CULLEN,
J.:—This
matter
has
come
before
me
in
chambers
as
an
application
to
set
aside
two
garnishee
summonses
served
on
The
Royal
Bank
of
Canada
as
garnishee
by
the
two
judgment
creditors,
Gray’s
Limited
and
Overhead
Door
Sales
(Calgary)
Ltd.
In
the
first
action
$292.12
was
paid
into
court.
In
the
second
action
$18.08
was
paid
in.
These
two
sums
represent
the
entire
general
account
of
the
defendant
in
the
Royal
Bank
of
Canada
at
the
time
of
the
service
of
the
garnishee
summonses
on
the
garnishee.
No
proof
of
service
of
garnishee
summons
on
the
defendant
or
on
the
garnishee
has
been
filed—in
fact,
there
is
a
suggestion
that
one
if
not
both
of
the
garnishee
summonses
has
not
been
served
on
the
defendant.
The
application
is
based
on
three
grounds:
(a)
The
funds
paid
into
court
by
the
garnishee,
the
Royal
Bank
of
Canada,
represent
trust
funds
held
by
the
defendant
in
trust
for
Her
Majesty
pursuant
to
Section
123(4)
of
the
Income
Tax
Act.
(b)
Both
garnishee
summonses
are
defective
in
that
certificates
of
subsisting
writs
of
execution
were
not
filed
at
the
time
the
summonses
were
issued.
(c)
Service
of
the
garnishee
summonses
on
the
defendant
was
not
made
in
accordance
with
the
garnishee
rules.
I
propose
to
deal
with
these
grounds
in
reverse
order.
Firstly,
as
to
(c)
above,
it
is
necessary
to
refer
to
Section
5(1)
of
The
Execution
Creditors
Act,
R.S.A.
1955,
c.
103,
and
amendments
thereto,
which
section
reads
as
follows
:
5.
(1)
Upon
a
garnisheeing
creditor
filing
with
the
clerk
of
the
court
of
a
district
a
certificate
of
the
sheriff
of
that
district
in
Form
A
in
the
Schedule,
certifying
the
total
amount
of
the
subsisting
executions
against
the
debtor
in
his
hands
as
at
the
day
upon
which
the
garnishee
summons
is
to
be
issued,
the
clerk
at
the
request
of
the
garnisheeing
creditor
shall
issue
the
garnishee
summons
(a)
for
the
amount
of
the
claim
of
the
garnisheeing
creditor,
and
(b)
for
the
amount
payable
in
respect
of
all
the
subsisting
executions
other
than
an
execution
for
the
amount
of
the
garnisheeing
creditor’s
claim,
together
with
costs.
This
section
provides
an
additional
remedy
to
that
set
out
in
the
Rules
of
Court.
By
this
section
a
garnishee
creditor
may
garnishee
not
only
for
his
own
debt
but
for
all
creditors
holding
subsisting
writs
of
execution.
This
may
be
an
advantage.
when
the
moneys
in
court
are
being
distributed
or
paid
out
but
the
section
cannot
be
construed
as
obliging
the
garnishee
creditor
to
provide
a
certificate
of
subsisting
executions
as
a
condition
precedent
to
the
issuance
of
a
garnishee
summons.
Accordingly,
this
submission
must
fail.
As
to
(b)
above,
the
Rules
of
Court
provide
that
service
on
the
defendant
must
be
established
before
the
money
in
court
can
be
paid
out.
The
relevant
Rule
is
as
follows:
551.
(3)
A
copy
of
the
garnishee
summons’
shall
be
served
on
the
defendant
or
judgment
debtor
(or
his
solicitor)
within
twenty.
days
after
service
on
the
garnishee
or
‘such
further
time
as
a
judge
ex
parte
may
order.
While
this
Rule
limits
the
time
of
service,
it
allows
the
time
to.
be
extended
by
ex
parte
application
and,
accordingly,
there:
is
no
basis
to
set
aside
the
garnishee
summons
because
proof.
of
service
on
the
defendant
or
garnishee
at
this
time
has
not.
been
established.
This
submission
likewise
must
fail.
The
first
submission,
that
is,
the
contention
that
the
funds
paid
into
court
represent
trust
funds
held
by
the
defendant
in
trust
for
Her
Majesty,
presents
an
interesting
problem.
Section
123
(4)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148,
as
amended,
is
as
follows
:
123.
(4)
Every
person
who
deducts
or
withholds
any
amount
under
this
Act
shall
be
deemed
to
hold
the
amount
so
deducted
or
withheld
in
trust
for
Her
Majesty.
Section
47
of
the
same
Act
provides
that
every
person
paying
salary
or
wages
or
other
remuneration
to
an
employee
shall
deduct
or
withhold
therefrom
such
amount
as
may
be
prescribed
and
shall
at
such
time
as
may
be
prescribed:
remit
such
amount
to
the
Receiver
General
of
Canada.
The
amount
so
deducted
‘is
deemed
to
have
been
received
by
the
person
to
whom
the
remuneration
was
paid.
The
affidavit
filed
in
support
of
the
defendant’s
application
before
me
has
been
taken
by
Piet
Lucas
Luider,
who
is
the
president
of
the
defendant
company,
and
in
his
affidavit
he
swears
that
the
funds
in
the
Royal
Bank
of:
Canada
at
the
time
the
garnishee
summonses
were
served
were
trust
funds
representing
the
income
tax
deducted
from
the
wages
of
the
employees
of
Mountview
Construction
Ltd,
for
the
pay
periods
ending
September
30,
1966,
October
15,
1966,
and
October
28,
1966.
Section
123(5)
of
the
Income
Tax
Act
provides
that
all
amounts
deducted
or
withheld
by
a
person
under
this
Act
must
be
kept
separate
and
apart
from
the
other
moneys
of
the
party
making
the
deductions.
The
fact
that
a
separate
account:
has
not
been
kept
does
not
destroy
the
trust
character
of
the
moneys
and
it
would
appear
that
the
bank
account
which
was
affected
by
these
two
garnishee
summonses
was
an
account
in
which
from
time
to
time
there
were
mixed
funds,
some
of
which
were
the
general
funds
of
the
company
and
some
of
which
were
trust
funds
held
pursuant
to
the
Income
Tax
Act.
It
is
well
established
law
that
a
garnishee
summons
can
take
effect
only
as
against
that
which
the
debtor
could
properly
and
without
violation
of
any
other
rights
of
anyone
else
grant.
When
a
debtor
holds
funds
as
a
trustee,
the
trust
moneys
are
not
subject
to
garnishee.
(Badeley
v.
Consolidated
Bank,
38
Ch.
D.
238
;
In
re
General
Horticultural
Company,
ex
parte
Whitehouse,
32
Ch.
D.
512;
Hancock
v.
Smith,
41
Ch.
D.
456;
In
re
Hallett’s
Estate,
Knatchbull
v.
Hallett,
13
Ch.
D.
696.)
It
is
also
established
law
that
where
the
account
is
a
mixed
one
the
burden
is
on
the
party
making
the
attachment
to
establish
that
the
money
sought
to
be
garnisheed
is
the
debtor’s
own
money.
(Campbell
v.
Gemmell
(1890),
6
Man.
R.
355;
Stobart
v.
Axford
(1893),
9
Man.
R.
18.)
In
the
present
matter
the
only
evidence
before
the
court
is
the
affidavit
above
referred
to.
The
judgment
creditors
have
called
no
evidence,
nor
did
their
counsel
choose
to
act
on
the
suggestion
that
he
might
wish
to
cross-examine
on
the
affidavit.
Therefore,
on
the
only
evidence
before
the
court,
the
moneys
which
were
paid
in
by
the
Royal
Bank
of
Canada
pursuant
to
the
garnishee
summonses,
are
deemed
to
be
trust
moneys
held
by
the
defendant
as
trustee
for
Her
Majesty
the
Queen
pursuant
to
Section
123(4)
of
the
Income
Tax
Act.
On
this
point
the
application
made
on
behalf
of
the
defendant
will
succeed.
Counsel
for
the
applicant
has
indicated
that
he
is
prepared
to
consent
to
an
order
directing
that
the
moneys
in
court
be
paid
to
the
Receiver
General
of
Canada
in
fulfilment
of
the
terms
of
the
trust,
and
such
order
will
go.
Two
other
cases
have
been
cited
to
me
in
support
of
this
application
:
In
re
C.
F.
L.
Engineering
Company
and
George
Duclos,
[1944]
C.T.C.
62;
and
Workmen’s
Compensation
Board
v.
Newton
M.
Graham,
[1944]
C.T.C.
225.
These
two
cases
are
distinguishable
on
their
facts
from
the
present
case
and
deal
primarily
with
Section
92(7)
of
the
Income
War
Tax
Act,
R.S.C.
1927,
c.
97
and
amendments
thereto.
While
this
section
was
in
part
incorporated
into
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
as
Section
123(6),
this
particular
subsection
was
repealed
in
1956
and,
therefore,
these
two
cases
do
not
have
any
particular
application
to
the
present
problem.
Counsel
may
speak
to
me
about
the
question
of
costs.
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