A number of helpful reminders about pre-judgment garnishing orders come out in Justice Gomery’s decision in Shier v Copper Mountain Mining Corporation, 2023 BCSC 152.

The employee was dismissed for cause. Before serving his claim for wrongful dismissal, the plaintiff obtained a pre-judgment garnishing order of $1.574 million.

The employer successfully overturned the garnishing order. In doing so, Justice Gomery outlined helpful principles both respect to the substantive requirements for establishing a right to a pre-judgment garnishing order, as well as important practical reminders for this process.

The plaintiff was the former CFO and had a written employment agreement outlining guaranteed and contingent compensation. The employee alleged he had liquidated claim of $1.574 million based on the terms of the agreement, as well as an unliquidated claim for damages for breach of the agreement.

The garnishing order was overturned on the basis that it was not actually for a liquidated claim. The problem with the employee’s claim was that it asserted a debt claim of $1.574 million arising from the breach of the employment agreement, but also damages due to the employer’s breach of the agreement by withholding the $1.574 million.

The court found that the employee could not claim both in debt and for damages for breach of the agreement, at least not where the claim for damages encompasses an allegation of damage suffered by non-payment of the debt. The two claims are inconsistent as the debt claim presupposes the enforcement of the agreement, while the damages claim presupposes the termination of the agreement.

Assuming the employee was terminated without cause, he could claim for the amounts owing under the agreement, or treat his wrongful termination as a repudiation of the agreement and sue for damages. He could not do both.

The true nature of the employee’s claims was for damages at large. This was fatal to his prejudgment garnishment order. This is a helpful reminder about the importance of pleadings, particularly the relief sought in a claim. While it may be tempting to cover the field and plead all possible forms of relief, this case demonstrates that to do so may have unintended limitations for pre-trial relief.

The court also found that the garnishing order materials were deficient as they failed to attach the employment agreement. This evidence was material to the determination of the true character of his claim. This is a helpful reminder to ensure that all relevant material is included in the ex parte application.