Court of Appeal for Ontario

Date: 2017-11-06 Docket: C63624 Judges: MacFarland, Pepall and Pardu JJ.A.

Between

Patricia Anne Virc Applicant (Respondent)

and

Michael F. Blair Respondent (Appellant)

Counsel

Michael F. Blair, acting in person

Michael Kril-Mascarin, for the respondent

Heard: October 24, 2017

On Appeal

On appeal from the order of Justice David Jarvis of the Superior Court of Justice, dated March 20, 2017, with reasons reported at 2017 ONSC 1766.

Reasons for Decision

[1] The appellant, Michael Finley Lawrence Blair, appeals from the March 20, 2017 order of Jarvis J. dismissing the appellant's dispute of the garnishment of his pension benefits paid through the vehicle of a Retirement Compensation Arrangement (the "RCA") contractually negotiated between a trustee and his former employer (a company owned and controlled by the appellant).

[2] The appellant principally argues that his RCA is exempt from garnishment due to the provisions of the Pension Benefits Act, R.S.O. 1990, c. P.8 (the "PBA"). In the alternative, he argues that the garnishment of his RCA is limited to 50 percent under either the Wages Act, R.S.O. 1990, c. W.1 or the Family Responsibility and Support Arrears Act, S.O. 1996, c. 31. We would dismiss the appeal on all of these bases.

[3] Subsection 66(1) of the PBA protects from garnishment money payable under a "pension plan" as defined in the PBA. No protection is provided if the plan does not fall within the definition.

[4] Section 1 of the PBA defines "pension plan" as a plan organized and administered to provide pensions for employees, but excludes some pension arrangements, as well as "any other prescribed type of plan".

[5] "Prescribed" is defined in s. 1 of the PBA as meaning prescribed by the regulations.

[6] Subsection 47(3) of the PBA's General Regulation 909, R.R.O. 1990, states that a RCA as defined in s. 248(1) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) is exempted from the application of the PBA and its regulations.

[7] A senior trust officer for Royal Trust Corporation of Canada, who administers the RCA trust of which the appellant is the only beneficiary, confirmed that the appellant's plan is such a RCA. The appellant also admits that it is a RCA.

[8] As the appellant's plan is a RCA, the appellant cannot benefit from the provisions of the PBA to protect his RCA from garnishment.

[9] Nor are payments made through the RCA wages as defined by s. 1 of the Wages Act. Therefore provisions in the Wages Act restricting the percentage that can be seized do not apply. Also, because the garnishment is pursued in execution of a judgment for an equalization payment, provisions restricting the amount that can be garnished for support under the Wages Act or by the Director of the Family Responsibility Office under the Family Responsibility and Support Arrears Act are inapplicable.

[10] For these reasons, the appeal is dismissed. The appellant took no objection to the respondent's request of costs in the amount of $4,500 inclusive of disbursements and applicable tax, subject to filing a bill of costs.

"J. MacFarland J.A."

"S.E. Pepall J.A."

"G. Pardu J.A."