Docket: T-304-05
Citation: 2012 FC 185
Vancouver, British Columbia, February 13,
2012
PRESENT: Roger R. Lafrenière, Esquire
Prothonotary
IN THE MATTER OF the Canada Labour Code, R.S.C. 1985, c. L-2
as amended
AND IN THE MATTER OF an Adjudication Decision
of
Eric G. Lister, Q.C., filed
February 15, 2005
BETWEEN:
|
|
ALBERT SINCLAIR, SR.
|
|
|
Complainant
(Judgment Creditor)
|
|
and
|
|
|
SPLIT LAKE FIRST NATION
|
|
|
Employer
(Judgment Debtor)
|
|
|
|
|
REASONS FOR ORDER AND ORDER
[1]
Mr.
Albert
Sinclair, Sr. (Complainant), has brought an ex parte motion for a
garnishing order pursuant to Rule 449 of the Federal Courts Rules (FCR)
that all debts owing or accruing due from a local branch of the Royal Bank of
Canada in Thompson, Manitoba (Garnishee) to the Tataskweyak Cree Nation, formerly
known as Split Lake First Nation (Employer), be attached to answer the judgment
debt of $10,435.20 due as at January 12, 2012, plus the sum of $403.00 for
unpaid costs, for a total of $10,838.20. The Complainant also seeks an order
for costs against the Employer in the amount of $300.00 or in such other amount
as the Court deems just and appropriate in the circumstances.
[2]
The
issue on this motion is whether there is any “order for the payment of money” within the meaning of Rule
425 of Federal Courts Rules capable of being enforced by way of
garnishment.
Background
[3]
The Complainant
is a band member of the Tataskweyak Cree Nation. In 1998, he was hired by the
manager of the Split Lake Radio Station to fill the position of radio announcer
and disc jockey. The Complainant’s employment was terminated on November 7,
2003 because he allegedly breached the First Nation’s “zero tolerance policy” with
respect to alcohol consumption. The Complainant denied ever drinking on the
reserve and filed a wrongful dismissal complaint against the Employer.
[4]
Eric
G. Lister, Q.C. was appointed as adjudicator to hear the complaint pursuant to
the Canada Labour Code, RS, c. L-1. A hearing was held by the
adjudicator on November 23, 2004; however, the Employer declined to attend.
[5]
By
decision dated November 26, 2004, the adjudicator concluded that the
Complainant had been unjustly dismissed (Adjudication Decision). He ordered
that the Complainant be reinstated to his position effective December 1, 2004. He
also ordered that the Employer pay to the Complainant compensation for unpaid
wages for the period from November 10, 2003 to November 30, 2004.
[6]
On
February 15, 2005, the Adjudication Decision was filed in the Registry of the
Federal Court pursuant to subsection 251.15(1) of the Canada Labour
Code. Upon being filed, the Adjudication Decision acquired the same status
as a judgment and the same executory force as if it had been rendered by this
Court: National Bank of Canada v Granda, [1984] 2 FC 249 (CA).
[7]
Pursuant
to a Garnishing Order dated January 17, 2006, the amount of $16,637.98,
equivalent to the wages owed to Complainant to November 30, 2004, plus $300.00
for costs, was paid into court.
[8]
The Employer
subsequently made an unsuccessful application to set aside the judgment. By
Order dated February 28, 2008, the amount of $16,937.98, and accrued
interest, was ordered
paid out to the Complainant’s solicitor. Costs of the garnishment proceedings,
fixed in the amount of $403.00, were awarded to the Complainant.
[9]
In
his affidavit in support of the present motion, the Complainant states that the
costs award of $403.00 has not been paid by the Employer. He also
asserts that he was
never rehired back by the Employer as ordered by the adjudicator.
[10]
The
Complainant indicates that he obtained other employment on June 10, 2005, leaving
him without any wages for the period from December 1, 2004 to June 10, 2005. He
claims that, as such, he is owed $8,832.00 for wages from the Employer for
the period of unemployment, as well as interest on the said amount in the
amount of $1,603.20 to January 12, 2012.
[11]
The
Complainant says that he believes that the Defendant Employer maintains a bank
account with the Royal Bank of Canada, at a branch located at 23 Selkirk Avenue, Thompson, Manitoba. Accordingly, he seeks
an order against the Garnishee attaching the sum of $10,838.20, plus $300.00
for the costs of this motion.
Analysis
[12]
Pursuant
to Rule 449(1) of the FCR, on the ex parte motion of a judgment creditor,
the Court may order that a debt owing or accruing due from a person in Canada
to a judgment debtor be attached to answer the judgment debt; and that the
person attend, at a specified time and place, to show cause why the person
should not pay to the judgment creditor the debt or any lesser amount sufficient
to satisfy the judgment.
[13]
A
pre-condition to obtaining a garnishment order is the existence of a judgment
debt, in other words, an unsatisfied “order for the payment of money”. In particular,
there must be an order awarding monetary relief to one party from another party
capable of being enforced.
[14]
The
Adjudication Decision does not provide monetary relief to the Complainant for
any period beyond November 30, 2004. In fact, it is limited to a simple declaration
that the Complainant be reinstated.
[15]
The
order of reinstatement may be enforced under Part 12 of the FCR. Alternatively,
the Complainant could have returned before the adjudicator to obtain damages in
lieu of reinstatement, as was done in Pierre v Roseau River Tribal Council,
[1993] 3 FC 756. However, a motion for a garnishment order is clearly not the
proper procedure to obtain default judgment against the Employer for
non-compliance with the Adjudication Decision.
Conclusion
[16]
The
motion for garnishment of wages alleged to be owed to the Complainant as a
result of the declaration of reinstatement is dismissed.
[17]
The
Complainant has established that the Employer has not paid costs awarded on February 28,
2008 in the amount of $403.00. Based on Part XIV of the Manitoba Court Of Queen's
Bench Act, the post-judgment interest on the costs award to date is roughly
$22.00.
[18]
As
for costs of this motion, the majority of the motion material submitted by the
Complainant was related to his claim for unpaid wages. In the circumstances, I
would reduce the award of costs to $150.00.
[19]
Accordingly,
a garnishment order will issued to attach the judgment debt of $425.00, plus $150.00
for costs of this motion.
ORDER
THIS COURT
ORDERS that:
1. The
motion is granted in part, with costs of this motion hereby fixed in the amount
of $150.00, inclusive of disbursements and taxes, payable by the Employer, Tataskweyak Cree Nation.
2. All
debts due or accruing due from the Garnishee, Royal Bank of Canada, 23
Selkirk Avenue, Thompson, Manitoba, to Tataskweyak
Cree Nation,
shall be attached to answer the unsatisfied Order of costs in the amount of $425.00,
plus costs of the garnishee proceedings of $150.00.
3. Unless
the amount of $575.00 is paid into court, or an affidavit is filed by the Royal
Bank of Canada confirming that there are no debts due or accruing due to Tataskweyak Cree Nation, or, alternatively, that all
debts due or accruing due to Tataskweyak Cree Nation, up to $575.00, have been paid into
court, a representative of the Royal Bank of Canada shall attend before the
Federal Court, 4th Floor, 363 Broadway, Winnipeg, Manitoba on
Monday, March 12, 2012 at 9:30 a.m. to show cause why the Royal Bank of
Canada should not pay to the Complainant the amount of $575.00, or any lesser
amount sufficient to satisfy the Order of costs dated February 28, 2008,
together with the costs of the garnishee proceedings.
4. The
Complainant shall serve a copy of this Order on the Royal Bank of Canada, 23 Selkirk Avenue, Thompson, Manitoba, in accordance with Rule 130
of the Federal Courts Rules, and file proof of service, no later
than February 29, 2012.
“Roger
R. Lafrenière”
Email this Content