Chris MacLeod

The defendants brought a motion to dismiss a proposed class proceeding for delay pursuant to section 29.1 of the Class Proceedings Act, 1992.

They argued that the plaintiff had not filed a complete certification motion record or established a timetable within the first anniversary of the proceeding's commencement.

The plaintiff contended that extensive interlocutory proceedings related to a Mareva injunction, including timetables for affidavit exchange and cross-examinations, constituted "steps required to advance the proceeding." The court adopted a functional interpretation of section 29.1, finding that the injunction-related steps, which involved a deep dive into the merits and evidence relevant to certification, did indeed advance the proceeding.

Consequently, the defendants' motion to dismiss for delay was dismissed.

This is a costs endorsement following the dismissal of a motion for reconsideration.

The Court of Appeal for Ontario awarded costs of the motion for reconsideration on a partial indemnity basis in the amount of $2,389.95, inclusive of disbursements and applicable taxes, payable by 6044402 NB Ltd. to Anouk Benzacar.

6044402 NB Ltd. ("604") brought a motion to the Court of Appeal for reconsideration of a previous decision (Benzacar v. Terk, 2023 ONCA 773) concerning its obligations in a garnishment proceeding. 604 sought to recalculate the amount payable to the sheriff, arguing for a lower sum based on new mathematical arguments.

The Court dismissed the motion, finding no arguable merit in the request, that it was an attempt to reargue matters already in issue during the original appeal, and that the interests of finality strongly favoured rejection, especially given 604's unsuccessful application for leave to appeal to the Supreme Court of Canada.

The appellant, Anouk Benzacar, appealed a motion judge's decision regarding the enforcement of a judgment debt against her former spouse, Ira Terk, through garnishment of debts owed by his associated corporations, 6044402 NB Ltd. and 4106971 Canada Inc. The motion judge had found the garnishee statements filed by the corporations, prepared by Terk, to be deficient but not null and void, thus limiting the garnishment.

The Court of Appeal found that 6044402 NB Ltd.'s garnishee statement was materially false and lacked reasonable justification, rendering it equivalent to no statement at all under Rule 60.08(17) of the Rules of Civil Procedure.

This entitled the appellant to an order against 6044402 NB Ltd. for the full amount stated in the notice of garnishment.

The appeal was allowed, and the order below was varied accordingly.