Cash Stop Loans v. Dickson, 2014 BCPC 273 (CanLII)
Citation: Cash Stop Loans v. Dickson Date: 20141125
Registry: Kamloops
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
(Small Claims Court)
BETWEEN:
CASH STOP LOANS INC.
CLAIMANT
AND:
JAMIE DICKSON
DEFENDANT
REASONS FOR JUDGMENT
OF THE
HONOURABLE JUDGE L.S. MARCHAND
Appearing for the Claimant: S. Craddock
Appearing for the Defendant: C. Lynch
Place of Hearing: Kamloops, B.C.
Date of Hearing: November 10, 2014
Date of Judgment: November 25, 2014
INTRODUCTION
[1] On August 15, 2014, Cash Stop Loans Inc. (“Cash Stop”) obtained a Default Judgment in the amount of $509.46, including costs, against Jamie Colleen Dickson. On August 20, 2014, Cash Stop served a Garnishing Order (After Judgment) on the TD Canada Trust (“TD”) branch on Tranquille Road in Kamloops in the amount of $580.46, which included further costs of $71 for the attachment proceedings.
[2] There were sufficient funds in Ms. Dickson’s TD account on August 20, 2014 to satisfy the Garnishing Order but TD did not honour the Garnishing Order on the basis that the funds in Ms. Dickson’s account were income assistance benefits and, therefore, exempt from attachment. Cash Stop seeks a Garnishing Order Absolute against TD to compel TD to make good on the Garnishing Order which, according to Cash Stop, TD should have honoured.
ANALYSIS
[3] Section 29(1) of the Employment and Assistance Act, S.B.C. 2002, c. 40, provides as follows:
29. (1) Income assistance, hardship assistance and supplements are exempt from garnishment, attachment, execution or seizure under any Act.
[4] The issue before me is whether s. 29(1) of the Employment and Assistance Act continues to exempt income assistance benefits payable under the Act from attachment once the benefits are deposited into a recipient’s bank account.
[5] I am not aware of any case law directly on point but there are cases which interpret analogous exemptions in ss. 65(1) and (1.1) of the Canada Pension Plan, R.S.C. 1985, c. C-8 and ss. 36(1) and (1.1) of the Old Age Security Act, R.S.C. 1985, c. O-9 which “exempt” benefits under those Acts “from seizure or execution, either at law or in equity.”
[6] In Metropolitan Toronto (Municipality) v. O’Brien, 1995 CanLII 7053 (ON SC), [1995] O.J. No. 4896 (S.C.) and Szalavetz v. Gordon, 2008 QCCQ 11698, the courts held that CPP and OAS benefits that can be identified as such do not lose their character and are not subject to attachment even after they are deposited into a recipient’s bank account.
[7] There is also a strong public policy rationale which supports this conclusion in the specific context of income assistance benefits. In Constantini v. Fischer, [1982] B.C.J. No. 1540 (QL) (SC), Murray J. found that a Garnishing Order could not attach benefits to be paid by the Province to a recipient under predecessor legislation. Murray J. found that such benefits were not “debts, obligations or liabilities” within the meaning of the Court Order Enforcement Act, R.S.B.C. 1979, c. 158. Relevant to the present case, Murray J. also noted that it would be contrary to public policy to allow income assistance benefits to be used to satisfy a debt rather than to provide the bare necessities of life for the recipient as intended by the legislation.
[8] In this case, I accept the information provided by Cash Stop’s representative that the Province paid income assistance benefits to recipients on August 20, 2014 and the information provided by TD’s representative that the $592.91 in Ms. Dickson’s account on August 20, 2014 was in fact comprised of her income assistance benefit.
[9] Applying the reasoning in the O’Brien and Szalavetz decisions, as supported by the policy rationale articulated in Constantini, I find that the funds which were in Ms. Constantini’s TD account on August 20, 2014 were exempt from attachment.
[10] Accordingly, I dismiss Cash Stop’s application for a Garnishing Order Absolute against TD.
_______________________
L.S. Marchand
Provincial Court Judge