MFI Ag Services Ltd. v. Muskowekwan Indian Band, 2010 SKQB 322 - Court of Queens Bench, Popescul, September 7, 2010 (QB10303) The defendant applies by notice of motion for an order pursuant to s. 10 of The Attachment of Debts Act quashing a pre-judgment garnishee summons obtained by the plaintiff. The defendant argues the affidavit filed in support of the garnishee summons does not comply with the statutory requirements of s. 3(2) of the Act. HELD: It is well established law that a pre-judgment garnishee summons is an extraordinary remedy in Saskatchewan. Accordingly, failure to strictly comply with the provisions of the Act will render the garnishee summons a nullity. The requirements for an affidavit in support of a pre-judgment garnishee are contained in s. 3(2) of the Act and have been interpreted by the court in Watson v. First Nations Internet Assn. Inc. as: 1) a debt or liquidated demand and the amount is agreed on or ascertainable, 2) the affidavit states the nature of the claim with sufficient particularity to avoid the Case Mail v. 13 no. 4 lawsociety.sk.ca/casemail/cmailv13n4.htm[22/11/2011 11:01:02 AM] necessity of making assumptions of fact, 3) the debt is due and payable, and 4) the claim is between the plaintiff and defendant. The court is entitled to look at only the affidavit filed in support of the garnishee summons and not the pleadings or other affidavits filed in the matter. The defendant argues that the affidavit does not state the nature of the claim with sufficient particularity. The affidavit contains very little information. It does not provide the details as to whether the debt was in contract, quantum meruit or otherwise, when the alleged work was done or how the total outstanding was determined. The statement of claim has not been incorporated by reference into the affidavit. A copy of the contract or agreement under which the work was completed was not attached, which has been held to be fatal to supporting affidavits in previous cases. The garnishee summons is set aside. All funds paid into court pursuant to the summons, including any accumulated interest, shall be paid to the defendant. The defendant shall have the costs of this application in any event of the cause. © The Law Society of Saskatchewan Libraries
Posted on: Tue, 12 Aug 2014 02:07:05 +0000
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