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The court dismissed judicial review of an in-absence garnishment hearing, finding no procedural unfairness in context, the order reasonable, and the matter moot.
The court upheld the motion judge’s finding that MCAP’s GSA, perfected in 2013, validly covered proceeds payable to 167 under the BTIG and therefore MCAP had priority for the Shortfall Judgment over ACC and other creditors; ACC’s abuse/estoppel argument failed because MCAP’s prior position in the improvident sale action addressed assignment of the BTIG agreement (not proceeds) and was not inconsistent with asserting a PPSA security in receivables. However, because it was discovered after the hearing that the Mesbur judgment was a consent judgment and material issues (PPSA application, perfect…
Source excerpt
The motions judge correctly interpreted the Policy to make the $500,000 dishonest lawyer sublimit both per claim and an aggregate limit per policy period; LawPRO reasonably expended defence and investigation costs across multiple claims involving McEnery and the Firm, which exhausted the aggregate sublimit (less a prior payment of $27,123.63), so no further funds were payable to the appellants; appeals dismissed.
Source excerpt
On costs after a garnishment application, the court held the defendant had not shown grounds to depart from the default rule. Costs were awarded in the cause.
The court dismissed Dawn Construction (2018) Ltd.’s standing application and ordered BGIS LP to pay $76,334.54 into court in a debt recovery garnishment dispute.
The motion judge erred by concluding that Gorman J. had decided the priority dispute when her endorsement expressly indicated the issue remained for another day; because there was no prior determination, the appellant's motion could not be dismissed as a collateral attack and the matter must be remitted for a merits hearing; appellant is entitled to the specified costs.
Source excerpt
The garnishment Order was interlocutory because it was made within the ongoing oppression action to enforce prior cost awards, did not finally determine the parties' substantive rights nor end a discrete proceeding, and therefore the Court of Appeal lacked jurisdiction to hear the appeal; the appeal was quashed and any further appeal lies to the Divisional Court under CJA s.19(1)(b).
Source excerpt
The court refused to set aside prejudgment garnishing orders or release paid funds, finding no material non-disclosure and a real risk of dry judgment.
Extension of time to appeal was denied because the absence of an intention to appeal was not adequately explained (judgment‑proof status demonstrated a tactical choice), the inordinate delay caused real prejudice to the victims, and the proposed appeal was not clearly strong given unresolved factual issues and allegations of fraud; therefore it was not in the interests of justice to extend time under r.3.02.
Source excerpt
The Court of Appeal dismissed Mr. Guo’s appeal from a payment-out order, holding the disputed funds never became Mr. Bahia’s property and were not attachable by garnishment.
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