Noël,
J.:—This
is
an
application
by
Her
Majesty
the
Queen
for
a
final
order
of
garnishment
against
the
garnishee,
the
Royal
Bank
of
Canada.
The
judgment
debtor
objected
to
the
application
and
made
several
arguments.
One
of
them
requires
further
consideration.
The
garnishee's
statement
of
claim
indicates
that
the
judgment
debtor
holds
a
retirement
savings
plan
with
it.
At
the
time
the
statement
of
claim
was
filed,
the
amount
accumulated
in
this
plan
had
been
invested
in
two
certificates
of
deposit
expiring
on
March
1,
1993
and
February
27,
1994.
It
is
the
amounts
which
would
then
be
payable
which
were
garnished.
According
to
the
judgment
debtor,
the
retirement
savings
plan
contract
is
a
fixed-term
annuity
plan,
and
since
moreover
it
includes
the
designation
of
his
wife
as
beneficiary
of
the
plan
in
the
event
of
his
death,
it
is
exempt
from
attachment
pursuant
to
section
178
of
the
Trust
Companies
Act,
S.Q.
1987,
c.
95,
and
article
2252
of
the
Civil
Code.
The
retirement
savings
plan
contract
provides
that
the
accumulated
amount
will
be
the
subject
of
a
distribution
taking
the
form
of
a
fixed-term
annuity
when
the
judgment
debtor
reaches
the
retirement
age
determined
thereunder.
However,
the
contract
also
provides
that
the
judgment
debtor
may
withdraw
accumulated
moneys
before
the
stipulated
date
of
his
retirement.
In
the
submission
of
the
judgment
debtor,
so
long
as
he
has
not
exercised
this
right
of
withdrawal
the
contract
is
a
fixed-term
annuity
plan
which
is
exempt
from
attachment.
If
there
were
no
withdrawal
provision,
the
method
of
distribution
of
accumulated
moneys
would
be
clear
and
unambiguous.
However,
since
it
is
there,
the
question
that
arises
is
whether
this
right
of
withdrawal
causes
the
plan
to
lose
its
exemption
from
attachment.
Specifically,
does
the
plan
have
the
characteristics
of
a
fixed-term
annuity
when
the
contract
creating
it
provides
that
the
judgment
debtor
may
terminate
it
in
whole
or
in
part
and
would
be
reimbursed
accumulated
monies
provided
he
has
not
reached
the
stipulated
retirement
age?
Recognizing
that
the
Quebec
courts
have
dealt
with
this
matter
in
different
ways
(Comptais
v.
La
Prudentielle
(1982),
40
C.B.R.
118;
Maron
v.
Maritime
Life,
[1983]
R.D.J.
532;
Schmidt
Ltée
v.
Crevier,
No.
93-597,
Court
of
Quebec,
January
28,
1993),
I
feel
I
must
answer
the
question
in
the
negative.
In
my
view,
the
right
of
withdrawal
means
that
the
method
of
distribution
of
the
accumulated
monies
remains
indeterminate
so
long
as
the
judgment
debtor
has
not
reached
the
stipulated
retirement
age
within
the
meaning
of
paragraph
1.9
of
the
contractual
conditions.
Before
that
time
it
cannot
be
shown
under
the
terms
of
the
contract
that
the
method
of
distribution
of
accumulated
money
in
the
plan
is
in
the
nature
of
a
fixed-term
annuity.
While
the
bank
has
undertaken
by
the
contract
to
make
this
type
of
payment,
the
undertaking
is
unilateral.
At
any
time
before
his
retirement
the
judgment
debtor
retains
the
right
under
paragraph
1.11
of
the
contractual
conditions
to
require
some
other
mode
of
distribution,
such
as
in
the
case
at
bar
the
simple
withdrawal
of
the
accumulated
monies
or
part
thereof.
Since
at
the
time
the
garnishee
was
served
the
method
of
distribution
of
the
monies
accumulated
in
the
registered
retirement
savings
plan
remained
indeterminate,
I
cannot
conclude
that
at
the
relevant
time
the
money
was
a
fixed-
term
annuity
within
the
meaning
of
section
178
of
the
Trust
Companies
Act.
For
these
reasons,
the
objection
to
the
garnishment
is
dismissed
and
the
final
order
of
garnishment
made.
Application
allowed.
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