J.C. Y. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF YORKTON BETWEEN: STEPHIE SOKULSKI PLAINTIFF (APPLICANT) and DWAYNE SOKULSKI DEFENDANT (RESPONDENT) and THE LUMSDEN HOTEL and THE ROYAL BANK OF CANADA GARNISHEES R.A. Leland for the applicant No one appearing for the respondent. No one appearing for the garnishees. JUDGMENT GUNN J. September 28, 1995 Stephie Sokulski ("the applicant") applies for anorder pursuant to s. 14 of The Attachment of Debts Act, R.S.S.1978, c. A-32 ("the Act"), paying out to her certain moniespaid into court by the Royal Bank of Canada and by MartindaleHoldings Ltd. (The Lumsden Hotel) plus the interest thereon. Dwayne Sokulski ("the respondent") was personally served with notice of this application, but he did not appear. The applicant obtained judgment against the respondent May 11, 1987, in the Court of Queen's Bench for the province of Alberta. The judgment was registered as judgment of the Court of Queen's Bench for Saskatchewan July 7, 1987, in the sum of $11,634.74. garnishee summons naming the Royal Bank as the proposed garnishee was issued on November 26, 1987, and served on the Royal Bank November 30, 1987. The Royal Bank paid the sum of $50.11 into court December 2, 1987. garnishee summons naming the Lumsden Hotel as the proposed garnishee was issued on December 15, 1988, and served on the Lumsden Hotel on January 9, 1989, and January 28, 1989. The respondent was served with the garnishee summons January 24, 1989. Martindale Holdings Ltd. (The Lumsden Hotel) paid the following sums into court: 1. February 9, 1989 $33.87 2. March 7, 1989 $99.57 3. April 17, 1989 $66.72 4. May 5, 1989 $66.72 5. June 13, 1989 $66.72 THE LEGISLATION The relevant provisions of the Act are as follows: 5(1) Service of the summons on the garnishee shall bind any debt due or accruing due from the garnishee to the defendant or judgment debtor and all wages or salary that become due or payable at any time within five days after service of the summons. (3) copy of the garnishee summons shall be served on the defendant or judgment debtor, or his solicitor, within 20 days after service on the garnishee, or within such further time as the court or judge may order ex parte. 14(1) No order shall be made against the garnishee or for payment out of any money paid into court by the garnishee, until at least ten days after service of the summons on the defendant or judgment debtor and on the garnishee, nor when garnishee summons issues prior to judgement[sic] until the plaintiff has recovered judgment against the defendant. DISCUSSION There are number of deficiencies in the procedure adopted. The respondent was never served with the garnishee summons naming the Royal Bank as garnishee. With respect to the Lumsden Hotel, there is evidence it was served on two occasions with garnishee summons, but it paid money into court on five occasions. The judgment debtor appears only to have been served with the garnishee summons once. There has been no application by the judgment debtor to set aside either garnishee summons garnishees, nor did he appear to speak to the application for payment out. The applicant invites me to exercise my discretion to allow the money to be paid out, given the passage of time, even with all of the above deficiencies. The total amount paid into court by both garnishees was $383.71. Interest accrued to the amount paid into court equals $197.92 for total sum of $581.63 remaining in court. The question is whether, considering the deficiencies, there is any authority for the court to exercise its discretion to order the money to be paid out to the plaintiff. The court has exercised its inherent power to controlits own process in garnishment proceedings on a number ofoccasions. In Kroma Kolor Photo Labs v. Snyder et al. (1991), 1991 CanLII 7588 (SK QB), 98 Sask. R. 257 (Q.B.), Halvorson J. expressly exercised this discretion to resolve matter not within the purview of the Act. Halvorson J. ruled that ss. 11(1) of the Act did not empower the court to set aside judgment entered against non-appearing garnishee pursuant to motion under s. 18 of that Act. However, Halvorson J. held the court had jurisdiction to intervene based on its inherent power to supervise its own process. Consequently, Halvorson J. exercised this discretion and set aside the judgment obtained against non-appearing garnishee. With regard to the power of superior court to pay money out of court, Sorsdahl v. Dahl House Inc., [1991] W.W.R. 730 (Sask. C.A.) is instructive. In that case the appellant appealed decision of chambers judge ordering the return of money mistakenly paid into court by garnishee. Cameron J.A. speaking for the court said the following at pp. 730-731 of his judgment: Whether or not power exists in the court under the Attachment of Debts Act to return money paid in by mistake is neither here nor there, for in our opinion the court enjoys general power to do so. It would be incongruous were it otherwise. The court, after all, is superior court, charged generally with the administration of justice, and enjoys inherent as well as statutory jurisdiction. Were there no other source of power to rectify mistakes of this nature, the court could draw upon its inherent powers to do so. An example of the exercise of the court's inherent power is found in decision of Johnson C.J.Q.B. in Bank of Nova Scotia v. Bulych, MacEachern, Richardson, Lovell and Sydco Management Ltd. (1981), 1981 CanLII 2416 (SK QB), 13 Sask. R. 332 (Q.B.) where he upheld lower court ruling setting aside two pre-judgment garnishee summons. As consequence of the invalidity of the summons, the court was asked to determine who should receive monies already paid into court. The plaintiff contended that the court should pay the money out to the garnishees. In response, Johnson C.J.Q.B. stated at pp. 334-335 of his judgment: Counsel for the plaintiff contends that the status quo immediately prior to service of the defective documents should be restored and the money should be paid back to the garnishees. With the utmost respect it is my view that the money should be paid to the defendants. Each of the garnishees paid the money into court and by their respective acts they acknowledged that the funds in question were owned by the defendants to whom each was indebted. There is no good case in my view for the funds to be paid back to the respective garnishees. Accordingly after the time for appeal has elapsed and if no appeal is taken the funds, including any accrued interest, will be paid to each of the defendants. Although not expressly stated, Johnson C.J.Q.B. utilized the inherent powers of the court to direct payment out of money paid into court under an invalid garnishee summons. Perhaps the most persuasive case is Kirby v. Townsend (1988), 1988 CanLII 5256 (SK CA), 72 Sask. R. 12 (C.A.) reversing in part 1988 CanLII 5217 (SK CA), 72 Sask. R. (Q.B.) where Tallis J.A. speaking for the court, upheld an order setting aside pre-judgment garnishee summons. However, Tallis J.A. further held that the chambers judge erred by "freezing" the money already paid into court under the invalid garnishee summons pending resolution of the trial of the action. Rather, the court stated that the chambers judge should have directed that the monies "be forthwith paid out to the defendants" (at p. 15). However, Tallis J.A. also noted that, by reason of the court's earlier statements upholding the trial decision of the action, payment of the monies out of court to the defendant was no longer an issue. He stated at p. 15: There is, however, complicating factor because the plaintiff succeeded at trial and recovered judgment from which an appeal has now been dismissed today. If the defendants had brought this garnishment appeal forward in timely way, we would have directed that the monies be paid out to them but now that the plaintiff has successfully resisted the appeal from the trial judgment, we decline to do so. The monies now in court are available for payment of the judgment. However, we emphasize the clear error of the learned Chamber judge in making the order that he did and wish to make it clear that this practice should not be followed in future. Accordingly am satisfied in the circumstances before me that the monies paid into court by the Royal Bank and the Lumsden Hotel are available for payment of the plaintiff's judgment notwithstanding the deficiencies. I amalso satisfied the court has the discretion to order thepayment of the money to the plaintiff as a judgment creditor. I order that the monies held in court to the creditof this cause be paid to the plaintiff. I make no order as tocosts as this chambers application would have been unnecessaryhad the proper procedures been followed in the first instance.
The Plaintiff applied for payment out of certain monies paid into court in response to 3 garnishee summons served on 2 garnishees after judgment. The first summons was never served on the Defendant. Of the other 2, only 1 was served on the Defendant. Further, although 1 garnishee was only served twice, it paid monies into court on 5 occasions. There was no application to set aside any of the garnishee summons' by the Defendant and he did not appear on this application. HELD: Application allowed. 1)The court has an inherent power to control its own process in garnishment proceedings. 2)The court also has the discretion to order the payment of the money to the plaintiff as a judgment creditor. 3)The chambers judge ordered that the monies held in court to the credit of this cause be paid to the plaintiff, but made no order as to costs.