SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-10-405689

DATE: 20140417

RE: TAYLOR-MADE ENTERPRISES INC., Plaintiff

AND:

LANCE REFFELL and 7112629 CANADA LTD., Defendants

AND:

COMDA, also carrying on business as SOS Marketing, Garnishee

BEFORE: STEWART J.

COUNSEL:
Anthony J. O’Brien, for the Creditor/Plaintiff

Allan Herman, for the Garnishee/Respondent

HEARD: September 24, 2013

ENDORSEMENT

[1] Taylor-Made Enterprises Inc. seeks judgment and an order requiring the Garnishee to pay to it the amount set out in the Notice of Garnishment served upon it. In the alternative, Taylor-Made seeks an order requiring the Garnishee to provide all records in regard to its arrangement with Lance Reffell and 7112629 Canada Ltd. and in regard to sales made by them on behalf of SOS Marketing.

[2] The Garnishee resists the motion, arguing that Reffell did not work for SOS Marketing and as a result there is no basis for granting the relief sought.

[3] Each party before me filed supplementary affidavits following cross-examinations. No request for adjournment was made. Rather than delay the hearing and in order to have a full record on this motion, leave was granted to allow the additional material to form part of the record on the motion.

[4] When examined under oath as a judgment debtor, Reffell swore that he worked for SOS Marketing. The evidence presented by the Plaintiff on the motion including the sales documentation received from the Garnishee demonstrates that he conducted sales from the Garnishee’s premises using the Garnishee’s telephone and computer system. Reffell indicated that the processing of purchase orders and collection of receivables all took place and were conducted by the Garnishee and that he received payment either by cash or cheque from the Garnishee for the sales that he conducted. Reffell’s sales relationship with the Garnishee was terminated in December 2012.

[5] The Garnishee takes the position that Reffell did not work for it. Rather, it argues that Reffell worked for 1346403 Ontario Limited and was paid by means of cheques issued by the company.

[6] 1346403 Ontario Limited, a separate and distinct entity which occupies space within the business premises of the Garnishee, is described as the Garnishee’s sales agent. The Garnishee takes the position that the Plaintiff ought to have pursued that particular company under its Judgment as the proper garnishee, and not the Garnishee.

[7] Garnishment is an equitable remedy and the court may make whatever order it deems just in the particular circumstances (see: Waxman v. Waxman, (2006) O.J. No. 4242 (Ont. C.A.)). The process is designed to be as just, efficient and expeditious as possible.

[8] In my view, for the reasons set forth in the Plaintiff’s facta and submissions, the evidence before me amply supports the conclusion that Reffell sold the products of SOS Marketing and worked for it, and I so find. He worked from its office, sold its products, used its computers, benefitted from its accounting and invoice system and was effectively paid by it as a result of his efforts.

[9] I agree with the Plaintiff that whatever obligations may have been intended to be avoided by structuring the relationship between Reffell and COMDA/ SOS/1346403 Ontario Limited in this way, those which flow from a judgment obtained by creditors such as the Plaintiff cannot be allowed to be among them.

[10] The amounts earned by Reffell in selling the products of SOS, invoiced by SOS and for which funds were collected by SOS are subject to the garnishment process as against Reffell and should have been paid the Sheriff subject to a dispute by the debtor and the Plaintiff or any other plaintiff who wished to advance a claim against those funds and the Garnishee. In disregarding the garnishment and in continuing to allow payments under the sales contracts to Reffell the Garnishee denied the Plaintiff the ability to execute on its judgment.

[11] As a result, the Plaintiff is entitled to judgment against the Garnishee for payments made to Reffell for sales of SOS Marketing products during the period of the garnishment in accordance with the Notice of Garnishment.

[12] The Plaintiff is also entitled to an accounting to determine the precise amount owing. If the parties cannot agree on the amount owing, such accounting may be carried out on a reference to the Master, pursuant to Rule 55.

[13] If the parties cannot agree on the subject of costs, written submissions may be delivered by the Plaintiff within 20 days of the date of this decision, and by the Garnishee within 15 days thereafter.

STEWART J.

Date: April 17, 2014