Prejudgment Garnishment in BC: Freezing Bank Accounts Before Judgment
In debt claims, winning a judgment is only part of the challenge. A lawsuit is only valuable if you can ultimately collect what you are owed. If the debtor has moved or spent their money before the case is decided, even a successful judgment may be difficult to enforce. For that reason, British Columbia law provides creditors with a powerful remedy known as prejudgment garnishment. In the right circumstances, it allows you to freeze money held in the debtor’s bank account before the court determines who ultimately succeeds in the lawsuit. I. What Is Prejudgment Garnishment? When Is It Available? A prejudgment garnishing order is a court order from a court registrar directing a bank to freeze money held in a debtor’s account and pay those funds into court. The money remains protected until the litigation is resolved or the court orders otherwise. Because the order is usually obtained without advance notice to the debtor, it prevents the debtor from withdrawing or transferring funds before the bank receives the order. This element of surprise is often what makes prejudgment garnishment such an effective recovery tool. Prejudgment garnishment is not available in every case. It is intended for claims involving a debt or other liquidated demand. In other words, it is available where a fixed amount of money is already due and can be determined through a straightforward calculation. Common examples include unpaid loans, unpaid invoices, amounts owing under written contracts, and other fixed payment obligations. If, however, the amount claimed depends on you proving damages, estimating losses, or resolving disputed calculations, your claim may not qualify for prejudgment garnishment. II. How Does the Process Work? In many cases, as the creditor you can apply for a prejudgment garnishing order as soon as you sue. Your application must be supported by an affidavit confirming, amongst other things, the nature of the claim; the exact amount owing after all proper credits and deductions have been made; and the financial institution and branch where the debtor’s account is believed to be held. You must also identify the correct bank branch, and this is essential for this remedy to work. In practice, this information is often obtained from previously issued cheques, bank statements, electronic transfer records, prior business dealings, or other reliable sources. Keep in mind that it is absolutely critical to identify the specific bank branch where the debtor holds their account. Identifying the correct branch is essential. Under the applicable court rules, the garnishing order must identify and be served on the financial institution in the manner required by the Rules. If the wrong branch is identified, the order may not attach to the funds and the application may ultimately prove ineffective. Once the order is issued and served on the bank, any funds that the order attaches to are frozen and paid into court pending the outcome of the litigation. III. Will the Order Always Recover Money? Not necessarily. The garnishing order only reaches funds that are available in the account when the order is served. If the account has little or no balance, or if the bank has a prior claim to the funds because the debtor owes money to the bank, there may be little or nothing available to garnish. IV. Is Your Claim Eligible? Thus, time is often an acute risk for creditors. Once a debtor becomes aware of a lawsuit, assets can sometimes be transferred or depleted before judgment is obtained. Prejudgment garnishment helps reduce that risk by preserving available funds at the outset of the litigation. In the right case, it can significantly improve the likelihood of collecting a judgment and may also encourage an earlier resolution of the dispute. If you are owed a fixed amount of money and are considering legal action, prejudgment garnishment may be available to protect your interests before the case reaches trial. Early legal advice is important. Prejudgment garnishment is often the first strategic decision made in a debt recovery action. It is not appropriate in every case, and careful planning is required before an application is made. In many cases, whether the remedy is available will influence how the lawsuit is articulated, what evidence is gathered before filing, and when proceedings are commenced. Acting quickly can significantly improve the prospects of recovery.
How to Access and Correct Information in Police Files
Imagine this. You are a professional wanting to move up in your niche field. Your next job requires an enhanced security clearance from a federal agency. You have had security and reliability clearance checks done for previous jobs, you are not worried and expect to clear the enhanced clearance. You do the paperwork, confirm references, attend interviews with the agency and the employer, and wait for few weeks, expecting the clearance to come through. Instead, you get a notice from your new employer stating that your enhanced security clearance failed, so you don’t qualify for the new job. You look into it, and you are told something to the effect of “there was a police file opened years ago, and while no charges were filed and the file is considered closed, in databases the file remains open for administrative reasons.” This blogpost discusses what to do in circumstances like this, i.e., how to access records held by the police, and how to request correction or annotation of the information. For our purposes, I use the Vancouver Police Department (“VPD”) and the Royal Canadian Mounted Police (“RCMP”) to explain the procedure. Each police agency, local or federal, have distinct regimes and requirements, so what applies in the context of VPD may not apply to Victoria or Abbotsford police departments, for instance. These administrative law processes are cumbersome and tricky to navigate, often requiring a lawyer’s assistance. Please do not hesitate to reach out if you need help with accessing and correcting your information. I. Access to Records Access to records held by provincial agencies are governed by the Freedom of Information and Protection of Privacy Act (the “FIPPA”),[1] Under FIPPA, you are required to request the records directly from the VPD by clearly and concisely stating in writing that you seek such pertinent records as defined by FIPPA, indicating the record’s type and date (or range of date). Respecting the VPD, you will need to request your file through the FIPPA mechanism, either using the prescribed form or through a letter. You may mail, fax, or e-mail these documents. I will do this on your behalf. You will need to give the VPD the statutory time of 30 days to respond.[2] It should not take more than 30 days. Access to records held by federal agencies are governed by federal legislation. The RCMP requires that you make a formal access request, under the federal Privacy Act[3] and the Access to Information Act,[4] to access your personal information held by them. You may do this by mailing in the prescribed form or by filing an Access to Information and Privacy (ATIP) Online Request through the Treasury Board of Canada’s online portal. You will need to create an ATIP account to request your personal information. Because the RCMP is a nation-wide agency, the search is done by division, detachment, program, or employee who holds the records in question. Accordingly, they may request more particulars than provided or may take longer than 30 days to respond to our request. Keep in mind that the standard of service by which both the VPD and the RCMP are required to respond to your request is that of a “reasonable effort.” This means that both police services are to put a reasonable effort in finding the requested records. That said, the RCMP is highly likely to longer than 30 days to respond due to operational constraints, including but not limited to the agency’s paper-based processes, the order in which the request was received, the ongoing backlog, etc. Once you make an online request via the ATIP portal, the ATIP branch in Ottawa opens a file, and identifies and asks the employee responsible for the records. Expect them to ask for more time to collect those records, and you have to comply or else they simply close the file. Once all relevant materials are search and catalogued, they are reviewed for exemptions and exclusions under the two federal enactments. They will give you the records requested, provide you a letter explaining the exemptions and exclusions, or both. Keep also in mind that any personal information of a third party will be redacted if providing that information would be an unreasonable invasion of their privacy. Similarly, if there is information that if released could harm another law enforcement matter, then such information will be redacted. That said, there are successful cases where third party information has been released if the applicant already knows such information. Consider the following case. Order 01-53[5], which helpfully outlines the procedural nuances of section 22 of the FIPPA:[6] “[17] … Section 22(1) of the Act provides that a public body must refuse to disclose personal information the disclosure of which would unreasonably invade third-party personal privacy… [22] 3.3 How Section 22 is Applied – When a public body is considering the application of s. 22, it must first determine whether the information in question is personal information within the Act’s definition of “personal information”. [23] The next step in the s. 22 analysis is to determine whether disclosure of the personal information would be an unreasonable invasion of a third party’s personal privacy. The public body must consider whether disclosure of the disputed information is considered, under s. 22(4) of the Act, not to result in an unreasonable invasion of third-party privacy. … [24] Next, the public body must decide whether disclosure of the disputed information is, under s. 22(3), presumed to cause an unreasonable invasion of privacy. According to s. 22(2), the public body then must consider all relevant circumstances in determining whether disclosure would unreasonably invade personal privacy, including the circumstances set out in s. 22(2). The relevant circumstances may or may not rebut any presumed unreasonable invasion of privacy under s. 22(3) or lead to the conclusion that disclosure would not otherwise cause an unreasonable invasion of personal privacy. [25] …There is no basis in the Act for a zone or cloak of confidentiality. The question of whether information can or
Delay May Bar Judicial Review of Building & Development Permits in BC
When challenging a government decision through judicial review, timing can be just as important as the strength of the legal arguments. Courts have repeatedly emphasized that judicial review applications must be brought promptly, particularly where the decision being challenged affects public administration, local government processes, or the rights and expectations of others. Delay, however, does not automatically prevent a court from hearing a case. Instead, courts examine whether the delay was reasonable, whether there is a credible explanation supported by evidence, and whether allowing the review to proceed would undermine the need for certainty and finality in administrative decision-making. This article explores how British Columbia courts approach delay in judicial review proceedings, including the factors courts consider, examples of when delays have been excused, circumstances where late petitions were dismissed, and evidence supporting the reasonableness of delay. I. The Law on Delay in Judicial Review of Building Permits Jurisprudence strongly favours timely filing of review petitions respecting local government decisions, especially where there is statutory intent for expediency and certainty. Delays of months have been held as unreasonable, while delays of years have been held both inordinate and unreasonable. There are cases where petitions were not dismissed despite prolonged delays, but they are far, far fewer than cases on dismissal for delay. What follows is a breakdown of the law in this area, and please note that words such as “timeliness,” “delay,” “time-barred,” “barred by passage of time,” “effluxion of time,” and “dilatoriness” refer to the primary issue of delay in commencing a judicial review application. In Beedie (Keefer Street) Holdings Ltd. v. Vancouver (City),[1] the petitioner Beedie Holdings Ltd. sought a judicial review, on grounds of bad faith and procedural fairness,[2] with respect to a decision by the City of Vancouver to deny a development permit application for a 9-storey mixed residential-retail building in Vancouver’s Chinatown neighbourhood.[3] Note the timeline: the City denied the application in November 2017, and Beedie filed the petition in August 2019. In March 2020, Beedie applied to have its petition converted into an action, but it was denied in September 2020. Beedie further appealed that decision in April 2021, and the petition was eventually heard in June 2022.[4] In this case, the City argued, amongst other things, that Beedie’s petition ought to be dismissed for delay, for Beedie allowed “over 21 months to pass after the…decision before filing its petition…,” and Beedie’s explanation for delay was unsatisfactory and accordingly prejudicial to the City.[5] Beedie argued that delay on its part was reasonable and justified, because City officials had indicated a desire to discuss with Beedie how the parties might avoid litigation,[6] and it had provided examples of correspondence “involving City officials and its representatives in which the City expressed an apparent willingness to consider alternative solutions.”[7] Beedie denied that the City was prejudiced by the timing of Beedie’s petition.[8] The court applied section 11 of the Judicial Review Procedure Act (the “JRPA”)[9] as a starting point,[10] which, as discussed later on, provides that passage of time will not defeat a judicial review application unless “an enactment otherwise provides,” and the court considers that “substantial prejudice or hardship will result to [the City]” by reason of delay.[11] Crucially, however, the factors for reasonableness of delay favoured Beedie. The relevant factors in the analysis of unreasonable delay were:[12] length and reasons for delay; the extent to which delay undermines the objectives of the underlying administrative scheme; importance of the matter to the parties; hardship, prejudice, or injustice resulting from delay or dismissal of a potentially meritorious review; and interest of justice (collectively, the “Lowe Factors”). I will return to these decisive factors later on, but in the interim note that the court considered these factors to Beedie’s favour:[13] “[41] … I conclude that this is not a case where I should exercise my residual discretion to summarily dismiss Beedie’s petition because of delay. In particular, the issue of whether the Project should be built on the culturally significant Property is critical to both parties. The delay cannot be said to undermine the City’s development permitting regime when it is apparent that the City was content to entertain post-Board decision discussions with Beedie that could have resulted in some form of development on the Property or elsewhere. I also do not accept that the City’s modification to the HA-1A zoning and its potential impact on the Court’s remedial authority on judicial review constitutes prejudice to the City that might justify a timeliness objection; if anything, it is Beedie, as the party seeking a remedy, that could be prejudiced by this legislative modification.” In other words, the City’s delay arguments failed because both parties deserve clarity on the critical issue of the proposed building design being an appropriate fit within the neighbourhood’s cultural context; and there were contemporaneous discussions between parties for alternatives solutions to the denied development permit. Beedie prevailed in this case: the petition was allowed, the City’s decision to dismiss Beedie’s application was set aside, and the City was ordered to reconsider Beedie’s application in accordance with the court’s ruling.[14] II. Lowe Factors: The Common Law Test Lowe v. Diebolt is the seminal case on the issue of reasonableness of delay in bringing judicial review proceedings. The Lowe Factors constitute the common law test for delay being a discretionary bar to judicial review. In Lowe, the petition was dismissed for six-month delay on grounds being unjustified considering this non-exhaustive list of factors. The Lowe Factors must be weighed and assessed as a whole, for no single factor is determinative in assessing whether delay should result in a preliminary dismissal.[15] The Lowe Factors were cited with approval in Powers v. British Columbia (Superintendent of Motor Vehicles),[16] where the court held the petitioner’s delay of 19 months to be unreasonable given the length of and lack of reasonable explanation for delay.[17] The petitioner did not adduce any evidence, let alone a reasonable explanation, to explain this delay. For clarity, there is no requirement in the Lowe