SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-422406-A2

DATE: 20140903

RE: 1731393 Ontario Ltd., operating as Thomkess Crane Rentals / Plaintiff

AND:

Robert Strmota, All Season Homes Ltd., All Bins Inc., Joe Colavita o/a Hyland Rentals; Joe Colavita o/a JC Repair & Rentals Ltd., Royal Bailiff Service Inc., and Ontario Legal Recovery Ltd. / Defendants

AND:

Richard Hammond and Alex Flesias / Third Parties

BEFORE: Justice Edward P. Belobaba

COUNSEL: Richard Campbell for Ontario Legal Recovery Ltd. / Moving Party

Edward Burlew for 1731393 Ontario Ltd., o/a Thomkess Crane Rentals / Responding Party

HEARD: August 13 and 29, 2014

ENDORSEMENT

Motion for Summary Judgment by Ontario Legal Recovery Ltd

[1] Section 142 of the Courts of Justice Act[^1] provides statutory immunity for any act that is “done in good faith in accordance with an order or process of a court in Ontario.” If a bailiff seizes property from a person and place not named in the court-issued writ of seizure, does the bailiff come within the protection of s. 142?

[2] In my view, he does not. The bailiff’s motion for summary judgment is therefore dismissed.

Background

[3] The background details are not overly important. Suffice it to say, this litigation involves a multi-party dispute about the ownership of a hydraulic truck crane and the events surrounding its storage, sale, and bailiff’s seizure. There are allegations of false sales and forged documents. The upcoming trial will no doubt be replete with credibility issues.

[4] Ontario Legal Recovery (“OLR”), the licensed bailiff that seized the truck crane, moves for summary judgment in an effort to extricate itself from this litigation. OLR says it acted in good faith in accordance with an order or process of an Ontario court and is therefore protected by s. 142 of the Courts of Justice Act. The only party opposing OLR’s motion for summary judgment is the plaintiff, Thomkess Crane Rentals, who insists that it purchased the truck crane for some $90,000 and is the legitimate owner. Thomkess submits that OLR did not act in good faith in accordance with the court-issued writ of seizure and therefore does not come within the protection of s. 142

[5] There is no dispute about the fact that the writ of seizure issued by the registrar of this court directed that the bailiff seize the truck crane from “Joe Colavita, o/a JC Repair & Rentals Ltd, 47 Yorkdale Cres., Toronto.” There is also no dispute about the fact that OLR seized the property from the Thomkess Crane job site in Cambridge, Ontario. Neither Thomkess nor the Cambridge job site is named on the court-issued writ of seizure. When Thomkess tried to explain to OLR that they were the owners of the crane, having just purchased it, OLR said it was “not interested ...it doesn’t matter whose name is on the writ, we are taking it.”

Analysis

[6] Thomkess makes a number of arguments as to why OLR did not act in good faith: no court papers were shown when the property was seized; the property seized included equipment that had been added to the truck crane by the plaintiff and was not listed in the writ of seizure; and physical force was used to effect the seizure. For my part, I am content to focus on the plaintiff’s strongest argument: the fact that OLR seized property from a person and place not mentioned in the writ of seizure.

[7] OLR relies on the decision of the Divisional Court in Canada (AG) v. Tremblay,[^2] and in particular to the comment that “the [statutory] immunity … can only be defeated by evidence of bad faith.”[^3] And here, says OLR, there is no evidence of bad faith. There may be evidence of a lack of good faith, but this is not the same as evidence of bad faith.

[8] I do not agree. First, Canada (AG) v. Tremblay,[^4] is distinguishable because the defendant correctional authority complied with the court order exactly as issued[^5] and there was no allegation or evidence of bad faith.[^6] 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.

[9] As for the obiter comment of the Divisional Court in Tremblay that the s.142 immunity can only be defeated by evidence of bad faith, I do not think that the court intended to suggest that evidence of bad faith is of a different order or magnitude than evidence of a lack of good faith.

[10] It is important to remember that good faith is not an elevated or ideal standard of behaviour. As courts and commentators have noted over many decades, good faith is nothing more than “the observance of reasonable commercial standards of fair dealing in the trade.”[^7] The operative norms are every-day fairness and reasonableness. I highly doubt that that in the “real world” of bailiffs and repossession, it is a reasonable practice to seize property from a person or place not named in the writ of seizure. In any event, there is no evidence suggesting this.

[11] In my view, if one is not acting in good faith, then one is acting in bad faith.[^8] 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.

Disposition

[12] The motion for summary judgment is dismissed.

[13] If the parties cannot agree on costs, I would be pleased to receive brief written submissions from Thomkess Crane Rentals within 10 days and from Ontario Legal Recovery within 10 days thereafter.

Belobaba J.

Date: September 3, 2014

[^1]: R.S.O. 1990, c. C.43, as amended.
[^2]: [2011] O.J. No. 2827 (Div. Ct.)
[^3]: Ibid., at para. 19.
[^4]: Supra, note 2.
[^5]: Ibid., at paras. 13 and 18.
[^6]: Ibid., at para. 19.
[^7]: The case law and commentary is discussed in Belobaba, Good Faith in Canadian Contract Law, [1985] LSUC Spec. Lect. 73 at 78-80.
[^8]: That is, evidence of a lack of good faith is evidence of bad faith.