Court File and Parties

COURT FILE NO.: CV-22-802 DATE: 2023/05/24 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

The Bank of Nova Scotia, Judgment Creditor – and – Edith M. Robson aka Edith Matilda Robson, Judgment Debtor

Todd R. Christensen, for the Judgment Creditor – and – Kevin Allan Leslie Spink and Meridian Credit Union Limited, Third Parties with Interest of Information

HEARD: May 1, 2023

The Honourable Justice M. J. Valente

Decision on Motion

[1] The Bank of Nova Scotia (‘BNS’) in its capacity as judgment creditor, seeks an order for a reference to conduct the sale of the judgment debtor’s real property. BNS seeks this relief as opposed to disposing of the judgment debtor’s lands by means of a sheriff’s sale to enforce its money judgment. BNS also seeks an order that the joint tenancy of the judgment debtor with her spouse in the subject lands be severed. None of the judgment debtor or the third parties appeared on the motion before me.

[2] In the past year I have considered two similar motions advanced by BNS for an order directing a reference. In each of those motions, like the motion before me, BNS relies in part on the decision of Justice Broad in Canaccede International Acquisitions Ltd. v. Abdullah, 2015 ONSC 5553 (‘Canaccede’). In considering the reference remedy as opposed to execution by means of the sheriff’s sale process, Justice Broad found in Canaccede that this Court:

“…has inherent jurisdiction to make an appropriate order which will do justice between the parties…and should do so where the circumstances warrant it, in the absence of binding authority or an overriding policy reason constraining it from following such a course.” (at para 27).

[3] Based on the facts before him, Justice Broad found “special circumstances” existed to warrant the ordering of the reference and the judicial sale process. Specifically, Justice Broad determined that where a judgment creditor is prevented from obtaining the information it requires to initiate a sheriff’s sale by virtue of the operation of the Personal Information Protection and Electronic Documents Act, SC 2000, c. 5, (‘PIPEDA’) special circumstances existed, permitting the Court to exercise its jurisdiction to order the reference.

[4] In the first of the earlier BNS motions considered by me, I did not find there to be any special circumstances or impediments to the sheriff’s sale process, and therefore, dismissed the relief sought by the judgment creditor (see: BNS v. Persaud, CV-21-1478, at Kitchener). In my second unreported decision, BNS v. Shahabiaski, CV-21-599, at Kitchener (“Shahabiaski”), respecting this same issue, however, I concluded that based on the facts before me, special circumstances existed sufficient to permit the reference/judicial sale process.

[5] In particular, BNS offered into evidence the affidavit of lawyer, Murray Nightingale, who has been a member of the bar since 1986 and who has conducted sheriff’s sales since the mid 1990’s. Based on the admittedly untested evidence of Mr. Nightingale I was persuaded that the sheriff’s sale process is more often than not a cumbersome, expensive, and ineffective means to realize on judgment debtors’ property whereas on the other hand, the reference/judicial sale process is a more expeditious and less expensive way for judgment creditors to successfully sell the real property of debtors. In the end, I concluded that the negative characteristics of the sheriff’s sale process, as described by Mr. Nightingale, amounted to an impediment to the employment of that process, triggering the exercise of this Court’s discretion to order a reference.

[6] In determining the BNS motion before me this day, the decisions of Justice Kurz in RBC v. Wong, 2022 ONSC 54 (‘Wong’), and RBC v. Hammond, 2022 ONSC 4579 (‘Hammond’) have been brought to my attention. In each of Wong and Hammond the moving creditor applied to enforce its judgment through a reference. I have also reconsidered the decision of Justice Broad in Canaccede.

[7] I agree with the analysis of Justice Kurz that in Canaccede, Justice Broad found that ordinarily to engage the reference/judicial sale process, there must be:

a. an impediment to the employment of a sheriff’s sale which Justice Broad referred to as “special circumstances”; and b. a benefit to the employment of an equitable receiver that would make their use just and equitable (see: Hammond, at para 16).

[8] To my mind, it is reasonable that an impediment to the employment of the sheriff’s sale process exist before the court turn to an alternative remedy. As Justice Kurz correctly states in both Wong and Hammond the Legislature, through the Execution Act R.S.O. 1990, c. E.24 (the ‘Execution Act’), has identified the sheriff’s sale process as its preferred mechanism for the enforcement of a writ of seizure and sale against real property (see: Hammond, at para 21 a). While the Execution Act may be silent on when a judicial sale is to be undertaken, it sets out approved procedures for the enforcement of a writ of seizure and sale by means of a sheriff’s sale. Therefore, as Justice Kurz found in Wong, “it is easy to infer the Legislature intended these procedures to prevail…over a common law process” absent special circumstances (at para 32).

[9] Upon further reflection, I am also of the opinion that because the Legislature signalled its choice of the sheriff’s sale as the means to enforce a writ of seizure and sale, any impediment to the employment of its preferred process must be of a legal nature as it was in Canaccede where Justice Broad was faced with the obstacles created by PIPEDA until the Supreme Court of Canada’s decision in Royal Bank of Canada v. Tang, 2016 SCC 50. In other words, a seemingly more expeditious and less expensive alternative process does not in itself create the necessary special circumstance to trigger the engagement of the reference/judicial sale process as I had decided in Shahabiaski.

[10] While the factors cited in Shahabiaski may indeed favour the reference remedy as being just and equitable, in my opinion, they do not amount to an impediment to employing the Legislature’s chosen vehicle for enforcement. In these circumstances, and upon further reflection, I concur with Justice Gray in Luu v Abuomar, 2016 ONSC 4299, that:

“if the procedures under the Execution Act are inconvenient, it is up to the court to determine whether the inconvenience can be overcome by tailoring the sale procedures under the Execution Act, rather than simply coming up with an alternative procedure to avoid the Execution Act process altogether” (at para 70).

[11] Therefore, because BNS does not offer any evidence of an impediment to the Legislature’s chosen vehicle for enforcement of a writ of seizure and sale sufficient to qualify as the “special circumstances” referenced by Justice Broad in Canaccede but rather, relies solely on the evidence of Mr. Nightingale to establish that the reference/judicial sale process is just and equitable, I am not prepared to grant the requested order for a reference.

[12] I now turn my mind to the BNS request for an order severing the joint tenancy.

[13] While I acknowledge that BNS has filed a writ of seizure and sale against the debtor’s real property, it is well established that the filing of a writ if execution does not by itself result in the severance of a joint tenancy (see: Maimits v. Welliams, (1997), 11 R.P.R. (3d) 276 (Ont. C.A.)). As Justice Perell found in Royal & Sun Alliance Insurance Co. v. Muir, 2011 ONSC 2273, the execution creditor must take sufficient steps to execute the judgment against the debtor’s interest in the lands to severe the joint tenancy (at para 26). In his submissions, counsel for BNS agreed with me that were I to dismiss the request for a reference, sufficient steps would not have been taken by the judgment creditor to sever the joint tenancy. Accordingly, I am not prepared to find in the circumstances of this case that the joint tenancy has been severed. Although there is no evidence in the record of any urgency in this respect, the moving party may wish to consider its remedies under the Partition Act, R.S.O. 1990, c. P. 4.

[14] Accordingly, for all of the above noted reasons the motion is dismissed without costs.

M.J. Valente J. Released: May 24, 2023