1. Can an individual/private business garnish wages if a contract has been signed with the client agreeing to it?

There are several scenarios that must be examined in order to properly address this question, as each bears its own legal regime. However, in most situations, wages will not be susceptible of garnishment, as it is tantamount to a seizure of property.

Situation #1

According to s. 89 (Indian Act), the seizure of property on reserve is not possible by a “person” other than an “Indian” or a “band”. This is a right that cannot be contracted away since it is probably a matter of “public order” (see: Mitchell v. Sandy Bay Indian Band, [1990] S.C.R. 85). Therefore, in order for garnishment to succeed on a reserve, the garnishee must be either a non-“Indian” or not a “band”, otherwise they are protected by s. 89. Despite an entire “Indian” ownership, both corporations, and partnerships cannot by definition be considered “Indians”, and nor can they be “bands”, and are therefore beyond the protection of s. 89. A sole proprietorship owned by an Indian, on the other hand, is considered an Indian.

Situation #2

Assuming the garnishee and garnishor are both either an Indian or a band, (and are thus exempt from restrictions on garnishment/seizure), or in the alternative, that s. 89 does not apply, (in which case garnishment/seizure is according to applicable law) is the procedure for seizure by garnishment is governed by the Code of Civil Procedure, s. 625-650. A contractual agreement by a client permitting garnishment does not eliminate the required process of obtaining a judgment, which is the focus of this procedure; however, it will facilitate the burden of proof in that procedure.

Situation #3

In a third situation, let us assume [1] that the “client” is himself or herself an employee, and not a third party who entered into the contract, or did not enter into a contract with another other than his/her employee, and [2] that this contract does not violate rules of contract formation, or that consent was not vitiated, or that some other exception can be found to render the contract either void or invalid. In this scenario, the CCQ enables the contractual retention of monies. Retention, here, is different than garnishment, since no seizure is necessary. The employer is the one with whom the employee/client entered into a relationship, and the monies therefore need not be “seized” as they already are in the employer’s possession. However, a right of retention can only be contractually granted if it is not waiving a public order right. Since in an employment contract, one’s right to one’s wages is a matter of public order, the monies being retained must be something other than employment wages, however unlikely that may be. In this case, the following CCQ provisions on retention would apply.

Art. 1592

A party who, with the consent of the other party, has detention of property belonging to the latter has a right to retain it pending full-payment of his claim against him, if the claim is exigible and is directly related to the property of which he has detention.

 

Art. 1593(1)

The right of retention may be set up against anyone.

 

Art. 553. The following are exempt from seizure:

(7) Benefits payable under a supplemental pension plan to which an employer contributes on behalf of his employees, other amounts declared unseizable by an Act governing such plans and contributions paid or to be paid into such plans

Furthermore, under laws pertaining to bankruptcy in Quebec, a certain portion of salaries and wages based on the number of dependants are exempt from seizure as well. Therefore, the amount must be taken into consideration in each given situation.

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