CITATION: 1731393 Ontario Ltd. v. Strmota, 2014 ONSC 6729
DIVISIONAL COURT FILE NO.: 415/14
DATE: 20141119
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
1731393 Ontario Ltd., operating as THOMKESS CRANE RENTALS
Plaintiff
– and –
ROBERT STRMOTA; ALL SEASON HOMES LTD.; ALL BINS INC.; JOE COLAVITA; JOE COLAVITA a/o HYLAND RENTALS; JOE COLAVITA o/a JC REPAIR & RENTALS LTD.; ROYAL BAILIFF SERVICE INC.; and ONTARIO LEGAL RECOVERY LTD.
Defendants
Edward L. Burlew, for the Plaintiff
Richard A. Campbell, for the Defendant, Ontario Legal Recovery
HEARD at Toronto: November 19, 2014
MORAWETZ R.S.J. (orally)
[1] The defendant, Ontario Legal Recovery Ltd. (“OLR”), brings this motion for an order pursuant to Rule 62.02(2), if required, granting an extension to the time for service of this motion; an order pursuant to Rule 62.02(4)(a) granting OLR leave to appeal from the Order of the Honourable Justice Belobaba made September 30, 2014, dismissing OLR’s motion for summary judgment against the plaintiff on the grounds that there is a conflicting decision by another judge in Ontario on the subject matter of the proposed appeal, and it is desirable that leave to appeal be granted. OLR also seeks an order pursuant to Rule 62.02(4)(b) granting leave to appeal from the Order of Belobaba J. on the grounds that there is good reason to doubt the correctness of the Order and the appeal involves matters of general importance, beyond the interests of the parties to the action.
[2] On the first issue, the OLR takes the position that Belobaba J. was presented with the decision of the Divisional Court in Canada (Attorney General) v. Tremblay, [2001] O.J. No. 2827 (Div. Ct.), and in particular the comment that “the (statutory) immunity … can only be defeated by evidence of bad faith.” In this case, OLR takes the position that there is no evidence of bad faith, therefore the bona fides of OLR are not in issue in this proceeding.
[3] OLR submits that the Divisional Court in Tremblay stated that, absent an allegation in reference to bad faith, there is no genuine issue for trial, and an order for summary judgment is the appropriate remedy.
[4] OLR submits that Belobaba J. was bound by the decision in Tremblay, and that for His Honour to fail to grant summary judgment in favour of OLR in the circumstance amounts to an error of law.
[5] I am unable to accept this submission. I am in agreement with the comments of Belobaba J. as expressed in para. 8 of his decision:
I do not agree. First, Canada (AG) v. Tremblay, is distinguishable because the defendant correctional authority complied with the court order exactly as issued and there was no allegation or evidence of bad faith. Here, OLR did not comply with the writ of seizure as issued. The level of non-compliance on the part of OLR was not of a technical or typographical nature such as seizing property located at “47 Yorkdale Road” when the writ of seizure mistakenly said “47 Yorkdale Street.” Here the property was seized from a person and place not even named in the writ of seizure. This cannot be an act that was done in good faith in accordance with a court-issued order.
[6] There is no dispute that the writ of seizure issued by the Registrar of this Court on February 23, 2011, specifically noted the respondents as Joe Colavita, operating as JC Repair and Rentals Limited, at an address of 47 Yorkdale Cres., Toronto, Ontario M5M 1C2. On the second page of the writ, it clearly states that the address of “person in possession of the article” is 47 Yorkdale Cres., Toronto, Ontario.
[7] There is no dispute that OLR seized the property from the Thomkess Crane job site in Cambridge, Ontario. Further, neither Thomkess nor the address of the site is named on the Court issued writ of seizure.
[8] In view of the clear directions provided by the Court Order under which OLR is authorized to act, the actions of OLR were not performed in accordance with a court issued order. The words “in accordance with an order” have to be given a common sense interpretation. In these circumstances, the acts of OLR were not, in my view, in accordance with the Court order.
[9] When faced with the clear facts that the equipment was in a location far removed from Yorkdale Cres. and faced with the Thomkess argument that it was the owner of the equipment, the Court Order did not authorize OLR to seize the equipment in Cambridge.
[10] OLR, in my view, went beyond the authority of the writ of seizure by seizing from a person not named in the writ and at a place not named. These actions of OLR are sufficient to support the comments of Belobaba J. in respect of either not acting in good faith or acting in bad faith. I am in complete agreement with the comments of Belobaba J. at para. 11 of his Reasons:
In my view, if one is not acting in good faith, then one is acting in bad faith. But I do not have to resolve this definitional nuance. It is sufficient for the purposes of this motion that OLR has not persuaded me on the evidence presented that the seizure of the truck crane from the Thomkess job site in Cambridge was done in good faith in accordance with a court order. I am not persuaded that seizing property from a person and place not named in the court-issued writ of seizure is in fact a commercially reasonable practice in the bailiff and repossession trade, or in law within the scope of the clear language of s. 142 of the Courts of Justice Act.
[11] In my view, Belobaba J. has properly distinguished the case of Tremblay and the conclusions of Tremblay are not applicable in this case. In my view, there is no conflicting decision and accordingly, the first submission for leave to appeal fails.
[12] With respect to the second submission, OLR submits that in order to bring clarity to the issue and in order to settle the law with respect to the exposure of private bailiffs to liability for their actions in furtherance of Court orders, it is desirable that leave to appeal be granted.
[13] OLR also contends that there is good reason to doubt the correctness of the order of Belobaba J. OLR submits that Belobaba J. failed to follow the clear statement of the Divisional Court that absent evidence of good faith on the part of the person acting pursuant to a Court order, there would be no genuine issue for trial.
[14] My comments regarding Tremblay and s. 142 of the Courts of Justice Act need not be repeated. In my view, OLR went beyond its authority when it knowingly seized the equipment at a site that was not set out in the writ of seizure, which was incorporated in the Court Order. I have not been persuaded that there is good reason to doubt the correctness of the Order of Belobaba J.
[15] With respect to the contention of the appellants that the decision of Belobaba J. has broad impact on the rights of secured creditors across the Province and involves matters which are of critical importance to a wide range of people, I cannot give effect to this submission. Simply put, if OLR had followed the directions set out in the writ of seizure incorporated in the Order of Spence J., the issue before the Court would not have arisen.
[16] For the foregoing reasons, the motion for leave to appeal the Order of Belobaba J. is dismissed with costs in the agreed amount of $2,500 inclusive of disbursements and HST, payable by OLR within 30 days.
MORAWETZ R.S.J.
Date of Reasons for Judgment: November 19, 2014
Date of Release: November 21, 2014
CITATION: 1731393 Ontario Ltd. v. Strmota, 2014 ONSC 6729
DIVISIONAL COURT FILE NO.: 415/14
DATE: 20141119
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MORAWETZ R.S.J.
BETWEEN:
1731393 Ontario Ltd., operating as THOMKESS CRANE RENTALS
Plaintiff
– and –
ROBERT STRMOTA; ALL SEASON HOMES LTD.; ALL BINS INC.; JOE COLAVITA; JOE COLAVITA a/o HYLAND RENTALS; JOE COLAVITA o/a JC REPAIR & RENTALS LTD.; ROYAL BAILIFF SERVICE INC.; and ONTARIO LEGAL RECOVERY LTD.
Defendants
ORAL REASONS FOR JUDGMENT
MORAWETZ R.S.J.
Date of Reasons for Judgment: November 19, 2014
Date of Release: November 21, 2014