COURT FILE NO.: 1260/16 and 1312/16 DATE: 2016-06-29 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
XUAN LUU Applicant – and – MAZEN ABUOMAR, MOHAMED ABUOMAR also known as MOHAMED ABU-OMAR also known as MOHAMED A.R. ABUOMAR also known as MOHAMED A. ABU-OMAR and HORYA EL-RAKEB Respondents
AND BETWEEN:
MOHAMED ABU-OMAR and EMAD ELGUINDY Applicants – and – XUAN LUU and ALLISON SPEIGEL Respondents
Counsel: Allison Speigel, counsel, for the Applicant Emad Elguindy, unlicensed paralegal (by leave), for the Respondents
HEARD: June 8, 2016
Reasons for Judgment
Gray J.
[1] While there are two applications before me, there is really only one issue: whether a judgment obtained by the son of a judgment debtor is to count in the distribution of funds to be made by the Sheriff with respect to money obtained on an aborted sale of property owned by the debtor. After all the strategic maneuvering that was done, primarily by the debtor and his son, that is really what remains to be decided.
[2] For the reasons that follow, the purported judgment obtained by the son of the debtor must be ignored, and the Sheriff must distribute the funds to the legitimate judgment creditor, Xuan Luu.
Background
[3] Hereafter, when I refer to the “applicant”, I am referring to Xuan Luu, the applicant in court file number 1260/16. She is a judgment creditor, in the amount of approximately $82,000, as against the respondent Mohamed Abuomar. Hereafter, he will be referred to as “Mohamed”. The respondent Horya El-Rakeb is Mohamed’s wife. The respondent Mazen Abuomar is Mohamed’s son. He will hereafter be referred to as “Mazen”.
[4] The other application, court file number 1312/16, has little actual relevance. The applicants in that proceeding are Mohamed and Emad Elguindy. Elguindy is an unlicensed paralegal who has sometimes represented Mohamed in his various proceedings. The respondents are Xuan Luu, the applicant in file 1260/16, and Allison Speigel, counsel for Luu in that proceeding. In that application, the applicants seek an order setting aside at least one of the prior orders that is in issue in the other proceeding; setting aside at least one writ of execution; compelling the Sheriff to pay out the funds received on the aborted sale, and giving effect to the judgment obtained by Mohamed’s son; and damages in favour of Elguindy for allegedly ruining his reputation.
[5] Apart from the claim for damages on the part of Mr. Elguindy, everything asserted in that application can be asserted in response to the other application. It is clear, in my view, that the only purpose of commencing that application is to make Mr. Elguindy a party so that he can make submissions. As it happened, I inquired as to Mr. Elguindy’s status to make submissions and Ms. Speigel advised me that she consented to Mr. Elguindy representing the other parties and making submissions. Had it not been for Ms. Speigel’s consent, I might well have declined to allow Mr. Elguindy to make any submissions.
[6] No evidence was tendered as to any damages suffered by Mr. Elguindy. Damages cannot be claimed on an application in any event: see Hefford v. Charpentier (2009), 249 O.A.C. 93 (Div. Ct.). The application in court file number 1312/16 will be dismissed, and I will hereafter only address the issues raised in the application under court file number 1260/16.
[7] The applicant, Xuan Luu, owns and operates a grocery store in a strip mall in Mississauga. The respondent, Mohamed, owned and operated a proprietorship in the strip mall called Sinbads Halel Meats.
[8] In 2003, Luu commenced an application against the proprietorship to enforce a restrictive covenant governing the strip mall. Ultimately, Luu was successful in her application.
[9] Thereafter, various court orders were made against Mohamed.
[10] On January 12, 2005, Tulloch J., as he then was, awarded costs against Sinbads, Mr. Elguindy, and Mohamed. Costs were awarded in the amount of $20,377.91, jointly.
[11] On February 13, 2014, an order was made, ex parte, ordering that the costs order be varied so as to clarify the names of the parties against whom the costs order had been made.
[12] On October 11, 2006, as part of the judgment granting the substantive relief on Luu’s application, Justice MacKenzie ordered the respondents to pay costs in the amount of $28,566.83.
[13] On February 26, 2015, Justice Skarica ordered that the style of cause be amended so as to make it clear that Mohamed was a party required to pay the costs ordered by Justice MacKenzie. Justice Skarica ordered costs of the motion before him, in the amount of $8,161.73, to be paid.
[14] None of these costs orders has been paid. Together with accumulated interest, the amount now owing is $82,479.69.
[15] In 2009, Mohamed and his wife, the respondent Horya El-Rakeb, purchased a property at 2434 Sylvia Drive, Oakville. They own the property as joint tenants. There are no mortgages registered against the property, and the applicant estimates that it is worth between $950,000 and $1 million.
[16] Mohamed has paid nothing towards the amounts owing to the applicant, and on August 17, 2015, the applicant commenced the process to have Mohamed’s interest in the property sold. At the time those proceedings were commenced, there were no other mortgages, writs of execution or other encumbrances against the property.
[17] On September 23, 2015, the Sheriff sent a letter to Mohamed and his wife advising them that if arrangements were not made to pay the outstanding amounts owing, the Sheriff would proceed with the sale of Mohamed’s interest in the property. A further notice was sent by the Sheriff on December 14, 2015, advising that if the amounts owning were not paid, the Sheriff would proceed with the sale on February 19, 2016. The sale proceeded on February 19, 2016. One bid was placed for Mohamed’s interest in the property by a woman, who provided a $26,000 deposit. Ultimately, the woman did not proceed to close the transaction and the $26,000 was forfeited. The amount is now held by the Sheriff and the net amount of it is available for distribution to judgment creditors after deducting the Sheriff’s costs.
[18] It is also alleged that Mr. Elguindy attended the sale. When bidders were sought, it is alleged that he interrupted the proceedings and announced that it would not be worthwhile bidding because the purchaser would only acquire a half-interest of a property in which someone else was living. The auctioneer told Mr. Elguindy that if he did not stop interrupting the sale, he would be escorted out. Mr. Elguindy, for his part, says he merely wanted to ensure that bidders were aware of what they were purchasing.
[19] I should note that Ms. Speigel has filed numerous documents and judgments that purport to show that Mr. Elguindy has been involved in many fraudulent activities in the past, and his conduct has been commented upon adversely by many judges. I have found it unnecessary to refer to or rely on any of this material.
[20] On February 26, 2016, the applicant’s solicitors discovered that there was another writ of execution on file with the Sheriff, in the amount of $700,400. The execution creditor is Mohamed’s son, Mazen.
[21] The applicant’s solicitors discovered that Mazen had filed a statement of claim against Mohamed on October 5, 2015, 12 days after the Sheriff had notified Mohamed that his interest in the property would be sold. In the statement of claim, Mazen alleges that he loaned Mohamed $700,000, and his father failed to repay the loan.
[22] Mohamed failed to defend the claim, and on October 27, 2015, Mazen attempted to obtain default judgment. On November 9, 2015, an endorsement was issued requiring Mazen to provide an affidavit addressing the basis of the loan, whether any documents existed to support the loan, and the circumstances of any default. In response, Mazen filed an affidavit stating that there were no documents between himself and his father due to the blood relationship; that his father “did not mind a judgment to protect my interest in the event he passes away and my money would go to the estate or to my brothers and sisters”; and that Mohamed had borrowed the money on November 7, 2014 and was supposed to pay it back in one year.
[23] A motion for default judgment was served by Mr. Elguindy on January 6, 2016. Default judgment was obtained on January 13, 2016. As it happened, I was the motion judge. I have obtained a transcript of what occurred on January 13, 2016. The following took place:
MAZEN ABUOMAR: I’m like – good morning, Your Honour. My name is Mazen Abuomar, I’m the… THE COURT: You’re the plaintiff? MAZEN ABUOMAR: Plaintiff, yeah. THE COURT: All right, and you are…? MOHAMED ABUOMAR: Mohamed Abuomar. THE COURT: You’re the responding party. All right. MAZEN ABUOMAR: Your Honour, here I’m seeking for judgment on the Statement of Claim. THE COURT: Yes. MAZEN ABUOMAR: Last week I appeared before… THE COURT: Yes. I know. I’ve read the material. And you’re not opposing this, correct? MAZEN ABUOMAR: No. MOHAMED ABUOMAR: Yes. THE COURT: All right. You are opposing this? MOHAMED ABUOMAR: Yeah. THE COURT: Oh, okay. Well, if he’s opposing it, I’d better hear from him. MAZEN ABUOMAR: Oh. My understanding that he’s not opposing it. THE COURT: Okay. MAZEN ABUOMAR: Maybe he can… THE COURT: Well, why don’t you just ask him if he’s oppose… MAZEN ABUOMAR: You want me to ask him? THE COURT: If you wouldn’t mind. MAZEN ABUOMAR: Sure. I’d ask… THE COURT: Yeah. MAZEN ABUOMAR: Do you oppose – do you have any problem with judgment? MOHAMED ABUOMAR: No. No problem.
[24] It is noteworthy that I was not advised that there were proceedings involving Mohamed that resulted in orders amounting to approximately $82,000 in writs of execution against him.
[25] Based on the outstanding judgments in favour of the applicant, Luu, and Mazen Abuomar, the Sheriff proposes to distribute the net amount of $18,171.16, by providing to Ms. Luu the sum of $1,917.33, and the sum of $16,253.73 to Mazen Abuomar.
[26] By letter dated April 12, 2016, the solicitors for Ms. Luu have advised the Sheriff that the proposal for distribution is disputed on the basis that the writ of execution filed by Mazen Abuomar is fraudulent.
[27] By letter dated March 15, 2016 from Ms. Luu’s solicitors to Mazen, he was asked to provide proof of the $700,000 loan, such as cancelled cheques or bank statements. Nothing was provided.
[28] Affidavits have been filed by Mazen and Mohamed.
[29] Mazen deposes that his father is truly and justly indebted to him in the amount of $700,000. He also deposes that he caused a writ of execution to be filed with the Sheriff in accordance with the judgment of this court. He says that at the time he filed the writ of execution he had not had any notice or any knowledge that his father was indebted to anyone else.
[30] Mohamed in his affidavit claims that he was never served to attend court on February 26, 2015. He swears that all amounts shown must have been obtained by fraud. He swears that the order made amending the style of cause was never served on him. He swears that he never received any letter from the Sheriff advising him of the potential sale of his property before December 14, 2015. Specifically, he swears that he did not receive the letter from the Sheriff dated September 23, 2015.
[31] Mohamed swears that the judgments obtained against him and the writ of execution are all fraudulent and should be set aside.
[32] The solicitors for the applicant have filed affidavits of service showing that Mohamed was served with the material in advance of the February 26, 2015 hearings; letters dated February 20, 2014 to Mohamed enclosing a copy of the February 13, 2014 Order; affidavits of service sworn by a Sheriff’s officer deposing that the letter dated September 23, 2015 and December 16, 2015 were sent by regular mail and registered mail to Mohamed and his wife. The letter dated September 23, 2015 sent by registered mail was unclaimed, but the copies sent by regular mail were not returned. The solicitors for Ms. Luu wrote to Mohamed on March 6, 2015, enclosing the October 11, 2006 judgment and the February 26, 2014 Order. On March 24, 2015, correspondence commenced between Ms. Luu’s solicitors and one Bryan Jenkins, a lawyer who was representing Mohamed. Mr. Jenkins asked for a summary of all amounts claimed, which was provided to him.
Submissions
[33] Ms. Speigel, counsel for the applicant, submits that the judgment obtained by Mazen in the amount of $700,400 is fraudulent, and the writ of execution obtained in reliance on it should be set aside as against the applicant. In that event, the amount now held by the Sheriff for distribution should be furnished only to the applicant.
[34] Ms. Speigel submits that there are many badges of fraud surrounding the obtaining of the judgment, including the timing of the proceedings, the relationship between the parties, and the lack of any documentation or financial records. In the circumstances, the onus is on the respondents to explain the suspicious circumstances, and satisfy the court that the judgment is legitimate.
[35] Ms. Speigel submits that the respondents have utterly failed to dispel the suspicious circumstances. The affidavits filed by the respondents are bereft of any information that would satisfy the court that the debt allegedly said to be owing to Mazen by Mohamed was legitimate, and that the judgment and writ of execution are also legitimate. In the circumstances, it can only be concluded that the judgment was obtained for the purpose of ensuring that Ms. Luu could not get her hands on the lion’s share of the money in the hands of the Sheriff, and that Mohamed’s interest would be protected.
[36] Ms. Speigel submits that section 2 of the Fraudulent Conveyances Act provides ample authority for this court to grant the order sought.
[37] Ms. Speigel also submits that I should order the property as a whole to be sold, and order that Ms. Luu’s judgments be satisfied out of Mohamed’s share of the proceeds.
[38] Ms. Speigel submits that it is clear that the respondents, and Mr. Elguindy, will do everything in their power to frustrate the sale of Mohamed’s one-half interest in the property, and that it will be next to impossible for Ms. Luu to obtain satisfaction of the judgments in her favour.
[39] Ms. Speigel submits that, pursuant to the judgment of this court in Canaccede International Acquisitions Ltd. v. Abdullah (2015), 2015 ONSC 5553, 127 O.R. (3d) 779 (S.C.J.), an order can be made for judicial sale of a property, in appropriate circumstances, to allow a judgment to be satisfied. Ms. Speigel submits that Broad J., in that case, canvassed the equitable jurisdiction of this court to make an order for judicial sale, and I should adopt the same approach and order judicial sale in this case.
[40] Mr. Elguindy, for the respondents, submits that the application should be dismissed, or in the alternative I should order that the matters in issue proceed to be determined at a trial.
[41] Mr. Elguindy submits that both Mohamed and Mazen have filed affidavits under oath, and they cannot be ignored. Mohamed swears that he was not served with the various proceedings that gave rise to orders against him, and the orders should be ignored or set aside. Mazen has sworn that he was not aware of any judgments against his father prior to his obtaining his own judgment against his father. Further, he has sworn that the debt owing from his father to himself is a legitimate one.
[42] Mr. Elguindy submits that the court is in no position to resolve the conflicting affidavit material, and thus the application should be dismissed or a trial should be ordered.
[43] The authorities relied on by the parties include Canaccede, supra; Lavoie v. Poirier (1984), 50 C.B.R. (N.S.) 206 (Ont. S.C.J.); Purcaru v. Seliverstova (2015), 2015 ONSC 6679, 69 R.F.L. (7th) 388 (Ont. S.C.J.); Son v. Kim, [1994] O.J. No. 2713 (Gen. Div.); Tsymbalarou v. Gordon, (2013) ONSC 5358; Warsh v. Fink, [1998] O.J. No. 3908 (Gen. Div.); Newcastle Recycling Ltd. v. Clarington (Municipality) (2005), 2005 ONCA 46384, 204 O.A.C. 389 (C.A.); Yoo v. Kang, [2002] O.J. No. 4041 (S.C.J.); Essex Condominium Corp. No. 5 v. Rose-Ville Community Centre Assn. (2007), 51 C.P.C. (6th) 89 (Ont. S.C.J.); Sandhu-Malwa Holdings Inc. v. Auto-Pak Ltd., [2011] O.J. No. 6268 (S.C.J.); Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, [2014] O.J. No. 851 (S.C.J.); T. Films S.A. v. Cinemavault Releasing International Inc., 2015 ONSC 6608; ThyssenKrupp Elevator (Canada) Ltd. v. Amos (2014), 2014 ONSC 3910, 16 C.C.E.L. (4th) 313 (Ont. S.C.J.); and Tubacex & Cotubes Canada Inc. v. Scan Tube & Steel Services Ltd., [2009] O.J. No. 1303 (S.C.J.).
Analysis
[44] The relevant provisions of the Fraudulent Conveyances Act are as follows:
Definitions
- In this Act,
“conveyance” includes gift, grant, alienation, bargain, charge, encumbrance, limitation of use or uses of, in, to or out of real property or personal property by writing or otherwise; (“cession”)
“real property” includes lands, tenements, hereditaments and any estate or interest therein. (“biens immeubles”).
Where conveyances void as against creditors
- Every conveyance of real property or personal property and every bond, suit, judgment and execution heretofore or hereafter made with intent to defeat, hinder, delay or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, penalties or forfeitures are void as against such persons and their assigns. [Emphasis added]
[45] It is clear, from these provisions, that the Fraudulent Conveyances Act, deals not only with conveyances. Rather, it also deals with other instruments that may act to fraudulently affect the interests of creditors. Such instruments include bonds, suits, judgments and executions.
[46] It was argued in Warsh v. Fink, supra, that to be fraudulent, a bond, suit, judgment or execution must involve a transfer or assignment with the intent to defeat creditors or others. The late Archie Campbell J. rejected that argument, and held that a judgment made with the intent to delay or hinder creditors can be set aside under the Act.
[47] At paras. 12 and 13, Justice Campbell stated:
I accept the submission on behalf of the moving defendants that a conveyance requires a transfer but I also accept the submission on behalf of the plaintiffs that a judgment made with the intent to delay or hinder creditors is not restricted to one which involves a transfer. In my view, section 2 deals with two classes of instruments. The first involves conveyances of real or personal property and the second involves bonds, suits, judgment or executions.
There was nothing in the earlier language of the sections that would suggest that fraudulent judgments had to involve transfers and I am therefore not persuaded that the language of the current section 2 should be read in a way that would require a transfer of such an instrument before action could be taken to set it aside.
[48] Accordingly, if it can be established, in this case, that Mazen’s judgment in the amount of $700,400 was obtained with the intent to defeat, hinder, delay or defraud creditors, it can be set aside under section 2 of the Fraudulent Conveyances Act.
[49] In any case where it is alleged that a transaction, or, as in this case, a judgment, was effected or obtained with intent to defraud creditors, the burden of proof is affected by what are known as “badges of fraud”.
[50] Badges of fraud simply constitute circumstantial evidence from which it may be inferred that an instrument was prepared and used with fraudulent intent. As stated by Penny J. in Incondo Building Corp. v. Sloan (2014), 2014 ONSC 4018, 121 O.R. (3d) 160 (S.C.J.), at para. 53, “The badges of fraud represent evidentiary rules developed over time which, when considered in all the circumstances, may enable the court to make a finding unless the proponents of the transaction can explain away the suspicious circumstances.”
[51] In this case, there are number of badges of fraud. They include:
a) The timing of the impugned judgment; the statement of claim leading to the judgment was issued after Mohamed and his wife had been advised that the Sheriff would take steps to sell the property; b) The relationship between the parties – father and son; c) The lack of any documentation to support the alleged loan, including cancelled cheques or bank documents; d) The illogic of the need to obtain a judgment – if there really was a loan that needed to be protected on Mohamed’s death, a simple will would have sufficed.
[52] While Ms. Speigel submits that I should have regard for the fact that Mr. Elguindy is involved in the matter, and that he has been found to have been involved in fraudulent activities in the past, I do not need to have regard for this feature in coming to my conclusions, and I have ignored Mr. Elguindy’s involvement.
[53] Mohamed and Mazen have not explained, in any satisfactory way, the badges of fraud. They have both filed very short affidavits that contain almost no information. They contain nothing but bald statements, unsupported by any detail.
[54] I do not accept that Mohamed was unaware of the proceedings that gave rise to the orders against him. Among other things, he retained a solicitor who was fully informed as to all outstanding matters, and yet no proceedings were commenced to set aside any of the orders made against him, at least until the present proceedings were commenced by Ms. Luu.
[55] I do not accept Mazen’s bald statement that he was unaware of any judgments against his father. The inference arising from the badges of fraud is simply too strong to be explained away by such a bald statement, and I do not accept it.
[56] I do not accept Mr. Elguindy’s submission that this matter ought not to be decided on the basis of conflicting affidavits. The cases he relies on have been overtaken by more recent developments flowing from Hryniak v. Mauldin, 2014 SCC 7, supra as stated by Penny J. in T. Films S.A. v. Cinemavault Releasing International Inc., 2015 ONSC 6608, supra, at para. 82:
In today’s world, the test for whether an application should be converted into a trial (or trial of an issue) is congruent with the direction of the Supreme Court of Canada in Combined Air Mechanical Services Inc. v. Flesch, 2014 SCC 7 (S.C.C.) [hereinafter Hryniak v. Mauldin]; that is, in order to dispose of the case justly and fairly, is the forensic machinery of a trial required?
[57] As stated by Karakatsanis J. in Hryniak v. Mauldin, 2014 SCC 7 at para 49:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[58] In this case, I have no hesitation in concluding that the forensic machinery of a trial is not required in order to finally dispose of this dispute.
[59] The onus is on Mohamed and Mazen to provide a satisfactory explanation for the suspicious circumstances, giving rise to the badges of fraud. They have utterly failed to do so. I must assume that the evidence they have provided is all the evidence that would be produced at trial. Thus, there would be no cancelled cheques or bank records to show that there was any loan from Mazen to Mohamed. Their explanations that they were simply unaware of what was going on are entirely unconvincing. The timing of the various events gives rise to a compelling inference that the so-called judgment was obtained to have precisely the effect that it would have if it were not set aside – that is, Mazen would receive the overwhelming majority of any proceeds the Sheriff would obtain from a sale or attempted sale of Mohamed’s interest in the property.
[60] For these reasons, I declare that the judgment and the writ of execution obtained as a consequence of it are void and of no effect as against the interests of the applicant, Xuan Luu, and they shall be ignored by the Sheriff in distributing any and all proceeds of a sale or attempted sale of Mohamed’s interest in the property.
[61] As noted earlier, Ms. Speigel requests an order requiring a judicial sale of the property, and an order requiring the payment of Ms. Luu’s judgments out of Mohamed’s share of the proceeds. She relies on the judgment of Broad J. in Canaccede, supra.
[62] I confess to some difficulty with the analysis of Justice Broad in Canaccede. It seems to me that a sale of property can be effected only where a statute authorizes it, or a recognized principle of law or equity authorizes it.
[63] Property can be sold in order to satisfy the interest of a creditor pursuant to the Execution Act, and pursuant to a power of sale under a mortgage as governed by the Mortgages Act. In the case of jointly-owned property, it can be sold at the instance of a person having an interest in the property pursuant to the Partition Act.
[64] In Canaccede, Broad J. decided that property could be sold to satisfy the interest of an execution creditor, by analogy to the rules governing the appointment of an equitable receiver.
[65] With respect, I do not necessarily see how the principles surrounding equitable receivers can be translated into a power in the court to order a judicial sale of property simply because it seems convenient. Equitable principles have been developed by the courts over the decades, indeed centuries, based on clear standards. They do not allow the court to simply do what might appear to be a good idea in any particular case.
[66] In some cases, the court can order what is sometimes termed “equitable execution”, which is actually the appointment of a receiver in aid of execution. This was discussed by Gibson Gray J. in Canadian Film Development Corp. v. Perlmutter et al. (1986), O.R. (2d) 283 (H.C.J.), and by David Brown J., as he then was, in Weig v. Weig, [2012] O.J. No. 6092 (S.C.J.). In Weig, at paras. 18 and following, Brown J. makes extensive reference to Bennett on Receiverships (3rd ed.), in which the history of receiverships in aid of execution is discussed. Fundamentally, a receiver in aid of execution can be utilized where there is a legal impediment in seizing a debtor’s property or where all ordinary remedies to collect have been exhausted. Where the creditor could not seize the debtor’s property through execution of law, garnishment or attachment, the creditor could apply for the appointment of a receiver to seize or intercept specific property.
[67] Where a receiver is appointed, it is for the purpose of seizing or intercepting a debtor’s interest in a property or a revenue stream that is otherwise difficult to get at because of legal or practical impediments that are in the way. I know of no authority, however, that would allow the receiver to adversely affect the rights of a third party. Specifically, I know of no authority that would allow the receiver to deprive a joint owner of property, who is not a debtor, of his or her interest in it by selling the property to get at the debtor’s interest in it.
[68] Justice Broad, in Canaccede at para. 21, stated that it is appropriate to employ the principles governing equitable execution in considering whether to follow an alternative process to a sheriff’s sale for the enforcement of money judgments against land. I am not certain that engaging in the process of judicial sale is analogous to the appointment of a receiver. A judicial sale is actually a rather cumbersome and expensive process, probably more so than a sale under the Execution Act.
[69] Justice Broad held that the parties should not be left to their remedy of sale under the Execution Act because the procedures under that Act now appear to be inconvenient, in some cases, as result of the Personal Information Protection and Electronic Documents Act (PIPEDA), as discussed in the decision of the Court of Appeal in Citi Cards Canada Inc. v. Pleasance (2011), 2011 ONCA 3, 103 O.R. (3d) 241 (C.A.).
[70] It seems to me 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. I note that the Court of Appeal’s subsequent decision in Royal Bank of Canada v. Trang (2014), 2014 ONCA 883, 123 O.R. (3d) 401 (C.A.) has been appealed to the Supreme Court of Canada and it remains to be seen whether PIPEDA will necessarily result in the same inconvenience contemplated in Citi Cards.
[71] In any event, what was on foot in Canaccede is not analogous to what is requested here. In Canaccede, there was no suggestion of joint ownership of any of the properties in issue in that case. Here, the property is jointly owned by Mohamed and his wife. To order the property sold would require that the respondent Horya El-Rakeb give up her interest in the property, and be left with cash instead. I do not think, in these circumstances, that a judicial sale can affect her interest in this way when there is no judgment against her. As noted earlier, I am not aware of any case where a receiver in aid of execution has been appointed to seize and sell jointly-held property. I cannot see how a judicial sale can be used in that way either.
[72] It is clear that an execution creditor does not have the right to apply under the Partition Act for a sale of land, where the land is owned jointly by the execution debtor and another person: see Ferrier v. Civiero (2001), 2001 ONCA 5158, 147 O.A.C. 196 (C.A.).
[73] To give effect to the applicant’s argument would mean, in my view, that the clear holding of the Court of Appeal in Ferrier v. Civiero could be overcome through the back door. If an execution creditor has no right to sell jointly-owned property under the Partition Act, it cannot achieve the same result indirectly through the device of a judicial sale.
[74] It may be, as adverted to at para. 2 of Ferrier, that Ms. Luu could acquire a right to apply under the Partition Act by acquiring Mohamed’s half interest in the property at an Execution Act sale. However, that has not happened and the issue is not before me.
[75] For these reasons, the request by the applicant that the property be sold by judicial sale is dismissed.
[76] The cross-application in court file 1312/16 is dismissed.
[77] I will entertain brief written submissions as to costs, not to exceed three pages, together with a costs outline or bill of costs. Ms. Speigel will have five days to file submissions, and Mr. Elguindy will have five days to respond. Ms. Speigel will have three days to reply.