Court File and Parties
COURT FILE NO.: 15-55461 DATE: 2018/09/13 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
EMAD ELGUINDY and IRENE ELGUINDY Plaintiffs – and – AZIZ ELGUINDY and AFRODITE ELGUINDY Defendants
Counsel: Self-Represented (for Emad Elguindy and Irene Elguindy) Mitchell J. Bates, for the Defendant Afrodite Elguindy Aziz Elguindy, not appearing or defending this action (appeared self-represented for addendum).
HEARD: September 6, 2018
ADDENDUM TO JUDGMENT
TURNBULL J.
[1] The court issued judgment in this matter on August 7, 2018 cited as 2018 ONSC 4584. It has been drawn to my attention that I made a typographical error in paragraph 92 of that judgment. It is ordered that paragraph 92 shall be deleted and replaced with the following:
- The plaintiff Irene Elguindy shall have judgment against the defendants in the sum of $138,000, payable from the funds in court to the credit of this action, subject to further order of this court in accordance with comments above under the heading “Payment of the Judgment”.
[2] Pursuant to the request made in paragraph 83 and 84 of the judgment, the Crown Attorney of Brampton has located Garry Orchard. A copy of the letter from my office to the Crown Attorney was provided to all parties and a copy of the reply letter from the Crown Attorney was also provided to all parties. Garry Orchard was advised by letter from my office, with a copy to all parties, that he may attend before me today to discuss the status of the payment and enforcement of the restitution order made by Langdon J. in 2008.
[3] He attended before the court this morning. He was sworn as a witness. He testified that nothing has been paid to him by Mr. Elguindy with respect to the restitution order. He filed a copy of the restitution order with this court as exhibit 12. It clearly shows that it has been filed with the Superior Court of Justice in accordance with Section 741(2) of the Criminal Code of Canada. The Supreme Court of Canada in R. v. Fitzgibbon, [1990] 1 S.C.R. 1005 at p. 1016 stated that it is only when the restitution order is filed with the Superior Court of the province that it becomes an order enforceable against the person and property of the offender.
[4] Mr. Elguindy disputed that evidence and indicated that in fact he had repaid approximately $100,000 of Mr. Orchard’s funds to him but absolutely no documentary evidence was provided to support that contention. He agreed that an excess of $130,000 was still owing by him to Mr. Orchard.
[5] Mr. Elguindy opposes any order directing that the funds to which he is otherwise entitled under the judgment rendered by me in this case be paid to Mr. Orchard. His submissions were entered as exhibit 11 in these proceedings.
Analysis
[6] Once filed, the restitution order is treated as a civil judgment and Mr. Orchard would have all the accompanying enforcement methods. I find that he has filed the restitution order as required and that it can be enforced by him as a civil judgment.
[7] I concur with Mr. Elguindy that this court does not have the authority, on its own accord, to direct a civil judgment award to the recipient from the funds paid into court to the credit of this action based simply on the filing of the restitution order with the Superior Court of Justice.
[8] The reasons for this are quite simple. There may be other creditors who have obtained judgment against Mr. Elguindy and filed writs of execution with the sheriff. Mr. Elguindy may have declared bankruptcy and the funds would then be subject to the direction and control of his Trustee in Bankruptcy if he has not been discharged from bankruptcy. If there are other creditors, their claims to a pro-rata share of the funds in court payable to Mr. Elguindy would be defeated if this court directed payment of the $130,000 directly to Mr. Orchard.
[9] In my view, Mr. Orchard probably has to search executions province wide against Mr. Elguindy and obtain a certificate that there are no other outstanding judgments against him or alternatively, provide a certificate listing those execution creditors and the amounts owing. He also must conduct a bankruptcy search against Mr. Elguindy and provide a certificate of that search to the court. A certified copy of those certificates must be attached to an affidavit duly sworn by him that such searches are accurate. When that affidavit is completed, it should be served on Mr. Elguindy and Mr. Bates at the following addresses by pre-paid ordinary mail.
Emad Elguindy and Irene Elguindy: 701-480 Maple Avenue, Burlington, Ontario. L7S 1M4.
Mr. Mitch Bates, Barrister and Solicitor, 15 Bold Street, Hamilton, Ontario L8P 1T3.
[10] The original affidavit and affidavit of service should then be forwarded to my attention at the John Sopinka Courthouse, 45 Main Street East, suite 626, Hamilton Ontario L8N 2B7.
[11] Depending on the information received, and provided all appeals from the judgment and the ruling in this Addendum have been heard or the time to appeal from them has expired, subject to any further submissions from Mr. Elguindy or Mr. Bates, I then can issue the appropriate order for payment of the $130,000 out of court.
[12] In the ordinary course, Rule 72.03 of the Rules of Civil Procedure governs the payment of funds out of court. The usual application does not involve a third party seeking payment of funds from money paid into court to the credit of an action pending judgment of the court. Mr. Orchard is not be able to enforce his judgment by garnishment. He cannot seize the funds as property of Mr. Elguindy as part of the usual execution of a judgement.
[13] However, depending on the information received from Mr. Orchard as particularized in paragraph 8 hereof, this court can issue an order directing the Accountant of the Superior Court of Justice to pay funds out of court to the credit of the person named in the court order envisaged under Rule 72.03(2). [1]
[14] It is ordered that Mr. Bates shall prepare the judgment in this matter and present it to Mr. Elguindy for his approval as to form and content. If the parties cannot agree on the form and content, it is ordered that I shall be notified and the court will determine the appropriate form and content.
[15] It is ordered that Garry Orchard shall be served with a copy of this Addendum Ruling and all other documents related to this matter at the following address:
Mr. Garry Orchard, 6257 Main Street Stouffville, Ontario. L4A 4J3.
[16] I recognize that it is unusual for a court to be concerned with payment of a debt owing to a third party by Mr. Elguindy. However, due to the circumstances articulated by Langdon J. in his 2008 Reasons for Sentence and from my observation of Mr. Elguindy during this trial, I have no doubt he has no intention of paying any money to Mr. Orchard at any time and certainly not from any of the $130,000 judgment he has been awarded in this litigation.
[17] Mr. Orchard appeared before me and while he was able to express himself clearly and articulate his position, it is evident that he does suffer from a significant physical disability. In my view, in a case such as this, it is incumbent on a judge to make sure that justice is seen to be done. The enforcement of the Restitution Order of Langdon J. will provide at least some justice to Mr. Orchard.
Turnbull, J. Released: September 13, 2018
COURT FILE NO.: 15-55461 DATE: 2018/09/13 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: EMAD ELGUINDY and IRENE ELGUINDY Plaintiffs – and – AZIZ ELGUINDY and AFRODITE ELGUINDY Defendants
ADDENDUM TO JUDGMENT Turnbull J. Released: September 13, 2018
[1] I have been advised that approximately $450,000 of funds have been paid into court pursuant to the order of Goodman J. When funds are paid into court, they are paid to the Accountant of the Superior Court of Justice, 595 Bay Street, Suite 800, Toronto Ontario M5G 2M6. The manager responsible for all payments out of court can be reached by telephone at 1 416 314 2479.