The garnishee appealed an order requiring it to pay $154,257.05 to the respondent creditor pursuant to r. 60.08(17) of the Rules of Civil Procedure.
The motion judge found that a registered mortgage between the garnishee and the judgment debtor constituted evidence of a legitimate debt and rejected the garnishee's sole director's testimony that the mortgage was a sham, on credibility grounds.
The Court of Appeal found no palpable and overriding error in the motion judge's credibility findings or factual conclusions and held that the equitable and discretionary nature of garnishment does not constitute an independent basis to find a debt where none exists.
The appeal was dismissed with costs.
