COURT FILE NO.: 07-CV-333735 PDI

DATE: 20121120

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Horace McBean, Plaintiff

AND

Quartus Putel Griffin also known as Quartus Griffin and Judy Abraham, Defendants

BEFORE: Justice E.M. Morgan

COUNSEL:
Norman Epstein , for the Plaintiff

Lawrence Goldapple , for the Defendant Quartus Putel Griffin

HEARD: November 19, 2012

ENDORSEMENT

[ 1 ] The Plaintiff has obtained judgment against the Defendant, Quartus Putel Griffin (“Griffin”) in the amount of $90,219.86, with per diem interest accruing in the amount of $27.42 and costs in the amount of $45,000.00. In addition, during the course of the litigation a number of other cost awards were granted against Griffin. None of the outstanding amounts have been paid by Griffin.

[ 2 ] As judgment creditor, the Plaintiff has filed Writs of Seizure and Sale with the Sheriff of the City of Toronto with respect to a property owned jointly by Griffin and his spouse, Gladys Griffin, at 21 Lakeland Crescent, Toronto. The Plaintiff wishes to provide a Direction to Enforce to the Sheriff in order for the Sheriff to conduct a sale of the property. This would allow the Plaintiff to realize out of the equity of redemption in the property some or all of the debt owed by Griffin.

[ 3 ] As a precondition of conducting a sale, the Sheriff requires an up to date statement from the mortgagees of the property as to the balances outstanding. To date, Griffin has been unwilling to provide any such mortgage statements or to direct the mortgagees to provide current statements to the Sheriff.

[ 4 ] In an attempt to obtain the relevant mortgage information on the property, the Plaintiff served Gladys Griffin with a Notice of Examination for March 30, 2012. She did not attend at the examination. On June 1, 2012, the Plaintiff brought a motion against Gladys Griffin under Rule 60.18(6) for leave to examine a person other than a judgment debtor with respect to the debtor’s ability to satisfy the judgment.

[ 5 ] The motion was heard by Master Muir, who dismissed it. He reasoned that the Plaintiff had provided no evidence of any attempt to obtain the information directly from Griffin, who is the judgment debtor. The Master indicated that in order to obtain an Order under Rule 60.18(6), it must be established to the court’s satisfaction that there has been “difficulty regarding the enforcement” of an Order or Judgment. In the absence of evidence of Griffin’s refusal to provide the relevant mortgage statements or to attend at a judgment debtor examination, the motion for leave to examine Gladys Griffin was refused.

[ 6 ] Heeding the advice of the learned Master, the Plaintiff then served a Notice of Examination on Griffin for July 10, 2012. Griffin responded by sending Plaintiff’s counsel a two-line email stating that he would be unavailable to be examined on July 10 th , but that he would be available during the week of September 14 to September 21, 2012. Despite the lack of any explanation in Griffin’s email, the Plaintiff sought to accommodate him and re-scheduled the examination for a date on which Griffin had said he would be available. The Plaintiff served Griffin with a new Notice of Examination for September 14 th and booked a court reporter for that purpose.

[ 7 ] On the afternoon of September 13 th , Plaintiff’s counsel received an email from Mr. Lawrence Goldapple, the same lawyer that had represented Gladys Griffin at the motion before Master Muir. Mr. Goldapple stated that he had been requested to advise Plaintiff’s counsel that Griffin was out of the country and would not be available to attend the examination the next day. Up until that point, Griffin had been self-represented in his dealings with this Judgment and the examination.

[ 8 ] Mr. Goldapple went on in his email to inform Plaintiff’s counsel that, “You will be advised further as to when Mr. Griffin will be returning to Toronto.” To date no such advice has been forthcoming. Indeed, even at the hearing of the motion Mr. Goldapple was unable to advise the court as to when Griffin might be returning to Toronto.

[ 9 ] As noted above, Plaintiff’s counsel had re-scheduled the examination for one of the few days that Griffin had said he is available. Nevertheless, Mr. Goldapple also went on to state in his email that, “I am advised that the date was set without first confirming Mr. Griffin’s availability for that specific date.” It may be that Mr. Goldapple was unaware that September 14 th was a date actually requested by his own client and that Griffin had neglected to inform him of that. However, Griffin’s position in requesting a date and then rejecting it strikes me as a rather evasive approach to a party’s obligations in the litigation process.

[ 10 ] In his motion record, Griffin (now represented on record by Mr. Goldapple) has submitted a letter from a physician who indicates that he has examined Griffin in his office on the island of Nevis and that Griffin suffers from high blood pressure and related ailments. The letter is dated September 10, 2012, three days before Mr. Goldapple wrote to Plaintiff’s counsel about the inability of Griffin to attend at the judgment debtor examination.

[ 11 ] An updated letter from the same doctor was submitted by Mr. Goldapple at the hearing of the motion. The doctor indicates that Griffin is still in Nevis and that “[h]e has been advised to avoid physically and emotionally stressful situations including any unnecessary travel.

[ 12 ] During the course of the motion I asked Mr. Goldapple why his client, knowing that he had legal obligations and had been served with a Notice of Examination, had consulted a doctor in a foreign country rather than here in Toronto. Mr. Goldapple replied forthrightly, explaining that Griffin had gone to the Caribbean to relax.

[ 13 ] I understand that a party in litigation may also have to attend to his or her medical needs. However, I do not consider an indefinite period of relaxation in the Caribbean to be an adequate response to the Plaintiff’s motion. Griffin’s course of conduct over the past several months gives me no confidence that he will ever attend voluntarily at a judgment debtor examination or disclose the mortgage information that the Plaintiff requires in order to realize on his judgment.

[ 14 ] The Plaintiff requests two forms of relief: a) an Order that Griffin attend at his own expense an examination in aid of execution; and b) an Order that Griffin provide a written consent to the mortgagees of 21 Lakeland Crescent, Toronto, to provide the Plaintiff with all details of the mortgage debts.

[ 15 ] I am doubtful that a court has authority to grant the Plaintiff’s second head of relief. A consent has to be consensual; it cannot be compelled by court Order. That said, it seems to me that the Plaintiff has now more than enough evidence in hand to demonstrate that there has been “difficulty regarding the enforcement”, as Master Muir put it. The parties with the relevant mortgage information would seem to be the co-owner of the property, Gladys Griffin, or the mortgagees themselves.

[ 16 ] Both parties’ counsel concede that the mortgage companies are wary about disclosing information about a mortgage debt to anyone other than the debtor himself due to the operation of Ontario’s privacy legislation. The Personal Information Protection and Electronic Documents Act (“PIPEDA”) would seem to prohibit banks and other organizations from making precisely the type of voluntary disclosure that the Plaintiff seeks. It is little wonder, therefore, that the Plaintiff cannot obtain the up to date mortgage statements by simply asking the mortgagees for them.

[ 17 ] The Court of Appeal has pointed out in Citi Cards Canada Inc. v. Pleasance , 2011 ONCA 3 , at para. 29 , that under PIPEDA “[a]n organization may disclose personal information…only if the disclosure is [authorized by one of the exemptions]”. Those exemptions are contained in section 7.3 of PIPEDA. That section provides, inter alia , that disclosure of information is permitted by an organization such as Griffin’s mortgagees where that disclosure is “required to comply with a subpoena or warrant issued or an order made by a court…” The Plaintiff did not join the mortgagees as respondents to the motion before me, but he is of course free to do so at a future date.

[ 18 ] As for the Plaintiff’s first head of relief, that is a reasonable request under the circumstances. Griffin has been served with a valid Notice of Examination for an examination scheduled on a date of his own choosing, and has failed to attend. The Plaintiff has taken out a certificate of non-attendance. The remedy for this is that Griffin be ordered to re-attend. I require him to attend at an examination in aid of execution on an examination date to be chosen by the Plaintiff.

[ 19 ] The Plaintiff shall provide Griffin, through Mr. Goldapple (whether or not Mr. Goldapple is still counsel of record for Griffin at that time), with a Notice of Examination setting out the new examination date at least ten days prior to the date of the examination. If Griffin then fails to attend yet again, the Plaintiff will have to consider moving for a more harsh sanction against him.

[ 20 ] The Plaintiff shall have his costs of today’s motion in the amount of $3,000.00, inclusive of tax and disbursements.

Morgan, J.

Date: November 20, 2012