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Who Am I
Corporations and individuals often carry on business under a name and style that is different from the legal name of the corporation or individual. When commencing an action or garnishing, we prefer to use the actual name of the entity rather than the name and style and, accordingly, we conduct appropriate searches to confirm the actual name. What happens if the name and style is used instead? The answer, like all other answers in law, is that it depends on the situation.
One such situation arose in Cina v. Ultratech Tools and Gauge Inc., a 2001 decision of the Ontario Superior Court of Justice.
Garnishment
When the Toronto-Dominion Bank took over Canada Trust, it did not merge with it. The Canada Trust Company, Canada Trustco Mortgage Company, The Toronto-Dominion Bank, and two of its subsidiaries still exist as separate entities. They do business under the name of TD Canada Trust.
A creditor garnished TD Canada Trust. Nobody paid under the garnishment. The creditor then brought a motion under the Rules of Civil Procedure requiring TD Canada Trust to pay all of the judgment debt of $31,000. Counsel for The Toronto-Dominion Bank appeared on the motion and argued that the garnishment was improper. It should have named one or all of the five corporations that carry on business as TD Canada Trust.
No Way
The judge noted that section 42(3) of the Bank Act specifically authorises a bank to carry on business by a name other than its own name. Accordingly, a garnishment using that name was valid against all entities carrying on business under the name.
The judge held that all five corporations were liable to pay the lesser of the judgment debt and whatever monies were owed by any of them to the debtor on the date of the garnishment. The judge also awarded the creditor $1,500 for costs.
Judges like to see, as much as possible, that justice is done in accordance with the law. As long as the law gives some support for a decision, a judge generally will not allow a technical position to prevail over common sense.