COURT OF APPEAL FOR ONTARIO DATE: 20240911 DOCKET: M55206 (COA-22-CV-0457) Lauwers, Zarnett and Thorburn JJ.A.
BETWEEN
Anouk Benzacar Applicant (Appellant/Responding Party)
and
Ira Terk Respondent (Respondent)
and
6990371 Canada Inc., 6044402 NB Ltd ., and 4106971 Canada Inc. (Respondents/Moving Party)
Counsel: Christopher A.L. Caruana, for the moving party 6044402 NB Ltd. Chris MacLeod and N. Joan Kasozi, for the responding party Anouk Benzacar
Heard: in writing
REASONS FOR DECISION
Introduction
[1] 604402 NB Ltd. (“604”) unsuccessfully resisted an appeal in this court concerning its obligations in a garnishment proceeding, and unsuccessfully sought leave to appeal that decision to the Supreme Court of Canada: Benzacar v. Terk, 2023 ONCA 773, 489 D.L.R. (4th) 540, leave to appeal refused, [2024] S.C.C.A. No. 17 (“Benzacar 2023”).
[2] 604 now moves for reconsideration of our court’s decision which, in relevant part, required it to pay the sheriff $256,143.49 less any amounts it had already paid under a garnishment notice that had been served on 604 by the responding party, Ms. Benzacar. Asserting that reconsideration is open to it as no formal order reflecting our decision has been taken out, 604 wants a “do-over” of the mathematics that underlie the calculation of the amount it must pay, and the substitution of a lower amount – $76,945.85, less amounts already paid.
[3] Although this court has jurisdiction to reconsider a decision before a formal order has been taken out, the circumstances under which it will do so are narrow and limited. “The party seeking to re-open an appeal after the appeal decision has been rendered faces a ‘high hurdle’…. The court will re-open an appeal prior to the entering of the order only in the rare circumstance where it is in the interests of justice to withdraw the reasons of the court and re-hear the case on the merits”: McGrath v. Joy, 2023 ONCA 46, 166 O.R. (3d) 302, at para. 15 (internal citations omitted).
[4] As we explain below, 604 has not come close to raising the type of rare circumstance in which the interests of justice require reconsideration. Its motion must therefore be dismissed.
Procedural Context
[5] The decision that 604 wishes reconsidered arose from Ms. Benzacar’s attempt to enforce a longstanding judgment debt owed to her by the respondent Ira Terk, by garnishment of amounts owing to Mr. Terk by 604.
[6] In 2017, Ms. Benzacar obtained a notice of garnishment directed to 604, stating the amount of the debt owed to her by Mr. Terk was $256,143.49. Mr. Terk was an employee, director and officer of 604. He was entitled to salary and a car allowance from 604. However, 604’s garnishee statement indicated that nothing was owing to Mr. Terk and did not indicate that amounts would become owing.
[7] Disputes about how the garnishment notice was responded to by 604 were among the issues decided by Vella J. (the motion judge). She granted Ms. Benzacar certain relief but denied other relief. [1]
[8] One of the remedies the motion judge did not grant was the remedy in r. 60.08(17) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. That subrule provides:
Where the garnishee does not pay to the sheriff the amount set out in the notice of garnishment as owing by the garnishee to the debtor and does not serve and file a garnishee’s statement, the creditor is entitled on motion to the court, on notice to the garnishee, to an order against the garnishee for payment of the amount that the court finds is payable to the debtor by the garnishee, or the amount set out in the notice, whichever is less.
[9] Ms. Benzacar appealed to this court, seeking to enlarge the relief granted, and specifically asking this court to grant the remedy in r. 60.08(17).
The Decision in Benzacar 2023
[10] We summarize those parts of Benzacar 2023 germane to the request to reconsider.
[11] At para. 24, we noted the unchallenged finding of the motion judge that only 60% of Mr. Terk’s wages were exempt from garnishment:
The motion judge then turned to whether any wages payable by the garnishees to Mr. Terk should be subject to an exemption from seizure or garnishment less than the presumptive 80% provided for by s. 7(2) of the Wages Act. She held that it was just in the circumstances to reduce the exemption to 60% pursuant to the discretion to do so under s. 7(4) of the Wages Act. [Emphasis added.]
[12] At para. 25, we summarized the motion judge’s findings about Mr. Terk’s employment entitlements:
The motion judge then found that, prior to the issuance of the notices of garnishment, Mr. Terk was earning approximately $220,000 per year plus an automobile allowance. Before 2017, 604 paid 50% of this amount, with a related company paying the other 50%; after that, 604 became the sole payor of Mr. Terk’s salary. The motion judge found that Mr. Terk stopped receiving the “full $220,000 per year plus car allowance” from 604 after Ms. Benzacar applied to enforce the Quebec judgment in Ontario…. [2]
[13] At para. 48, we found that because Mr. Terk had never waived his entitlement to salary or car allowance, the fact that he stopped taking it in full when Ms. Benzacar started pressing for enforcement of what he owed her did not mean the unpaid salary amounts were not owing to him.
[14] At para. 51, we concluded: (i) that the motion judge erred in not finding that 604’s garnishee statement was materially false without reasonable justification; (ii) that this was the legal equivalent of it having filed no statement at all; and (iii) that Ms. Benzacar was therefore entitled to the r. 60.08(17) remedy.
[15] We found that the amount payable to Mr. Terk by 604, at the time of the hearing before the motion judge, exceeded the amount stated in the notice of garnishment. At para. 56 we explained how the amount payable was arrived at:
I agree with Ms. Benzacar’s argument that what was payable by 604 to Mr. Terk exceeded what was paid and exceeded the amount in the notice of garnishment. As Ms. Benzacar points out, the motion judge found that the salary arrangements in place for Mr. Terk prior to service of the notice of garnishment called for payments of $220,000 per year plus car allowance. The entitlement is supported by a corporate resolution of 604’s parent company calling for Mr. Terk to be paid these amounts. As Ms. Benzacar notes, there is no evidence of any resolution modifying this entitlement. Accordingly, Mr. Terk’s legal entitlement to salary was, in the relevant time frame, always for these amounts, which clearly exceeds what he was paid. The accumulation of salary (pre and post notice of garnishment) from the period when the motion judge found he stopped taking his full salary in 2016 to the time of the motion judge’s decision almost six years later totals more than the amount in the notice ($256,143.49), even after giving effect to the Wages Act exemption as determined by the motion judge, and any amounts she found had actually been paid. [Emphasis added.]
[16] As the amount that was payable by 604 to Mr. Terk at the relevant time exceeded the amount in the notice of garnishment, the motion judge’s order was varied to “direct that 604 shall pay the sheriff the amount of $256,143.49 [the amount in the notice of garnishment], less any amounts it has paid to date to the sheriff under the garnishment notice”: at para. 57.
The Unsuccessful Application for Leave to Appeal and the Absence of a Formal Order
[17] On January 23, 2024, 604 filed an application for leave to appeal to the Supreme Court of Canada. It included a draft order reflecting the above disposition. According to 604, Ms. Benzacar’s counsel had prepared a draft order, and 604’s counsel had provided comments on it. The Rules of the Supreme Court of Canada, SOR/2002-156 require an application for leave to contain “the formal judgments or orders, as signed and entered” and “if the formal judgments or orders have not been signed and entered, all draft orders, the final versions of which must be filed separately immediately after they are signed and entered”: r. 25(1).
[18] Nonetheless, no signed and entered order was obtained. Both sides claim it was the other’s responsibility to obtain it.
[19] The Supreme Court dismissed the application for leave to appeal on August 8, 2024.
The Motion to Reconsider
[20] In May 2024, almost six months after the decision in Benzacar 2023, and while its application for leave to appeal to the Supreme Court was pending, 604 launched a motion to this court for reconsideration. The thrust of the request was that a formal order reflecting this court’s decision had not been taken out, and it was therefore open to us to reconsider “the mathematical amount” of the judgment granted. In this regard, 604 submitted that it owed Mr. Terk, at the time of the hearing before the motion judge, less than the amount in the notice of garnishment, not more. The r. 60.08(17) remedy should have been limited to that lesser amount, for which 604 supplies an alternative calculation. That calculation is said to be drawn from evidence already in the appeal record, but explained, formatted and re-presented in an affidavit that was not part of the appeal record.
[21] A briefing schedule to determine the reconsideration motion was set following the Supreme Court’s dismissal of the leave application, with the final step – 604’s written reply – received on September 5, 2024.
Analysis
[22] There are three reasons why 604’s request for reconsideration fails. First, there is an absence of arguable merit in the substance of the request. Second, the request is simply an attempt to repackage and reargue matters that were clearly in issue in the original appeal hearing. Third, the interests of finality strongly favour the rejection of the motion.
[23] The nub of 604’s argument that in November 2022 – the time of the hearing before the motion judge – a lower amount was owing by it to Mr. Terk than $256,143.46 is summarized in a chart provided in 604’s affidavit and factum for this motion. In Appendix A to this decision we have reproduced the chart from 604’s factum.
[24] The total said to be payable in the chart – $76,945.85 – is the product of two assumptions that run directly contrary to the findings of this court and the motion judge.
[25] As the fourth column of the chart shows, the amount payable is calculated as though 604 is responsible for only 50% of the salary. But this was neither the finding of the motion judge nor of this court. As set out above, another company paid 50% of Mr. Terk’s salary before 2017 – after that, 604 was the sole payor. 604 is properly treated as 100% responsible for the salary entitlements during the relevant period. Indeed, recognizing that using 50% may be an issue, 604 provides an alternative calculation with 604 being 100% responsible for the salary, increasing the amount payable to $146,844.34. [3]
[26] Moreover, as the fifth column shows, the chart utilizes an 80% exemption from seizure for wages, treating only 20% of the salary entitlements that were owing as amounts payable. But as noted above, the motion judge held the exemption was 60%, not 80%. That determination was not challenged on appeal. In other words, 40%, not 20%, should have been used to calculate the amount payable. This doubles the amount payable that 604 otherwise calculates. For example, its calculation of $146,844.34 as the amount payable using an 80% exemption/20% payable approach becomes $293,688.68 when a 60% exemption/40% payable approach is used.
[27] In other words, adjusting for these two matters, the ultimate amount payable clearly exceeds the amount in the notice of garnishment.
[28] In any event, the availability and applicability of the remedy in r. 60.08(17) were front and centre on the appeal from the motion judge’s order. 604 had the full opportunity to argue that if the remedy was applicable, the amount payable should be calculated as lower than that in Ms. Benzacar’s notice of garnishment at the hearing. It is not entitled to simply reorganize the material that was already in evidence and try again.
[29] 604 is not really raising issues of mathematical calculation but is indirectly attempting to skirt around findings that underlie and drive the result of the mathematics. 604 may disagree with the concurrent finding of the motion judge and this court that 604 was the sole payor of Mr. Terk’s salary during the relevant time, or with the motion judge’s unappealed determination that the Wages Act exemption applied to only 60%, rather than 80%, of his salary. But “[t]he losing party’s disagreement with the court’s reasons is not a ‘rare circumstance’ in appellate litigation” justifying reconsideration: Meridian Credit Union Limited v. Baig, 2016 ONCA 942, at para. 8.
[30] The “normal and proper” recourse for a party who wishes to challenge this court’s reasons is to seek leave to appeal to the Supreme Court of Canada: Meridian, at para. 8. This is the route 604 pursued, unsuccessfully. Although a decision on leave is not a comment on the correctness of the decision from which leave was sought, 604 has had the recourse the law contemplates.
[31] The narrow path to reconsideration left open by the absence of a formal order becomes, if anything, even narrower when a party has had a lengthy opportunity to take out a final order and does not do so while pursuing leave to appeal to the Supreme Court. At some point, the interests of finality trump the desire of a litigant to keep the litigation pot boiling. That point has been reached in this case.
Disposition
[32] The motion to reconsider is dismissed. If the parties are unable to agree on the costs of the motion they may make written submissions, not exceeding 3 pages each, within 10 days of the release of these reasons.
“P. Lauwers J.A.”
“B. Zarnett J.A.”
“Thorburn J.A.”
Appendix A
| Time Period | Gross Salary Payable | Net Salary Payable | 50% Net Salary Payable By 604 | 20% Wages Act |
|---|---|---|---|---|
| Nov-Dec 2016 | $38,166.68 ($9,541.67 x 4) | $23,491.20 ($5,872.80 x 4; DAS max paid) | $11,745.60 | $2,349.12 |
| 2017 | $58,285.91 ($229,000 less $55,089.11 + $115,624.98 paid) | $35,236.80 ($5,872.80 x 6; DAS max paid) | $35,236.80 (same due to CBTVI payments made to ECC) | $7,047.36 |
| 2018 | $229,000 ($9,541.67 x 24) | $137,447.86 | $68,723.93 | $13,744.79 |
| 2019 | $229,000 ($9,541.67 x 24) | $137,447.86 | $68,723.93 | $13,744.79 |
| 2020 | $229,000 ($9,541.67 x 24) | $137,447.86 | $68,723.93 | $13,744.79 |
| 2021 | $229,000 ($9,541.67 x 24) | $137,447.86 | $68,723.93 | $13,744.79 |
| Jan 1 to Nov 30 2022 | $209,916.74 ($9,541.67 x 22) | $125,702.26 ($5,872.80 x 22-3,499.34) | $62,851.13 | $12,570.23 |
| Total | $76,945.85 |
[1] 2022 ONSC 6338.
[2] The motion judge also found that starting in 2019, Mr. Terk resumed receiving some payments on account of salary, a part of which was remitted to the sheriff by 604.
[3] 604 derives this amount by essentially doubling the amount in its chart and then making a reduction for of $7,047.36 which it says is necessary to avoid double counting of an amount paid by a different entity.