J. 1999 SKQB 60 Q.B.G. A.D. 1999 No. 639 929 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: DANIEL TAPP and 626170 SASKATCHEWAN LTD. and WILLIAM KURK and SASKATCHEWAN PROPERTY MANAGEMENT CORPORATION GARNISHEE(RESPONDENT) and A.K. EUTENEIER SONS TRUCKING LTD. RESPONDENT D.S. Tapp for Daniel Tapp G.J. Moran for the Director of Labour Standards JUDGMENT MacDONALD J. September 9, 1999 [1] The plaintiff, Daniel Tapp ("Tapp"), is a practising lawyer in the Province of Saskatchewan. On March 4, 1999, Tapp commenced an action against the defendant, 626170 Saskatchewan Ltd. for fees and disbursements in the amount of $4,647.85. [2] On March 9, 1999, Tapp obtained a garnishee summons issued prior to judgment against the said defendant and served it on Saskatchewan Property Management Corporation ("SPMC"), the proposed garnishee. [3] As a result of that garnishee, the sum of $337.46 was paid into court on April 26, 1999, to the credit of Q.B.G. 639 of 1999. On April 13, 1999, an application was made by SPMC on Q.B.G. 969 of 1999 for an order pursuant to Rules 411 and 415(1) of the Queen's Bench Rules of Court that the sum of $2,521.68 and any further amounts due and owing from SPMC to the defendant company be paid into court and disposed of as the court may direct in full satisfaction of SPMC's obligations to the various parties who may have had a claim against the money. That order was granted by Justice Wright together with costs of the application to SPMC to be taxed. [4] Prior to the application the sum of $2,521.68 had been paid into court on March 30, 1999, on Q.B.G. 929 of 1999 and an additional amount was paid in on that file number on April 26, 1999, in the amount of $968.39. As of that date total of $3,827.53 was paid into court on these two files. [5] On April 29, 1999, the Labour Standards Branch filed notice with the registrar of the Court of Queen's Bench of their claim with respect to potential wage claims owing by the defendant company to its employees pursuant to s. 54 of The Labour Standards Act, R.S.S. 1978, c. L-1. [6] On May 27, 1999, Tapp obtained default judgment against the defendant in the amount of $4,646.85. Tapp then made an ex parte application on May 28, 1999, for payment out of the moneys which had been paid into court by SPMC. The court, however, in view of the third party claim by the Director of Labour Standards directed that the application for payment out should be made by notice of motion and that all parties interested in the funds should be served. [7] Tapp then served all of the various parties potentially interested in the moneys with the notice of motion and the matter was heard on June 17, 1999, in Chambers. On that date the only parties to appear were Tapp in person and counsel for the Minister of Labour. No one appeared on behalf of the other parties. The matter was reserved for decision on that date. At the time of the application for payment out the Minister of Labour had not obtained judgment against the defendant company and there was no certificate of the Minister on file. However, this was later obtained and filed with the local registrar at the judicial centre of Regina on July 12, 1999. [8] Although I agree with counsel for the Minister of Labour that the moneys paid into court according to the decision in the Polyco Window Manufacturing Ltd. v. Prudential Assurance Co., 1994 CanLII 5009 (SK QB), [1994] 5 W.W.R. 659 (Sask. Q.B.) create a fund from which creditors must be paid; in this instance however, the claim by the Minister of Labour as of the date of the application was not a proven claim. No certificate had been issued and no judgment had been entered as of that date. A judgment by Tapp had been filed in May, 1999, so that on June 17, 1999, he was the only party entitled to the moneys. [9] The claim by the Minister of Labour with respect to the funds paid into court as of the date of the application is therefore dismissed. The applicant/plaintiff, Daniel Tapp, shall therefore have payment out to him of all moneys paid into court by Saskatchewan Property Management Corporation with respect to Q.B.G. 639 of 1999, and Q.B.G. 929 of 1999, together with accrued interest less that amount which was previously ordered paid out as costs to SPMC by Justice Wright in the amount of $324.33.
The plaintiff lawyer commenced an action for fees and disbursements in the amount of $4,647.85. The proposed garnishee, SPMC, paid $337.46 into court and brought an application for an order pursuant to Rules 411 and 415(1) of the Queen's Bench Rules of Court. An order that any further amounts due and owing from SPMC to the company be paid into court to be disposed as directed by the court was granted with taxed costs to SPMC. Labour Standards filed notice of potential wage claims. The plaintiff obtained default judgment and made an ex parte application for payment out of the monies paid into court by SPMC. HELD: The applicant/plaintiff was to be paid all monies paid into court by SPMC with respect to the two files together with accrued interest less the amount previously paid out. The claim by the Minister of Labour was dismissed. Although the monies paid into court according to the decision in Polyco Window Manufacturing Ltd v. Prudential Assurance Co create a fund from which creditors must be paid, the claim by the Minister of Labour as of the date of the application was not a proven claim. No certificate had been issued and no judgment had been entered as of that date. A judgment had been filed by the plaintiff. He was the only party entitled to the monies.