Cash Stop Loans v. Bayley Date:, 2014 BCPC 274

Citation: Cash Stop Loans v. Bayley Date: 20141125 2014 BCPC 0274 File No: 40205 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Small Claims Court) BETWEEN: CASH STOP LOANS INC. CLAIMANT AND: RANDOLPH SIDNEY PATRICK BAYLEY DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L.S. MARCHAND Appearing for the Claimant: S. Craddock Appearing for the Defendant: C. Lynch Place of Hearing: Kamloops , B.C. Date of Hearing: November 10, 2014 Date of Judgment: November 25, 2014

INTRODUCTION [1] On August 25, 2014, Cash Stop Loans Inc. (“Cash Stop”) obtained a Default Judgment in the amount of $647.96, includingcosts, against Randolph Bayley. On August 27, 2014, Cash Stop served a Garnishing Order (After Judgment) on the TD Canada Trust(“TD”) branch on Tranquille Road in Kamloops in the amount of $718.96, which included further costs of $71 for the attachmentproceedings. [2] There were sufficient funds in Mr. Bayley’s TD account on August 27, 2014 to satisfy the Garnishing Order but TD did nothonour the Garnishing Order on the basis that the funds in Mr.

Bayley’s account were Canada Pension Plan (“CPP”) and Old AgeSecurity (“OAS”) benefits and, therefore, exempt from attachment. Cash Stop seeks a Garnishing Order Absolute against TD to compelTD to make good on the Garnishing Order which, according to Cash Stop, TD should have honoured. ANALYSIS [3] Sections 65(1) and (1.1) of the Canada Pension Plan, R.S.C., 1985, c. C-8, provide as follows: 65.

(1) A benefit shall not be assigned, charged, attached, anticipated or given as security, and any transaction purporting to assign,charge, attach, anticipate or give as security a benefit is void.

(1.1) A benefit is exempt from seizure and execution, either at law or in equity. [4] Sections 36(1) and (1.1) of the Old Age Security Act, R.S.C., 1985, c. O-9, contain identical wording with respect to OASbenefits. [5] The issue before me is whether ss. 65(1) and (1.1) of the Canada Pension Plan ss. 36(1) and (1.1) of the Old Age Security Actcontinue to exempt benefits payable under those Acts from attachment once the benefits are deposited into a recipient’s bank account. [6] In Metropolitan Toronto (Municipality) v. O’Brien, (ON SC), [1995] O.J.

No. 4896 (S.C.) and Szalavetz v.Gordon, 2008 QCCQ 11698, the courts held that CPP and OAS benefits that can be identified as such do not lose their character and arenot subject to attachment even after they are deposited into a recipient’s bank account. [7] In this case, the evidence is clear that Mr. Bayley had essentially no balance in his TD account on August 27, 2014 untildeposits of $587.88 and $972.95 were made into his account for CPP and OAS benefits respectively. These amounts are easilyidentifiable as the only funds in Mr.

Bayley’s account and, applying the reasoning in the O’Brien and Szalavetz decisions, these fundswere exempt from attachment. [8] Accordingly, I dismiss Cash Stop’s application for a Garnishing Order Absolute against TD. __________________________ L.S. Marchand Provincial Court Judge