought an order pursuant to Queen's Bench Rules 344 and 388 directing the manner in which monies paid into court pursuant to garnishee summonses and other monies should be distributed between the parties. He requested two 1999 orders be amended to the extent necessary to give the relief requested. The brothers had been involved in a dispute over the division of farming assets since July 1999. A third party commenced legal action in QB No.3510/99 against the brothers and garnisheed revenues from the Pregnant Mare Urine operation for approximately 1 year. The brother's application for an injunction to permit him to take over the operation was dismissed in the January 12, 2001 fiat. His application to set aside the garnishee summonses was granted and all sums paid into court and interest were to be returned subject to provisions in fiat QB No.2259/99. The plaintiff alleged the breach of conditions in the previous orders entitled him to bring this application. HELD: The application was dismissed with costs of $750 payable forthwith. The plaintiff was essentially asking the court to sit on appeal. The orders were clear.