Court File and Parties
COURT FILE NO.: 16-67840 DATE: 2017/05/16 ONTARIO SUPERIOR COURT OF JUSTICE
RE: SEBASTIEN GARNIER, Plaintiff AND ALAIN LEMAY, Defendant
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Sebastien Garnier, acting in person Claudius Croiset Van Uchelen, for the defendant
HEARD: February 16, 2017
AMENDED ENDORSEMENT
Paragraphs 78, 99 and 109 and subparagraphs (16, 19 and 20) have been amended, “Hydro One” changed to “Hydro Ottawa”.
Introduction
1The plaintiff (“Garnier”) obtained a judgment against Alain Lemay (“Lemay”) in Small Claims Court in March 2015, following the trial of an action before Deputy Judge Fortier (as she then was) in November 2014.
2The judgment at trial (the “Judgment”) is in the amount of $25,000 plus pre-judgment interest, post-judgment interest, and costs. The costs of the trial were fixed in the amount of $3,000. The pre-judgment and post-judgment interest rates are each 6.5 per cent per year.
3The Judgment is also against two co-defendants named in the Small Claims Court action – Sheerwater Holdings Limited and Raymond Alexander D’Aoust (“D’Aoust”). Those defendants did not defend the action. D’Aoust is Lemay’s father-in-law.
4Garnier has, since obtaining the Judgment, been attempting to enforce it. To that end, Lemay’s wages with Hydro Ottawa Limited are being garnished. In addition, Garnier has been attempting to conduct an examination of a debtor (“EOD”) of Lemay. Garnier’s efforts in that regard have, to date, been thwarted by Lemay.
5Lemay brings this motion for relief related to Garnier’s efforts to obtain payment of the Judgment and to address a finding made in December 2015 that he is in contempt of the Small Claims Court.
6By way of a cross-motion, Garnier seeks relief from this Court to allow him to proceed with an EOD of Lemay and to address Lemay’s failure to comply with a number of orders made by one or more Deputy Judges of the Small Claims Court.
Status of the Judgment
7As of February 2017, when this matter was before me, approximately $25,000 to $30,000 had been garnished from Lemay’s wages. However, none of the funds garnished have been paid to Garnier. Pursuant to an order made by a Deputy Judge in August 2015, there is a prohibition from the distribution of the funds garnished. The funds continue to be held by the Clerk of the Small Claims Court.
8The prohibition against the distribution of the funds is in place “until final disposition of [the] matter, which has been appealed.” [1] The prohibition is the end result of a motion for relief in that regard brought by Lemay in the summer of 2015. On that motion, it was represented to the presiding Deputy Judge that steps had been taken to:
a) Bring a motion in Divisional Court for an order extending the time within which to file a notice of appeal from the decision of the trial judge; and,
b) Assuming the extension of time is granted, thereafter file the notice of appeal.
9In light of the representations made at the time, it is understandable that the presiding Deputy Judge granted the relief requested. However, Lemay has done nothing since the summer of 2015 to advance the motion for an order extending the time within which to file a notice of appeal.
10Lemay’s wages continue to be garnished, yet Garnier has received nothing from the garnishment process. In addition, Lemay failed to attend two EODs scheduled by Lemay.
11As a result of Lemay’s failure to attend the second of the two EODs, Lemay was, on a motion by Garnier, found to be in contempt of the Small Claims Court. In response to that finding, Lemay brings this motion before the Superior Court of Justice.
12Lemay’s motion was originally brought without notice and returnable in March 2016. Although Lemay’s motion was said to be without notice, Garnier attended on the return of the motion.
13When the motion was first before me in March 2016, it was adjourned to a fixed date in July 2016 (once again before me) to allow the parties to file additional materials. Terms of the adjournment included deadlines by which the parties were to file additional materials, conduct cross-examinations, etc.
14When the parties returned before me in July 2016, the deadlines set in my original endorsement had not been met. Regardless, Garnier was ready to proceed with the substantive elements of Lemay’s motion and of the cross-motion. The materials for the cross-motion had been delivered prior to the July 2016 return date.
15However, Lemay requested a further adjournment of his motion. His request was based on the following:
a) The alleged failure of Garnier to meet the deadlines set in my original endorsement; [2]
b) Lemay’s stated intention to deliver materials in reply to Garnier’s responding and cross-motion record;
c) Lemay’s stated intention to cross-examine Garnier in his June 2016 affidavit.
16I note that the record before me does not include any reply materials filed on behalf of Lemay and that ultimately Garnier was not cross-examined on his June 2016 affidavit.
17For the reasons set out in my July 2016 endorsement, the request for an adjournment was granted on terms. It was made clear at the time that no further adjournment of the matter would be granted. The motion and cross-motion were adjourned to a fixed date in September 2016, once again before me.
18When the matter came before me in September 2016, Garnier was in attendance. Counsel for Lemay, Claudius Croiset Van Uchelen (“Counsel for Lemay”), advised the Court in a letter sent by fax that he was ill and unable to attend court. He undertook to personally pay $500 in costs to Garnier. An order to that effect was included in my endorsement on that date, with a deadline set of October 14, 2016 for the payment of costs to be made. [3]
19In the absence of Counsel for Lemay, the motion and cross-motion were adjourned to a fixed date in February 2017. The motion and cross-motion proceeded on that date.
The Issues
20The issues to be determined on this motion and cross-motion are:
Is Lemay entitled to an order purging the finding of contempt made against him in December 2015 by the Deputy Judge of the Small Claims Court?
Is Garnier entitled to proceed with an examination of debtor of Lemay?
How is the multiplicity of proceedings to be resolved?
Issue No. 1 – The Finding of Contempt
a) Positions of the Parties
i) Lemay
21It is Lemay’s position that a Deputy Judge of the Small Claims Court does not have the jurisdiction to make a finding of contempt. Lemay submits that the finding of contempt made by the Deputy Judge on December 1, 2015 is to be set aside and that the issue of contempt is to be determined as part of the motion before me.
22Lemay’s alternative position is that, if the Deputy Judge had the jurisdiction to make the finding of contempt, then Lemay requests an order from this Court purging that finding. Lemay submits that his actions were not committed in flagrant disregard for the process. He submits that the reason why he did not attend the EOD was so as to raise the point of law set out below – that a judgment creditor is not entitled to compel a judgment debtor to attend an EOD when the judgment debtor’s wages are being garnished.
ii) Garnier
23Garnier submits that the Deputy Judge had the jurisdiction to make the finding of contempt based on Lemay’s failure to attend second of the two EODs scheduled by Garnier in 2015.
24Garnier highlights that in none of the materials filed by Lemay on this motion is there reference to the issues now being raised – both the jurisdictional issue and the suggested prohibition from pursuing any method of enforcement other than a writ of seizure and sale when the judgment debtor’s wages are being garnished (i.e. Issue No. 2 discussed below). Garnier submits that these positions (a) were developed on Lemay’s behalf as his motion proceeded in Superior Court and (b) have nothing to do with Lemay’s failure to attend the EOD.
b) Analysis
25I note that in the notice of motion filed in this matter, the only relief requested by Lemay with respect to the finding of contempt is an order confirming that he has purged his contempt. The issue of the jurisdiction of the Deputy Judge to make a finding of contempt was not raised in the notice of motion or in any of the other materials filed on Lemay’s behalf.
26During oral submissions on Lemay’s behalf, no reference was made to any of the Rules of the Small Claims Court, [4] or to any authority that provides support for Lemay’s position.
27Section 30 of the Courts of Justice Act [5] grants to Deputy Judges of the Small Claims Court the jurisdiction to:
Order that a judgment debtor who is required and fails to attend an EOD attend before the court for a contempt hearing (section 30(1));
Find a person to be in contempt of court if the court is satisfied that the person was required to attend the EOD, the person was properly served with the notice of the EOD, the person failed to attend the EOD, and the failure to attend was wilful (section 30(2)); and
Order that the individual in contempt be imprisoned for up to a maximum of five days (section 30(4)). [6]
28The Rules are clear in setting out the jurisdiction of a Deputy Judge to make a finding of contempt. The consolidation notes which follow rule 20.11(6) state the following:
From July 1, 2006 to December 31, 2010, only a Superior Court Judge could preside over a hearing in Small Claims Court for contempt of court for a debtor’s wilful failure to attend an examination hearing. The Rules of the Small Claims Court and the Courts of Justice Act were changed to also give deputy judges and provincial civil judges jurisdiction to preside over these contempt hearings as of January 1, 2011 (r. 20.11(2); new Courts of Justice Act, section 30). [7]
29I find that it was entirely within the jurisdiction of the Deputy Judge to make the finding in December 2015 that Lemay was in contempt of the Small Claims Court.
30As to the remedies available to Lemay with respect to the contempt hearing and the finding of contempt, it was open to him, prior to the contempt hearing, to bring a motion for an order setting aside the order for a contempt hearing. However, he would have had to serve the appropriate materials and arrange for his motion to be heard before the date on which the contempt hearing was scheduled to proceed. In addition, the only order that could have been made on such a motion, so as to avoid the contempt hearing proceeding, was an order that Lemay attend an EOD under rule 20.10. [8]
31I find that Lemay did everything he could to avoid having to attend either of the EODs scheduled by Garnier. I infer that Lemay chose not to proceed with a motion to set aside the order for a contempt hearing. I find that Lemay did so specifically because he did not want to be subject to an order requiring him to attend an EOD.
32Lemay did not personally attend the contempt hearing. A paralegal from the office of Lemay’s current counsel attended but withdrew from representation of Lemay. The circumstances of the paralegal’s withdrawal are set out in the endorsement from December 1, 2015:
[David Sammon, paralegal agent for Mr. Croiset Van Uchelen] withdrew as he did not have any instructions from Mr. Croiset and Mr. Croiset is not on the record. Furthermore, Mr. Sammon had no instructions and clearly did not know who he was representing or what he truly was asking for.
33With the contempt hearing having proceeded and a finding of contempt having been made by the Deputy Judge, the remedy available to Lemay was to appeal the order made in December 2015. There is no evidence of any appeal having been taken from that order.
34The end result of the contempt hearing was that a notice to debtor was issued; the matter was referred to the Superior Court of Justice for “further disposition”; and Lemay was ordered to pay Garnier the sum of $500 in costs. The notice to debtor is dated December 23, 2015. It reads as follows:
You failed to attend a Small Claims Court contempt hearing. A copy of the Judge’s order is enclosed.
As a result of your failure to attend the contempt hearing, a judge of the Small Claims Court has ordered that this matter be referred to a judge of the Superior Court of Justice for further action, which may result in the issuance of A WARRANT FOR YOUR IMMEDIATE ARREST. Should a warrant be issued, the police will be directed to arrest you to compel your attendance at a contempt hearing.
You are hereby notified that this file will be referred to a judge of the Superior Court of Justice 30 days from the date of this Notice, unless you make a Motion before a Small Claims Court judge on notice to the creditor(s) within 30 days to:
a. set aside the order referring this matter to a judge of the Superior Court of Justice;
b. address your failures to attend a judgment debtor examination and contempt hearing; and
c. attend an immediate judgment debtor examination on the day of the Motion (or as soon as possible thereafter).
35The notice to debtor continues with information as to what must be filed with the Small Claims Court for the purpose of the motion referred to in paragraph ‘a’ above, and as to the documents to be provided to the presiding Deputy Judge on the return of the motion. In addition, direction is given to forms and self-help materials available from various provincial and court websites or from attending in person at the Small Claims Court.
36There is no evidence that Lemay took steps, within 30 days of the date of the notice to debtor, to bring a motion for an order setting aside the finding of contempt or for any of the other potential relief identified in the notice to debtor. Lemay has offered no explanation as to why he failed to do so.
37In response to the notice to debtor, Lemay brought this motion, originally without notice to Garnier, returnable in the Superior Court of Justice.
38Lemay has provided no explanation as to why he delayed from December 2015, when the finding of contempt was made, to respond in any way to that finding.
39Although Counsel for Lemay was not on the record on December 1, 2015, he was clearly assisting Lemay in some way given that a paralegal from counsel’s office attended at the contempt hearing. I draw an inference and find that from December 1, 2015, to the present, Lemay has either been assisted informally or represented by counsel with respect to the proceedings in the Small Claims Court and in this Court.
40I make that finding specifically because of Lemay’s failure, even with the assistance of and representation by counsel, to pursue the remedies available to him (with those remedies clearly set out in the notice to debtor). Small Claims Court is intended to provide access to justice for individuals who, like Garnier, are self-represented. It is one thing to excuse a lay person, who is self-represented, from strict compliance with the Rules and the various steps required in a matter. It is another thing to excuse a party who is represented or, at a minimum, assisted by counsel from compliance with the Rules.
41In summary, the December 2015 finding that Lemay is in contempt of the Small Claims Court remains in effect. I find that Lemay has not purged his contempt of the Small Claims Court.
Issue No. 2 – Enforcement of Judgment
a) Chronology of Events, Post-Judgment
42Set out below is a history of Garnier’s efforts, from March 2015 to July 2016, to enforce the Judgment:
May 12, 2015 Notice of garnishment was issued in which it is identified that the amount owing as of that date was $39,885.59. [9]
May 25, 2015 The garnishee, Hydro Ottawa Limited, delivered an affidavit in which it is stated that 20 per cent of Lemay’s net wages ($358.62) [10] and net overtime pay would be remitted to the Clerk of the Small Claims Court commencing on June 4, 2015.
May 28, 2015 The plaintiff obtained a notice of examination from the Small Claims Court. The EOD was scheduled for July 7, 2015. The amount said to be owed as of May 28, 2015 was $39,831.25. [11]
Jul. 6, 2015 An appeal of the March 2015 judgment of Deputy Judge Fortier (as she then was) to the Divisional Court is said by Lemay to have been filed on this date. The “appeal” is discussed in greater detail below.
Jul. 7, 2015 Garnier attended for the EOD of Lemay. As to what transpired on this date,
It is Lemay’s evidence that Garnier did not file an affidavit of service with respect to the EOD as a result of which the EOD was “adjourned”.
Garnier’s explanation is that Counsel for Lemay appeared on the EOD and was successful on a motion made before the Small Claims Court in obtaining an adjournment of the EOD.
The endorsement made by the presiding Deputy Judge reads as follows:
Motion adjourned to permit responding materials to be filed no later than July 31, 2015.
Examination of D’Aoust to take place at the same time after service of notice on him or Lemay.
Aug. 14, 2015 Lemay’s motion for an order suspending the garnishment, based on the purported appeal of the judgment to the Divisional Court, was heard by Deputy Judge Bansie. He denied the request for suspension of the garnishment. He made an order that there be no distribution to Garnier of the funds garnished “until the final disposition of this matter, which has been appealed.” He also ordered that the costs of the motion be reserved to the final disposition of the matter.
Oct. 8, 2015 The second EOD was scheduled to proceed on this date. The Deputy Judge presiding (the signature is illegible) made the following endorsement:
No one appearing for either Defendant although properly served as appears from the Affidavits of Service, filed, ordered to a contempt hearing. Costs of today to the Plaintiff v. the Defendants fixed in the sum of $500.
Dec. 1, 2015 The contempt hearing proceeded before a Deputy Judge and resulted in the following:
a) A finding that Lemay and D’Aoust were in contempt of the Small Claims Court;
b) A notice to debtor was issued; [12] and
c) An award of costs in the amount of $500 was made in favour of Garnier against “the Defendants”.
The contents of the notice to debtor are set out in paragraph 34, above.
Mar. 4, 2016 A motion by Garnier proceeded before Deputy Judge Bansie on this date. There is no evidence from Garnier or Lemay as to the nature of the motion.
A copy of the endorsement of Deputy Judge Bansie is included as a document in the motion record on behalf of Lemay (i.e. it is not included as an exhibit to the Lemay affidavit). The endorsement indicates that there was no material filed on Lemay’s behalf in response to the motion. It is noted that a paralegal attended on behalf of Lemay.
Pursuant to the endorsement:
a) Garnier is entitled to information from Hydro Ottawa Limited (Lemay’s date of birth);
b) Lemay is to provide Garnier with certain information related to the co-defendant and judgment debtor, D’Aoust;
c) “All funds currently held in trust regarding this matter by [Counsel for Lemay] shall be paid into Court forthwith”; and
d) Garnier was awarded costs in the amount of $200. [13]
43On the return of Lemay’s motion before me in March 2016, I temporarily suspended the March 4, 2016 endorsement of Deputy Judge Bansie. I did so pending the outcome of the matter before me.
44In May 2016, Garnier brought the matter back before Deputy Judge Bansie. Garnier obtained an order, which in the words of the Deputy Judge, was intended to address the “live and substantial issues regarding the release of funds and the conduct of the parties during the course of this litigation.” Pursuant to the terms of the May 2016 endorsement, this Court was referred the issue of potential contempt on the part of Lemay’s counsel and the issue of potential contempt on the part of the defendants in the Small Claims Court action and the garnishee Hydro Ottawa. For the sake of clarity, I set out the terms of the May 2016 endorsement in their entirety:
a) [A]s Mr. Croiset Van Uchelen has not complied with my order of March 4, 2016 this matter is to be placed before a Superior Court Judge for a contempt hearing;
b) [A]s the Defendants and garnishee Hydro Ottawa have also not complied with my order of March 4, 2016, those non-compliances shall also be addressed at a contempt hearing before a Superior Court Judge;
c) [T]he Plaintiff shall only communicate with counsel for Alain Lemay and his spouse Ms. Angele D’Aoust-Lemay, namely Mr. Croiset Van Uchelen and not with either individual directly;
d) [P]aragraphs 1 and 2 of my order of March 4, 2016 are repeated and confirmed.
The Plaintiff shall have costs for today fixed at $100.
45The contempt hearing arising from paragraphs (a) and (b) of the May 2016 endorsement is addressed under Issue No. 3 below.
b) Positions of the Parties
i) Lemay
46Lemay relies on rule 20.02(2), which provides as follows: “While an order for periodic payment is in force, no step to enforce the judgment may be taken or continued against the debtor by a creditor named in the order, except issuing a writ of seizure and sale of land and filing it with the sheriff.”
47Lemay submits that an order for garnishment is “an order for periodic payment” within the meaning of rule 20.02(2); therefore, because Garnier chose to proceed by way of garnishment, he is precluded from taking any steps to enforce the judgment other than to have a writ of seizure and sale issued and filed with the sheriff.
48It is Lemay’s position that his interpretation of rule 20.02(2) reflects a balance between the entitlement of a judgment creditor to enforce a judgment and protection of a judgment debtor from continuous and/or persistent pursuit by a judgment creditor. Lemay submits that this balance is particularly important when the judgment creditor is an institution and has the financial means to pursue more than one method of enforcement and, by doing so, essentially harass a judgment debtor.
ii) Garnier
49Garnier’s position is that garnishment is not “an order for periodic payment” within the meaning of the Rules. Garnier submits that recovery of a judgment through garnishment is not the result of the judgment debtor making an effort to pay the judgment; rather, it is money owed to the judgment debtor (by his or her employer) being channelled to the judgment creditor.
50It is Garnier’s position that “an order for periodic payment”, as referred to in rule 20.02(2), means an order made pursuant to rule 20.10(7). Rule 20.10 deals generally with an examination of a debtor or another person. In rule 20.10(7), it is provided that “[a]fter the examination or if the debtor’s consent is filed, the court may make an order as to payment.”
51Garnier submits that the types of orders that result in a prohibition from the pursuit of other methods of enforcement include orders made pursuant to rule 20.10(7). Garnier points to rule 20.10(8), titled “Enforcement Limited while Order as to Payment in Force”. That rule provides that, “[w]hile an order as to payment is in force, no step to enforce the judgment may be taken or continued against the debtor by a creditor named in the order, except issuing a writ of seizure and sale of land and filing it with the sheriff.”
52It is also Garnier’s position that the examination of a debtor (“EOD”) is not a method of enforcement. Garnier submits that an EOD is a mechanism by which the judgment creditor is able to secure information upon which to base decisions and take steps with respect to enforcement of a judgment.
53In summary, Garnier submits that there is nothing to preclude him from requiring Lemay to attend an EOD even though garnishment proceedings have been taken.
c) Analysis
54Rule 20 deals with “Enforcement of Orders” and sets out the methods available to a judgment creditor to enforce a judgment or an order. The methods of enforcement include garnishment, the issuance of a writ of seizure and sale, consolidation of multiple debts, an order for payment, and a contempt hearing.
i) Examination of a Debtor
55The process for an EOD is addressed in Rule 20. However, I find that such an examination is not an enforcement mechanism per se.
56The “Commentary” that appears under rule 20.10(1) states the following: “If there is a default in payment of a debt pursuant to a judgment, the creditor may require the debtor or other person to be examined for the purposes of assessing the debtor’s assets which may be available for satisfying the judgment.” [14] Thus, an EOD is intended to permit a judgment creditor to gather information upon which to base decisions as to which enforcement mechanisms will be pursued.
57The scope of an EOD is prescribed by rule 20.10(4) and includes the following:
(a) the reason for nonpayment;
(b) the debtor’s income and property;
(c) the debts owed to and by the debtor;
(d) the disposal the debtor has made of any property either before or after the order was made;
(e) the debtor’s present, past and future means to satisfy the order;
(f) whether the debtor intends to obey the order or has any reason for not doing so; and
(g) any other matter pertinent to the enforcement of the order.
58The EOD is carried out before a Deputy Judge, in the absence of the public, with the judgment debtor giving evidence under oath, and the proceeding recorded. [15] The EOD provides the presiding Deputy Judge with the opportunity to assess the debtor’s means and assets and determine what is reasonable in terms of an order for payment.
59At the conclusion of the EOD, the presiding Deputy Judge is in a position, either on the basis of the exercise of discretion or on the consent of the debtor, to make an order for payment. [16] The type of payment ordered depends on the assets and sources of income disclosed on the EOD. The Deputy Judge clearly has the discretion to make an order for one or both of a lump sum payment and a periodic payment.
ii) Protection Afforded to a Judgment Debtor
60Lemay relies on rule 20.02(2) as a prohibition against a judgment creditor pursuing an EOD when garnishment proceedings have been taken. In my view, that position is not supported by the wording of Rule 20.
61Rule 20.02 sets out the power of the Small Claims Court to deal with an order of the court (rule 20.02(1)), what a judgment creditor may do when an order for periodic payment has been made (rule 20.02(2)), and termination of an order for periodic payment on default of payment by the judgment debtor (rules 20.02(3) and (4)). It is important to highlight that rule 20.02(1) deals with “an order of the court” and rules 20.02(2), (3), and (4) deal with “an order for periodic payment”.
62Rule 20.02 reads as follows:
(1) The court may,
(a) stay the enforcement of an order of the court, for such time and on such terms as are just; and
(b) vary the times and proportions in which money payable under an order of the court shall be paid, if it is satisfied that the debtor’s circumstances have changed.
(2) While an order for periodic payment is in force, no step to enforce the judgment may be taken or continued against the debtor by a creditor named in the order, except issuing a writ of seizure and sale of land and filing it with the sheriff.
(3) The creditor may serve the debtor with a notice of default of payment (Form 20L) in accordance with subrule 8.01 (14) and file a copy of it, together with an affidavit of default of payment (Form 20M), if the debtor fails to make payments under an order for periodic payment.
(4) An order for periodic payment terminates on the day that is 15 days after the creditor serves the debtor with the notice of default of payment, unless a consent (Form 13B) in which the creditor waives the default is filed within the 15-day period.
63The “History” given of rule 20.02(2) says, “New provision, prohibiting the creditor from taking steps to enforce a judgment except by writ of seizure and sale of land. This change extends the protection a debtor currently receives”. [17]
64In my view, rules 20.02(3) and (4) provide a remedy for a creditor who, after obtaining a periodic payment, is faced with a default in payment by the judgment debtor. Without rules 20.02(3) and (4), the “protection” afforded to a judgment debtor ordered to make periodic payments would remain in effect even if the judgment debtor fails to comply with the order. Absent provisions to assist a judgment creditor when the judgment debtor has defaulted on a periodic payment, the latter would continue to be protected and the former would not be entitled to pursue any other mechanism by which to enforce the judgment.
65As noted above, at the conclusion of an EOD, the presiding Deputy Judge has the jurisdiction to make “an order as to payment”. [18] There is protection afforded to a judgment debtor who is subject to an order as to payment. That protection is found in rule 20.10(8) which provides as follows: “While an order as to payment is in force, no step to enforce the judgment may be taken or continued against the debtor by a creditor named in the order, except issuing a writ of seizure and sale of land and filing it with the sheriff.”
66The “History” given of rule 20.10(8) identifies that it is a new provision intended to extend the protection from other types of enforcement proceedings that a debtor enjoys under a consolidation order. [19]
67Consolidation orders are addressed in rule 20.09. Pursuant to rule 20.09(1), “[a] debtor against whom there are two or more unsatisfied orders for the payment of money may make a motion to the court for a consolidation order.” The protection afforded to a judgment debtor who obtains a consolidation order is set out in rule 20.09(9). That rule is worded similarly to rules 20.02(2) and 20.10(8) and provides that, “[w]hile the consolidation order is in force, no step to enforce the judgment may be taken or continued against the debtor by a creditor named in the order, except issuing a writ of seizure and sale of land and filing it with the sheriff.”
68Protection is afforded to a judgment debtor pursuant to rules 20.02(2), 20.09(9), and 20.10(8) specifically because a Deputy Judge has made an order addressing the manner in which the judgment debtor is to pay the amount awarded to the judgment creditor. The entitlement of the judgment debtor to such protection only arises if, after a trial judge has rendered his or her decision, a subsequent order, such as an order for periodic payment or a consolidation order, is made. The protection afforded to a judgment debtor ordered to make a periodic payment is lost if the judgment debtor fails to make one of the periodic payments.
69In summary, rules 20.02, 20.09, and 20.10 provide the Small Claims Court with the mechanisms by which to control the enforcement process, while at the same time providing protection for both the judgment creditor and the judgment debtor.
iii) Garnishment Proceedings
70Rule 20.08 governs garnishment proceedings. There is nothing in rule 20.08 that is in any way similar to the protection afforded to a judgment debtor in the aforementioned rules. I find that the protection afforded to a judgment debtor pursuant to any one or more of rules 20.02(2), 20.09(9), and 20.10(8) does not arise when the judgment creditor has proceeded by way of garnishment.
71The garnishment proceeding does not involve an order of the Small Claims Court requiring the judgment debtor to make a payment to the judgment creditor. Garnishment involves the diversion of funds, otherwise payable to the judgment debtor, to the benefit of the judgment creditor.
72In my view, it makes sense that a judgment debtor whose wages are being garnished, but who is not otherwise making any direct payment to the creditor, may still be the subject of an EOD. Without the benefit of an EOD, (a) the Small Claims Court does not have an opportunity to control the enforcement process, including by way of ensuring a timely payment of the judgment debt, and (b) the judgment creditor does not have the opportunity to determine the assets and income of the judgment debtor and, with that information in hand, the enforcement mechanisms available and that if pursued, may result in payment of the balance owing on a judgment.
iv) Summary
73I agree with Garnier and find that he was and remains entitled to proceed with an EOD of Lemay. The garnishment process in effect does not preclude Garnier from conducting an EOD of Lemay.
74I note that Garnier was also attempting to conduct an EOD of D’Aoust. I find that there is nothing preventing Garnier from proceeding with that EOD. Pursuant to the endorsement of the Deputy Judge of the Small Claims Court dated July 7, 2015, the EOD of D’Aoust is to take place at the same time as the EOD of Lemay. That requirement is reflected in the order made in the concluding section of this endorsement.
75In his cross-motion, Garnier requests an order requiring Lemay to obtain, from his spouse, D’Aoust’s date of birth of, current address, and current occupation. Garnier will be in a position to secure that information when he conducts the EODs of Lemay and D’Aoust. That aspect of Garnier’s cross-motion is therefore dismissed.
Issue No. 3 – Relief and Multiplicity of Proceedings
76As of the date of this endorsement, the proceedings arising from the March 2015 judgment are as follows:
a) Divisional Court File No. DC-15-2130, which I find includes only a notice of motion for an order extending the time within which to file an appeal from the judgment (the June 2015 document filed in July 2015);
b) A finding that Lemay is in contempt of the Small Claims Court (December 1, 2015 endorsement of Deputy Judge Bansie) and a notice to debtor issued pursuant to that finding (December 23, 2015), referring the matter to the Superior Court of Justice;
c) A finding that Lemay, D’Aoust, and Hydro Ottawa failed to comply with the March 4, 2016 order of Deputy Judge Bansie and the referral of that matter to the Superior Court of Justice for a contempt hearing (May 27, 2016 endorsement of Deputy Judge Bansie); and
d) A finding that Counsel for Lemay failed to comply with the March 4, 2016 order of Deputy Judge Bansie and the referral of that matter to the Superior Court of Justice for a contempt hearing (May 27, 2016 endorsement of Deputy Judge Bansie).
77When Garnier and Counsel for Lemay were before me in February 2017, they were in agreement that I am to deal with the matters of contempt referred by Deputy Judge Bansie to the Superior Court of Justice (May 27, 2016 endorsement). Based on that agreement, I find that both Garnier and Lemay consent to an order dispensing with any additional steps that might otherwise have been required pursuant to the Rules to bring before me the matters arising from the May 27, 2016 endorsement of Deputy Judge Bansie.
78There is no evidence that Hydro Ottawa (Lemay’s employer) was given notice of the return of the matter before me in July 2016 or in February 2017. As a result, I am not in a position to address, by way of a contempt hearing, the failure of Hydro Ottawa to comply with the March 2016 endorsement of the Deputy Judge. The contempt hearing in that regard is to be brought back pursuant to the terms of the order made in the “Relief Granted” section of this endorsement.
79In determining the relief to be granted at this time, I have considered the conduct of both Lemay and his counsel. Summarized below are my concerns with respect to the Divisional Court file, the December 2015 contempt hearing and steps taken in response to the finding of contempt at the conclusion of that hearing, and Lemay’s motion before the Superior Court of Justice.
a) Divisional Court File
80The “appeal”, such as it is, from the judgment at trial of Deputy Judge Fortier (as she then was) is to the Divisional Court. To date, the only step taken with respect to an appeal is the filing of a notice of motion in Divisional Court for an order extending the time within which to file a notice of appeal. That notice of motion was filed in July 2015, almost two years ago.
81It is on the basis of Lemay’s Divisional Court proceeding that Garnier is prohibited from receiving the funds garnished from Lemay’s wages. The evidence upon which that prohibition is based is limited to a statement made by an employee of Counsel for Lemay in the employee’s June 2015 affidavit. The employee’s evidence was “that [Counsel for Lemay] has taken the necessary steps to file a Motion and seek to appeal the Judgment granted in [Small Claims Court] pursuant to Rule 61.03 of the Rules of Civil Procedure.” Included as an exhibit to the employee’s affidavit is a copy of the notice of motion in Divisional Court File No. DC-15-2130. That notice of motion is dated June 31, 2015. The relief requested therein is “An Order extending the time to file a Notice of Appeal pursuant to Rule 61.04(1).” [20]
82To date, Lemay has filed only one document with the Divisional Court – the notice of motion. It identifies “The Affidavit of Alain Lemay and exhibits attached thereto” as the documentary evidence upon which Lemay intends to rely in support of his request for an order extending the 30-day deadline within which to appeal the judgment of Deputy Judge Fortier (as she then was).
83The record before me does not include a copy of an affidavit in Lemay’s name in Divisional Court. Lemay has had (a) since June 2015 to file such an affidavit and (b) from March 2016 to February 2017 to place such an affidavit before this Court, the latter as evidence of steps taken to advance the motion filed with the Divisional Court. In all of the circumstances, I draw an inference and find that as of February 2017 no affidavit in Lemay’s name had been filed with the Divisional Court.
84The only evidence from Lemay with respect to the Divisional Court file is the following statement, made in his affidavit sworn on March 9, 2016 (i.e. the affidavit filed in support of the motion originally made without notice): “I am further advised by my counsel, Mr. Croiset Van Uchelen, that on or about July 6, 2016, an Appeal of the Judgment granted by the Small Claims Court was filed in the Divisional Court at Ottawa. I am advised that the status of the appeal is currently pending.”
85There is a litany of problems with (a) the “appeal” to and the notice of motion filed with the Divisional Court and (b) Lemay’s reliance on them in the context of the matters before me.
86First, Lemay’s statement that “an Appeal of the Judgment … was filed in the Divisional Court at Ottawa” is not supported by the documentary or any other evidence. I appreciate that the March 2016 affidavit in Lemay’s name was likely not drafted by him. However, Lemay had the ability and opportunity to read the relevant paragraph of the affidavit and the notice of motion in Divisional Court. The latter document is attached as an exhibit to Lemay’s affidavit.
87As a lay person, Lemay may not have understood the difference between an appeal, a notice of appeal, and a notice of motion for an order extending the time within which to file a notice of appeal. However, his evidence in that regard is said to be based on information provided to him by his counsel.
88No doubt Counsel for Lemay understands the difference between an appeal, a notice of appeal, and a notice of motion for an order extending the time within which to file a notice of appeal. At a minimum, (a) the relevant paragraph of the Lemay affidavit was carelessly drafted and (b) Counsel for Lemay was cavalier in his approach to the information which he imparted to his client when the client swore the affidavit. I note that the affidavit was commissioned by Counsel for Lemay. I find that Counsel for Lemay was aware that Lemay swore an affidavit that was at least in part untrue.
89The back page of the notice of motion in Divisional Court bears a date stamp identifying that the document was filed with the “Superior Court of Justice at Ottawa” on July 6, 2015. There is no evidence in the record before me of any steps being taken with respect to the Divisional Court file other than to file the notice of motion on July 6, 2015.
90In his affidavit sworn in June 2016, Garnier said that he had not, as of that date, been served with the notice of motion in Divisional Court. It is Garnier’s evidence that to his knowledge nothing had been done by Lemay, other than to file the notice of motion. In the same affidavit, Garnier said that to his knowledge Lemay had never filed an appeal of the March 2015 Judgment.
91I find that Lemay has taken no steps since July 6, 2015 to advance the matter in Divisional Court. In all of the circumstances, I find that his failure to do so is part of a concerted, deliberate effort on his part to obfuscate Garnier’s attempts to enforce the judgment. It was and remains to Lemay’s advantage to do nothing in relation to the Divisional Court file given the prohibition against the distribution of funds garnished pending the “appeal” being heard.
92I am not in a position at this time to grant any relief with respect to the matter in Divisional Court. Pursuant to the decision in Meridian Property Management v. Fournier, [21] a judge should not extend the time for an appeal to the Divisional Court unless he is functioning at the time as a judge of that Court. I am therefore not in a position to dismiss Lemay’s motion in Divisional Court.
93There is no evidence before me of an “administrative dismissal” of the Divisional Court file (i.e. on the basis that nothing has been done by Lemay other than to file the notice of motion).
94I find in all of the circumstances that it is not sufficient for Lemay to come before this Court and take the position that he has done nothing with respect to the Divisional Court file because he was waiting to hear from that Court as to a “hearing” date and/or the next step required of him. In the “Relief Granted’ set out below, I include terms intended to ensure that the Divisional Court matter is moved forward by Lemay in a timely manner.
95In accordance with the practice in Ottawa, it is open to Lemay (assuming he intends to pursue his motion in Divisional Court) to choose whether the motion is to be heard in writing or orally. I am certain that Lemay is, through his counsel, aware that if he chooses to proceed with the motion in writing, it remains open to the Judge before whom the motion materials are placed to require that the motion proceed orally.
b) Small Claims Court and Contempt
96I have already determined that the finding of contempt against Lemay, made in December 2015, stands.
97There are two additional matters referred for a contempt hearing pursuant to the endorsement of Deputy Judge Bansie dated May 2016. In that endorsement, it was identified that Counsel for Lemay and Lemay personally had each failed to comply with the March 2016 endorsement of Deputy Judge Bansie. I had, however, temporarily suspended the terms of the March 2016 endorsement. In all of the circumstances, I find that it is no longer reasonable for the terms of the March 2016 endorsement to be suspended. The suspension is lifted and a term to that effect is set out in the “Relief Granted” section below.
98In light of the two “competing” endorsements, I am not prepared at this time to make a finding of contempt against either Counsel for Lemay or Lemay personally on the basis of their respective failure to comply with the March 2016 order of Deputy Judge Bansie.
99The relief granted below includes a number of terms to address the multiplicity of proceedings, including that the matter is to be returned before this Court for the purpose of monitoring the status of the various proceedings. The relief granted is such that it will be absolutely clear to all of the defendants to the Small Claims Court action and to Hydro Ottawa that the March 4, 2016 endorsement of Deputy Judge Bansie is in force and effect.
Costs Orders to Date
100A number of costs orders in favour of Garnier have been made to date in the Small Claims Court and one such order has been made in this Court (the “Costs Awards”). In summary, the Costs Awards include the following:
Oct. 2015 When the EOD was adjourned and the matter referred for a contempt hearing in Small Claims Court, the presiding Deputy Judge ordered that Lemay pay to Garnier costs in the sum of $500.
Dec. 2015 At the conclusion of the contempt hearing, Deputy Judge Bansie ordered that Lemay pay Garnier costs in the sum of $500.
Mar. 2016 At the conclusion of a motion heard on this date, Deputy Judge Bansie ordered costs in favour of Garnier in the sum of $200. As noted above, the order does not specify which of the defendants is to pay costs. However, Lemay was the only defendant before the Deputy Judge on that date. I therefore infer that he is the party responsible for costs.
May 2016 At the conclusion of a motion heard on this date, Deputy Judge Bansie ordered costs in favour of Garnier in the sum of $100. Once again, as Lemay was the only opposing party who attended on this matter, I infer that he is the party responsible for costs.
Sept. 2016 By his consent, Counsel for Lemay was ordered by this Court to pay costs of $500 to Garnier on or before October 14, 2016.
101Excluding the costs awarded to Garnier at trial, Lemay has over time been ordered to pay Garnier a total of $1,300 in costs and Counsel for Lemay has been ordered to pay Garnier $500 in costs. There is no evidence before this Court as to whether the costs awards have been paid.
102The relief granted includes terms requiring that evidence be provided to this Court as to (a) the costs paid to date by Lemay and (b) the costs paid by Counsel for Lemay. Lemay is responsible to provide the Court with the requisite evidence when the matter is next returnable before me. The materials placed before the Court are to include the documentary and other evidence deemed necessary by or on behalf of Lemay to identify (a) costs paid, (b) costs, if any, that remain unpaid, and (c) for any costs that remain unpaid, the reasons why they remain unpaid.
Claim for Damages
103The relief sought by Garnier on his cross-motion includes an order for “Compensation for Inconvenience and Expense as outlined in Small Claim[s] Court Rule 19.06”. Garnier seeks $5,000 in compensation on the basis of what he described as Lemay’s unreasonable and untruthful conduct in these matters. For example, Garnier identified that he has been required to attend in court (this Court and the Small Claims Court) on at least 12 occasions in an effort to secure payment of the Judgment.
104It is, in my view, premature to consider Garnier’s request for compensation. A number of the matters addressed in this endorsement and the terms of the order set out below may be relevant to consideration of Lemay’s conduct since the release of the judgment. This aspect of the cross-motion is therefore adjourned. When the matter is next before me, I shall address the date on which the remaining portions of Garnier’s cross-motion are to be heard.
105Once again, in an effort to avoid a multiplicity of proceedings, I shall, when hearing Garnier’s cross-motion for an order for compensation pursuant to rule 19.06, hear that portion of Garnier’s cross-motion relating to Lemay’s alleged failure to comply with my endorsement of March 11, 2016.
Contempt Hearings and Warrant for Committal
106It is expeditious and cost-effective to consider all issues of contempt and the consequences of any contempt found (to date or in the future) in the context of a single hearing.
107The contempt hearings arising from the May 27, 2016 endorsement of Deputy Judge Bansie are adjourned until this matter is next before me.
108As part of his cross-motion, Garnier requests that a warrant of committal be issued against Lemay arising from the finding of contempt made in December 2015 by the presiding Deputy Judge. That aspect of the cross-motion is adjourned until this matter is next before me.
Relief Granted
109For the reasons set out above, I order as follows:
a) Motion and Cross-Motion Generally
The motion on behalf of Lemay is dismissed.
Garnier’s cross-motion with respect to the provision to him of D’Aoust’s date of birth, current address, and current occupation is dismissed, without prejudice to Garnier requesting that information at the EOD of one or both of Lemay and D’Aoust.
The following portions of the cross-motion on behalf of Garnier are adjourned to a date more than 60 days following the release of this endorsement and are to be brought back by Garnier on notice to Lemay in accordance with the Rules of Civil Procedure:
a) Whether Lemay failed to comply with my endorsement dated March 11, 2016;
b) Whether a warrant of committal is to be issued for Lemay by reason of the finding of contempt made by the Deputy Judge of the Small Claims Court in December 2015; and
c) Scheduling a date for the determination of whether Garnier is entitled to compensation for inconvenience and expense (pursuant to rule 19.06 of the Rules of the Small Claims Court).
b) Examination of Debtor
Garnier shall proceed with an examination of debtor, pursuant to the Rules of the Small Claims Court, of Lemay and, if Garnier so chooses, D’Aoust.
In the event Garnier proceeds with an examination of debtor of D’Aoust, that examination shall take place at the same time as the examination of debtor of Lemay (i.e. in accordance with the July 7, 2015 endorsement of the Deputy Judge of the Small Claims Court).
c) Divisional Court File
- In the event Lemay no longer intends to proceed with the motion in Divisional Court, Lemay shall:
a) Within 20 days of the date of this endorsement, serve on Garnier, in accordance with the Rules of Civil Procedure, a notice of abandonment of the motion; and
b) Within 10 days of service of the notice of abandonment, file same together with the related affidavit of service, with the Divisional Court.
- In the event Lemay intends to proceed with the motion in Divisional Court, Lemay shall:
a) Within 20 days of the date of this endorsement, serve, in accordance with the Rules of Civil Procedure, the notice of motion dated June 29, 2015 in Divisional Court file no. DC-15-2130 and all of the documentary evidence upon which he intends to rely in support of the motion (the “Motion Record”); and
b) Within 10 days of service of the notice of motion and the Motion Record, file same together with the related affidavit of service, with the Divisional Court.
The Motion Record shall, in addition to including the notice of motion and supporting documentary evidence, include a copy of this endorsement and the order, if any, taken out pursuant to this endorsement.
Garnier shall, within the time prescribed by the Rules of Civil Procedure, serve and file his responding materials to Lemay’s motion in Divisional Court.
Lemay shall, within the time prescribed by the Rules of Civil Procedure, serve and file his reply materials, if any.
Lemay shall, no later than five days prior to the return of this matter before me, serve on Garnier and file with this Court a supplementary motion record (the “Supplementary Motion Record”) including evidence as to:
a) The steps taken, if any, subsequent to the date the notice of motion was originally filed with the Divisional Court, to have the motion heard with respect to the request for an order extending the deadline within which to file a notice of appeal; and
b) The status of the Divisional Court proceeding.
d) March 4, 2016 Endorsement of Deputy Judge Bansie
Lemay shall, within 30 days of the date of this endorsement, comply with the terms of the March 4, 2016 endorsement of Deputy Judge Bansie.
Lemay shall include in the Supplementary Motion Record documentary evidence and any other evidence he deems necessary of his compliance with the March 4, 2016 endorsement of Deputy Judge Bansie.
Claudius Croiset Van Uchelen (“Counsel for Lemay”) shall, within 30 days of the date of this endorsement, comply with the terms of the March 4, 2016 endorsement of Deputy Judge Bansie.
Counsel for Lemay shall include in the Supplementary Motion Record documentary evidence and any other evidence he deems necessary of his compliance with the March 4, 2016 endorsement of Deputy Judge Bansie.
e) Contempt Hearings and Warrant of Committal
The contempt hearing with respect to Lemay, D’Aoust, and Hydro Ottawa arising from the March 4, 2016 endorsement of Deputy Judge Bansie shall be brought before this Court when the matter is next before me.
The contempt hearing arising from the May 27, 2016 endorsement of Deputy Judge Bansie is adjourned to the next time this matter is before me.
Garnier shall take the necessary steps to bring the contempt hearings referred to in paragraphs 16 and 17, above, before this Court.
Garnier shall take the necessary steps to serve on the defendants to the Small Court action, other than Lemay, and on Hydro Ottawa, a copy of each of the following documents:
a) The order taken out pursuant to this endorsement
b) The March 4, 2016 endorsement of Deputy Judge Bansie; and
c) The May 27, 2016 endorsement of Deputy Judge Bansie.
- Service of the documents listed in paragraph 19, above, on the defendants to the Small Claims Court action, other than Lemay, and on Hydro Ottawa shall be effected (a) within 20 days of the date on which the order is issued and entered, and (b) in accordance with the Rules of the Small Claims Court.
Costs of the Motion and Cross-Motion
110The issue of costs of Lemay’s motion and Garnier’s cross-motion shall be determined following the determination of the matters referred to in paragraph 109, above, to be brought back before me.
Madam Justice Sylvia Corthorn
Date: May 16, 2017
COURT FILE NO.: 16-67840 DATE: 2017/05/16 ONTARIO SUPERIOR COURT OF JUSTICE RE: SEBASTIEN GARNIER, Plaintiff AND ALAIN LEMAY, Defendant BEFORE: Madam Justice Sylvia Corthorn COUNSEL: Sebastien Garnier, acting in person Claudius Croiset Van Uchelen, for the defendant AMENDED ENDORSEMENT Madam Justice Sylvia Corthorn
Released: May 16, 2017
1Endorsement of Deputy Judge Bansie, dated August 14, 2015.
2As set out in my July 7, 2016 endorsement, I found that Garnier’s failure to meet the deadlines arose from the failure of Counsel for Lemay to communicate to Garnier that, despite having represented that Lemay intended to deliver additional motion materials, it was no longer his intention to do so. The delay on the part of Garnier in delivering his materials arose from him “waiting” to receive Lemay’s additional materials, with no such materials ever delivered.
3In my hand-written endorsement from September 2016, the deadline is identified as being in the year 2017. That was an error and, given the manner in which the deadline was otherwise identified (by day of the week and date of the month), it was clear that the deadline was October 14, 2016.
4O. Reg. 258/98 (“Rules”). Note: Unless otherwise identified, all rules referenced in this endorsement are from the Rules of the Small Claims Court.
5R.S.O. 1990, c. C.43.
6See also rules 20.11(7) and (8) with respect to the powers of the Deputy Judge presiding over a contempt hearing. In Ottawa, the practice is for Deputy Judges of the Small Claims Court to refer a matter to the Superior Court of Justice once a finding of contempt has been made. This practice is at the direction of the Regional Senior Justice of the East Region.
7Ontario Small Claims Court Practice, 2015 (Toronto: Carswell, 2014), at p. 912.
8See r. 20.11(4).
9The total is based on the judgment of $25,000 plus pre-judgment interest of $11,456.10, costs of $3,000, post-judgment interest of $329.49, and $100 for costs incurred after judgment.
10Lemay’s net wages were identified as $1,793.11 on a bi-weekly basis. Twenty per cent of that amount is $358.62.
11The total is based on the judgment of $25,000 plus pre-judgment interest of $11,456.10, costs of $3,000, post-judgment interest of $240.25, and $135 for costs incurred after judgment. I note that the amount claimed for post-judgment interest is less (by $89.24) and the amount claimed for costs is more (by $35) than that set out in the notice of garnishment. There is no explanation in the record before me as to why the calculation of post-judgment interest differs from one document to the next. The increase in the amount claimed for costs is understandable given that additional steps were taken after the amount owing was first calculated.
12The notice to debtor included in the record before me is only addressed to Lemay. If a notice to debtor was issued against D’Aoust, a copy of that document is not in the record before me.
13The endorsement does not specify by whom the costs are to be paid. I infer, based on the event on the relevant date and the balance of the endorsement, that the costs are awarded against Lemay.
14Ontario Small Claims Court Practice, 2015, supra, at p. 886.
15Rule 20.10(6).
16Rule 20.10(7).
17Ontario Small Claims Court Practice, 2015, supra, at p. 855.
18Rule 20.10(7).
19Ontario Small Claims Court Practice, 2015, supra, at p. 888.
20Rule 61.04(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that the deadline within which to appeal to an appellate court is 30 days from the date on which the order being appealed was made. Rule 61.03, to which the employee refers in her affidavit, deals with motions for leave to appeal to the Divisional Court.