COURT FILE NO.: 476/08
DATE: 20090514
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: NEIL RICHARD EMERSON v. REGISTRAR (Bailiffs Act, R.S.O. c. B.2)
BEFORE: Justices Lederman, Bellamy & Karakatsanis
COUNSEL: Dale Fitzpatrick, for the Applicant
Rebecca Rosenberg, for the Respondent
HEARD AT TORONTO: April 1, 2009
E N D O R S E M E N T
BY THE COURT
[1] This is an appeal from interim and final decisions of the License Appeal Tribunal dated August 22 and October 9, 2008, ordering the Registrar, Bailiff’s Act, to carry out his proposal to revoke the appointment of Bailiff, Neil Emerson.
[2] On February 6, 2008, the Registrar of Bailiffs sent the appellant a Notice of Proposal to Revoke his appointment, alleging that the appellant “has not acted, or is without capacity to act, responsibly as a bailiff” in two incidents, pursuant to s.9(b) of the Bailiffs Act, R.S.O. 1990, c. B 2 (the Act). The Notice of Proposal alleged that the appellant had used force in the exercise of a self-help remedy in December 2002, in relation to the Mr. J.W. complaint and in November 2006 in relation to the Ms. V.M. complaint. Following the investigation of the first incident, the Registrar and the Investigator cautioned the appellant in writing that a recurrence of similar conduct would result in a Proposal to Revoke his appointment.
[3] After a hearing, the Tribunal found that the appellant did not act responsibly on the two occasions and directed the Registrar to revoke his appointment as bailiff. The appellant appeals on a number of grounds. Given our conclusions, we address only the following issues:
Did the Tribunal err or act unreasonably in finding the conduct of the appellant unlawful and, therefore, irresponsible in the V.M. complaint?
Did the Tribunal err or act unreasonably in making a finding of irresponsible conduct in the J.W. complaint?
The V.M. Complaint
(a) Background Facts
[4] Ms. V.M. and Ms. J.F. were engaged in a business enterprise that used equipment owned by or leased to J.F. The equipment was located at commercial premises that had been leased in the name of V.M.
[5] When the parties decided to terminate their business relationship, a dispute arose over the equipment. While V.M. was out of the country, J.F. used her key to the premises at night and removed a considerable amount of equipment. V.M.’s daughter, who was managing the business in her mother’s absence, was worried that J.F. would return to take out all of the equipment necessary to run the business and, therefore, she had the locks changed.
[6] J.F. received advice from her lawyer about retrieving the balance of the equipment. He advised her that she was within her rights to invoke a self-help remedy and to enter the premises and remove her equipment. She consulted with the appellant for this purpose and he recommended that she obtain a second legal opinion. She sought a second opinion from another lawyer who confirmed that, as going through the court system was a lengthy process, a self-help remedy was lawful and that she had the right to enter the premises and retrieve her equipment, by picking the locks if necessary.
[7] The appellant assisted her in this regard. He first advised the police in advance that J.F., with his assistance, was going to enter the premises and recover some goods, and he wanted to alert the police that the alarm system might go off. In fact, a police officer did attend at the scene and was present when the appellant instructed a locksmith to pick the lock. After doing so, J.F. gained entry to the premises and removed the equipment in question. They had the locksmith re-key the lock and J.F. left the key for the new lock in V.M.’s mailbox.
(b) Tribunal’s Findings
[8] The Tribunal found that the appellant was acting clearly in his role as a bailiff and used his position as a bailiff to assist J.F. in what the Tribunal found to be an unlawful entry.
[9] At page 22 of its interim decision, the Tribunal stated:
In summary, the Tribunal concludes that the applicant made or assisted in an unlawful entry of V.M.’s business premises, that this entry occurred after a previous unlawful entry and a written warning from the Registrar’s office concerning the use of force.
[10] The reference to the written warning was to the two letters of caution that had been sent to the appellant in 2005, in connection with the J.W. incident.
[11] As a result, the Tribunal found that the appellant had “not acted … responsibly as a bailiff” within the meaning of s.9(b) of the Act. At page 22, the Tribunal stated as follows:
Although it is, of course, impossible to enumerate all acts which would be considered irresponsible, the Tribunal finds that at the very minimum, the public has a right to expect that those entrusted with a role in the administration of the law will not break the law in carrying out their duties or assist others who might rely on their expertise, to carry out an unlawful act. The Tribunal finds that the Applicant failed to meet this standard and that the Registrar has satisfied the onus resting on him of proving on the balance of probabilities and with clear, convincing and cogent evidence that the Applicant failed to act responsibly while participating in JF’s unlawful entry.
[12] These conclusions by the Tribunal are premised on the fact that J.F. was engaged in an unlawful entry of the premises.
[13] However, such a conclusion runs counter to the Tribunal’s factual findings as to the nature of the business relationship between J.F. and V.M. At page 20, the Tribunal made the following finding:
The Tribunal accepts JF’s evidence relating to the nature of her relationship with VM in preference to the evidence of VM, which contained serious unexplained contradictions noted above. In the Tribunal’s view, there is no doubt that the equipment in question in this complaint belonged to JF at the time VM joined her as a partner or affiliate in business. Further, VM led no convincing evidence that she somehow acquired ownership of the equipment as a result of her monthly payments to JF. The Tribunal thus finds that, as in the JW Complaint, the Applicant’s client, JF, had a sufficient proprietary right in the personal property in question to justify the exercise of a right to recapture the goods at common law. The only question is whether that right was exercised legally or whether the changing of the lock on the complainant’s business premises involved more force than allowed by the common law. [Emphasis added.]
[14] The nature of their business relationship was described in evidence by J.F. as being one of partnership or affiliate in a joint business venture, and she testified that she had never been an employee of V.M. Specifically, as set out at page 15 of the interim decision, J.F. stated that their joint business agreement
… envisioned the continued use of the equipment JF had been using at that location while carrying on her business, the continuation of JF’s services to established clientele, and a sharing of profits and expenses in one manner or another. Both parties to the agreement had keys to the premises and it was certainly her opinion that each had an equal right to occupy the premises. [Emphasis added.]
[15] The Tribunal did not take issue with J.F.’s view that she had joint occupation rights.
[16] Notwithstanding J.F.’s evidence, the Tribunal based its conclusion that the entry was unlawful on the assumption that V.M. had sole and exclusive rights over the business premises.
[17] Having accepted J.F.’s evidence, such a conclusion is not reasonable. A person has the right to “break in” to his or her own premises.
[18] Given that what J.F. did was lawful, there was then no basis for the Tribunal to conclude that the appellant’s participation in J.F.’s picking the lock and entering the premises demonstrates a failure to act responsibly as a bailiff.
Standard of Review
[19] The nature of the question that the Tribunal was deciding was whether the appellant had failed to meet the standard of responsibility as a bailiff such as to justify the Registrar’s proposal to revoke his appointment. This is the kind of question that does not lend itself to one specific, particular result. Instead, it may give rise to a number of possible reasonable conclusions. The standard of review of this decision is, therefore, one of reasonableness. A court conducting a review for reasonableness inquires into the qualities that make the decision reasonable. (See Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9 at para. 47.) For the reasons stated above, with respect to the V.M. complaint, the Tribunal’s decision that the appellant participated in an unlawful entry and therefore acted irresponsibly cannot be reasonable given the factual findings that it accepted of J.F.’s view of the nature of the business relationship including her opinion that she had the right to occupy the premises.
The J.W. complaint
(a) Background Facts
[20] This complaint relates to the appellant’s actions in December 2002. The appellant attended at the premises of Mr. J.W. with Mr. J.P., a representative of the appellant’s finance company client, to repossess cars that were subject to a general security interest. The Tribunal found as a fact that immediate action was required by the finance company to prevent the continuation of illegal activity on the part of the complainant. After speaking with the company’s lawyer, J.P. received legal advice that the company had the right to cut the lock to get access to the property. As a result, J.P. directed the locksmith to cut the lock to gain entry. When J.W. returned, a struggle ensued involving the appellant. In January 2003, J.W. registered a complaint, alleging that the appellant had broken a lock to gain access to a property and had used force to re-possess cars that were subject to a general security interest.
[21] The investigation appears to have been inexplicably delayed and did not conclude until February 2005, at which point the investigator sent the appellant a Letter of Caution advising him that common law repossessions were to be carried out by “peaceful means” and “without force”. The investigator advised that the appellant’s actions were not acceptable and could be cause for the revocation of his appointment.
[22] The Tribunal noted that the appellant’s reply challenged the investigator’s conclusions and threatened legal proceedings. As a consequence, the Registrar then wrote to the appellant, re-iterating the caution that a further similar complaint may result in the revocation of his appointment.
(b) The Tribunal’s findings
[23] The Tribunal noted at page 17 of its decision that the real issue in this matter was whether “the facts surrounding these two incidents [the J.W. incident in 2002 and the V.M. incident four years later in 2006] support the Registrar’s allegation that the Applicant made an unlawful entry in each of these incidents and that this conduct was irresponsible.” The Tribunal assessed the evidence and found at page 19 of its decision that the appellant’s actions were unlawful in the Mr. J.W complaint. The Tribunal made a finding that “proceeding with a recapture [from J.W.] when there is a threat of violence is an irresponsible act”.
[24] It is not necessary to review whether the Tribunal erred in making such a finding, given our conclusion that it was administratively unfair for the Tribunal to consider the J.W. complaint as an independent basis to find that the appellant’s conduct was irresponsible and that his appointment should be revoked.
[25] The appellant raised the issue of delay before the Tribunal hearing (page 5) and again in his Notice of Appeal in this Court. While we do not agree that the limitation period for the laying of charges for offences under the Bailiff’s Act is applicable to the regulatory oversight by the Registrar and the Tribunal, in raising the issue of delay, the appellant was in effect raising an issue of procedural fairness. The appellant had been self-represented until just before the hearing of this appeal. As he had written in his factum, in his Affidavit dated May 12, 2008, he had sworn that the J.W complaint was “a matter that was addressed over five years ago, and should not have been allowed to be presented by the tribal [sic], I no longer have that file as I keep my files for five years and then they are shredded.”
[26] To the extent that the Tribunal made findings of unlawful conduct in the J.W. complaint, those findings related only to the Tribunal’s assessment of the conduct in the V.M. complaint. Indeed, the Tribunal correctly noted (at page 5 of its decision) the relevance of the first incident: “the fact that the Applicant received a Letter of Caution following a forceful entry several years prior to the present complaint is relevant and speaks to the question of the seriousness of the most recent complaint”. Furthermore, its discussion of responsible conduct at page 22 focused upon the findings of use of force and unlawful entry in the V.M. complaint, aggravated by the fact that it followed a written warning from the Registrar arising from the J.W. complaint.
[27] The J.W. complaint occurred in December 2002. The investigation was completed and the appellant received a Letter of Caution. Given the nature of the correspondence, he reasonably did not expect to be required to defend the substantive allegations in the future. The destruction of his records obviously prejudiced his ability to respond to those substantive allegations. The Tribunal was entitled to consider the Letter of Caution, and the appellant’s response to that Caution, in determining the seriousness of the V.M complaint and determining whether the appellant “has not acted, or is without capacity to act, responsibly as a bailiff”. However, in light of our conclusion that the V.M. complaint is not sustainable, the J.W. complaint cannot now independently found a separate independent ground to find irresponsible conduct and revoke the appointment.
Conclusion
[28] The appeal is, therefore, allowed and the Tribunal decisions and Order directing the Registrar to carry out his proposal to revoke the appellant’s licence as a bailiff are set aside.
[29] The appellant, having been successful, is entitled to his costs of the appeal fixed at $5,000, an amount agreed upon by counsel.
Lederman J.
Bellamy J.
Karakatsanis J.
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