Cash Stop Loans v. Bayley, 2014 BCPC 274 (CanLII)
Citation: Cash Stop Loans v. Bayley Date: 20141125
Registry: Kamloops
IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
(Small Claims Court)
BETWEEN:
CASH STOP LOANS INC.
CLAIMANT
AND:
RANDOLPH SIDNEY PATRICK BAYLEY
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 25, 2014, Cash Stop Loans Inc. (“Cash Stop”) obtained a Default Judgment in the amount of $647.96, including costs, against Randolph Bayley. On August 27, 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 $718.96, which included further costs of $71 for the attachment proceedings.
[2] There were sufficient funds in Mr. Bayley’s TD account on August 27, 2014 to satisfy the Garnishing Order but TD did not honour the Garnishing Order on the basis that the funds in Mr. Bayley’s account were Canada Pension Plan (“CPP”) and Old Age Security (“OAS”) 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] Sections 65(1) and (1.1) of the Canada Pension Plan, R.S.C., 1985, c. C-8, provide as follows:
65. (1) A benefit shall not be assigned, charged, attached, anticipated or given as security, and any transaction purporting to assign, charge, attach, anticipate or give as security a benefit is void.
(1.1) A benefit is exempt from seizure and execution, either at law or in equity.
[4] Sections 36(1) and (1.1) of the Old Age Security Act, R.S.C., 1985, c. O-9, contain identical wording with respect to OAS benefits.
[5] The issue before me is whether ss. 65(1) and (1.1) of the Canada Pension Plan ss. 36(1) and (1.1) of the Old Age Security Act continue to exempt benefits payable under those Acts from attachment once the benefits are deposited into a recipient’s bank account.
[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] In this case, the evidence is clear that Mr. Bayley had essentially no balance in his TD account on August 27, 2014 until deposits of $587.88 and $972.95 were made into his account for CPP and OAS benefits respectively. These amounts are easily identifiable as the only funds in Mr. Bayley’s account and, applying the reasoning in the O’Brien and Szalavetz decisions, these funds were exempt from attachment.
[8] Accordingly, I dismiss Cash Stop’s application for a Garnishing Order Absolute against TD.
__________________________
L.S. Marchand
Provincial Court Judge