CITATION: Zeppieri & Associates v. Jabbari, 2014 ONSC 818
DIVISIONAL COURT FILE NO.: 283/13
DATE: 20140204
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
A.C.J.S.C. MARROCCO, SACHS AND NORDHEIMER JJ.
BETWEEN:
ZEPPIERI & ASSOCIATES
Applicant
– and –
SAHAR JABBARI
Respondent
Gregory Gryguc, for the Applicant
No One Appearing
HEARD at Toronto: February 4, 2014
ORAL REASONS FOR JUDGMENT
NORDHEIMER J. (orally)
[1] The applicant seeks judicial review of the decision of a deputy judge of the Small Claims Court who refused to allow the applicant to proceed with an examination of the respondent/debtor under rule 20.10 of the Small Claims Court Rules. The respondent did not appear on this application.
[2] The examination began before the Deputy Judge but it was interrupted early on when the debtor advised that she was receiving social assistance of some type. At this point, the deputy judge advised counsel for the applicant that he could not proceed with the examination. When asked the basis for her decision, the Deputy Judge responded “Because she’s on public assistance”. When counsel for the applicant pressed on the issue, the Deputy Judge added “If she’s on welfare, we do not proceed with enforcements”.
[3] Counsel for the applicant asked for written reasons for the Deputy Judge’s decision. The Deputy Judge said that she would provide an endorsement. The endorsement provided simply says “JDE cannot proceed due to debtor being on public assistance”. The endorsement did go on to provide that the debtor had to advise the creditor of when the debtor was no longer receiving those benefits.
[4] The Deputy Judge did not provide the authority for her conclusion, either during the hearing or in her endorsement. There is nothing in rule 20.10 of the Small Claims Court Rules that would provide any foundation for the order. The rule provides that a creditor may examine a debtor if there is a default in payment under an order. The rule goes on to list the subjects upon which the debtor can be examined including the debtor’s income and the debtor’s present, past and future means to satisfy the order.
[5] There is nothing in the Small Claims Court Rules that carves out of their application the situation where a debtor is receiving social assistance or welfare of some kind. It may be that if that is the debtor’s situation, the creditor may not have any enforcement remedies available but that is a different question to be addressed at a different time. The purpose underlying the examination is to find out just that type of information. There is also, of course, always the possibility that the examination may unearth information regarding the debtor’s assets of which the government agency that granted the social assistance or welfare was unaware. I would note that it may well be that this whole issue would have been avoided had the debtor completed the financial information form that is required under rule 20.10(4.1) or had the Deputy Judge acceded to the request for an adjournment so that the debtor could provide further information to the creditor.
[6] The point is that the order of the Deputy Judge frustrates the very purpose underlying the right to examine. There is no authority for that order and the Deputy Judge acted in excess of her jurisdiction in granting it.
[7] The application is allowed, the order of the Deputy Judge is set aside and an order will go for a further examination before a different Deputy Judge.
NORDHEIMER J.
A.C.J.S.C. MARROCCO
SACHS J.
Date of Reasons for Judgment: February 4, 2014
Date of Release: February 6, 2014
CITATION: Zeppieri & Associates v. Jabbari, 2014 ONSC 818
DIVISIONAL COURT FILE NO.: 283/13
DATE: 20140204
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
A.C.J.S.C. MARROCCO, SACHS AND NORDHEIMER JJ.
BETWEEN:
ZEPPIERI & ASSOCIATES
Applicant
– and –
SAHAR JABBARI
Respondent
ORAL REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Reasons for Judgment: February 4, 2014
Date of Release: February 6, 2014