DIVISIONAL COURT FILE NO.: 227/09
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HERMAN J.
BETWEEN:
JACK HORNSTEIN
Applicant
(Appellant)
– and –
ALTERNA SAVINGS
Respondent
Adriana Hornstein, In Person
Robert G. Tanner, for the Respondent
HEARD at Toronto: November 25, 2010
HERMAN J.
[1]
Introduction
This is an appeal from the judgment of Kilian J., dated April 7, 2009 in which the Judge dismissed the claim of Mr. Hornstein.
2Unfortunately, Mr. Hornstein is currently receiving medical treatment and was unable to attend. Mr. Hornstein’s wife, Mrs. Hornstein attended on his behalf and indicated that her husband wanted the appeal to proceed today in his absence.
3The appellant claims that the trial judge made three errors:
(i) The trial judge erred when he concluded that Alterna Savings had no obligation to decide whether the funds in the account were exempt from garnishment;
(ii) The trial judge erred when he said that the plaintiff could have taken steps to stop the money being forwarded to the Sheriff; and
(iii) The judge deprived Mrs. Hornstein of the opportunity to present evidence and to cross-examine.
(i) Obligation of Alterna Savings
[4]
(i) Obligation of Alterna Savings
The plaintiff submits that the case of Metropolitan Toronto v. O’Brien 1995 7053 (ON SC), [1995] O.J. No. 4896, stands for the proposition that a financial institution is required to determine whether the funds are exempt from garnishment prior to forwarding those funds to the Sheriff. In that case the bank decided not to remit funds because they were pension funds and were exempt for seizure. The Court rejected the argument that the exemption was lost because the funds were electronically deposited. While the Court in that case noted that the garnishee had acted commendably in not forwarding the funds, the Court did not say that the garnishee had an obligation to do so.
5I was not referred to any authority for the appellant’s proposition that the financial institution in this case had a duty to determine whether the funds were subject to an exemption. I cannot conclude that the trial judge erred in this regard.
(ii) The Judge erred when he said that the plaintiff could have taken steps to stop the money being forwarded to the Sheriff
[6]
(ii) The Judge erred when he said that the plaintiff could have taken steps to stop the money being forwarded to the Sheriff
In the reasons, the trial judge noted the distinct delay of time in the plaintiff taking action. The trial judge referred to the plaintiff’s testimony that he went to the bank when he found the money was not there and he was told that the money was on hold. At that time, the money had not yet been released. The plaintiff did not bring his motion until sometime later. Deference is owed to the findings of a trial judge absent a palpable and overriding error. I cannot conclude that the trial judge’s interpretation of the evidence that was before him during the trial was indeed a palpable and overriding error.
(iii) The judge deprived Mrs. Hornstein of the opportunity to present evidence and to cross examine
[7]
(iii) The judge deprived Mrs. Hornstein of the opportunity to present evidence and to cross examine
During the course of Mr. Hornstein’s testimony, he indicated that he would prefer that his wife explain certain things. After he testified, Mrs. Hornstein had the opportunity to testify. There is no indication in the transcript of the trial that her ability to give evidence was in any way limited or impeded. The fact that Mrs. Hornstein did not give evidence immediately at the point when Mr. Hornstein said he would prefer that she explain certain things but, instead, was given the opportunity to testify after the conclusion of Mr. Hornstein’s testimony is not a denial of the right to present evidence.
8Furthermore, the appellant was not denied the right to cross examine because there were no defence witnesses to cross examine. At the completion of Mrs. Hornstein’s testimony, there being no defence witnesses, both the plaintiff and the defendant were given the opportunity to make submissions.
9In these circumstances, I cannot conclude that there was any denial of the plaintiff’s right to present evidence or to make submissions.
10I would add that the trial judge also concluded that, in any case, the plaintiff had not established that any damages flowed from the bank’s actions. The plaintiff has not established that the trial judge made any palpable or overriding errors in reaching this conclusion.
[11]
Conclusion
I conclude that the appellant has not established that the trial judge made either errors of law or palpable and overriding errors of fact.
12The appeal is therefore dismissed.
[13]
Costs
I have endorsed the Appeal Book as follows, “For oral reasons given today, this appeal is dismissed. The respondent claims costs on a partial indemnity basis of $3,510.16. The appellant says that no costs should be awarded because financial institutions should not forward funds that are exempt from garnishment. It is nonetheless, the case that costs normally flow to the successful party and the appeal was not successful. The respondent was put to costs to defend it. In the circumstances, costs of $1,000, inclusive, are awarded to the respondent, payable within 30 days.”
HERMAN J.
Date of Reasons for Judgment: November 25, 2010
Date of Release: December 8, 2010
CITATION: Hornstein v. Alterna Savings, 2010 ONSC 6543
DIVISIONAL COURT FILE NO.: 227/09
DATE: 20101125
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HERMAN J.
BETWEEN:
JACK HORNSTEIN
Applicant
(Appellant)
– and –
ALTERNA SAVINGS
Respondent
ORAL REASONS FOR JUDGMENT
HERMAN J.
Date of Reasons for Judgment: November 25, 2010
Date of Release: December 8, 2010