COURT FILE NO.: CV-19 629644
DATE: 20200323
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
NICOLE MORRIS, Judgment Creditor
– and –
SIGE ARSENE ONCA and ONCA CAPITAL INC., Judgment Debtors
BEFORE: F.L. Myers J.
COUNSEL: Daniel Ciarabellini, for the Applicant
Sige Arsene Onca, in person
READ: March 23, 2020
endorsement
1I convened a case conference in response to the judgment creditor’s request to schedule an urgent motion.
2The judgment creditor moves for urgent relief to prevent the judgment debtors from continuing to ignore court orders and to repay funds that she says they obtained from her by fraud. The judgment creditor says that she is at risk of defaulting on a real estate transaction with an impending closing and urgently needs her funds. She says that she has evidence that the judgment debtors are actively moving assets abroad to avoid enforcement efforts.
3During the case conference, the judgment creditor advised that she already had a motion booked in Civil Practice Court for April 27, 2020. She is asking for additional relief however due to allegations that the judgment debtors have compounded their breaches of court orders by attending at an examination in aid of execution last week without producing documents as ordered and refusing to answer relevant questions asked during the examination.
4Mr. Onca participated in the case conference in person. He forthrightly conceded that he owes the funds adjudged due to the judgment creditor. He says that he is trying his best to cooperate to produce documents or pay the judgment creditor but circumstances have prevented him from doing the things he has been ordered to do.
5Mr. Onca advises that the applicant’s funds have been invested through a brokerage account in the Seychelles Islands. He advises that the judgment creditor made some effort to obtain access to the funds in the account and this led the broker to freeze the account some time ago. He says he intends to pay the judgment debt with funds from accounts in his mother’s name in France. But the global pandemic has prevented him from being able to have his mother attend to obtain documents assuming that she would be willing to do so. He also says that there are two properties here in the name of his mother although he is less clear on how that came to be and why he has been unable to produce documents concerning those properties.
6Mr. Onca advised that at his examination last week, he told counsel for the judgment creditor that he has access to one withdrawal per month from a foreign account so he has proposed to pay the $90,000 or $91,000 that is currently owing to the judgment creditor in two tranches drawn April 1 and May 1, 2020 respectively. The first payment will be for $49,500 and the second will be for the remainder outstanding on the date paid. Mr. Onca thought that this was a settlement agreement made and does not understand why the judgment creditor is continuing her enforcement efforts as she agreed to stop the enforcement efforts as soon as she is paid.
7I took some time to explain the enforcement process to Mr. Onca including the serious risk facing him in contempt proceedings. The principal purpose of contempt proceedings in civil lawsuits is to compel a party to comply with court orders. He has had and will have opportunities to comply with the outstanding court orders by disclosing the documents ordered produced by the Master before the motion is heard or even at the hearing. But Mr. Onca should be under no misapprehension about how serious this matter is. There is a real risk of a fine or a jail term if a court determines that he has had the ability to comply with court order(s) and has failed to do so. One might expect, for example, that Mr. Onca’s mother and broker would likely respond well to requests and/or instructions to provide copies of documents if asked urgently enough.
8Counsel for the judgment creditor says that while his client is willing to stop enforcement efforts once she is paid in full, there is no agreement to cease enforcement until then. He has not brought a new motion but simply asked the court to proceed with the hearing of the motion scheduled in Civil Practice Court.
9Procedurally, Mr. Onca could choose to bring a motion to enforce the settlement that he says was reached last week. It seems to me however, that the terms that he asserts can be readily enforced without requiring him to bring an additional motion. Rather, the payment terms that Mr. Onca offered can just be adopted as part of the court’s schedule. Counsel for the judgment creditor agreed to this process.
10Therefore, I schedule the hearing of the judgment creditor’s adjourned motion for contempt and other relief as follows:
i. The judgment creditor shall deliver an amended notice of motion and all evidence on which she relies by March 30, 2020;
ii. The motion will be heard by videoconference to allow live evidence to be heard. If Mr. Onca pays $49,500 to the judgment creditor in certified or wired funds received by Mr. Ciarabellini on or before April 6, 2020, then the motion will be scheduled for April 27, 2020. If the full amount remaining outstanding is paid and clears the judgment creditor’s bank account before April 27, 2020, then the motion may be cancelled;
iii. If Mr. Onca does not pay the full amount adjudged due on time, then the motion will proceed on April 27, 2020, Mr. Onca may deliver written evidence in response by April 20, 2020. Mr Onca is not required to deliver evidence in writing. Mr. Onca is not required to adduce any evidence if he does not wish to do so. He has the right to remain silent if he wishes. But, he also has the right to call evidence in his defence at the hearing of the motion if he wishes to do so. If Mr. Onca wishes to present evidence orally at the hearing of the motion, then by April 20, 2020, he shall send to Mr. Ciarabellini a copy of all documents that he intends to put into evidence at the hearing. He is also to advise Mr. Ciarabellini in writing by April 20, 2020 of the names of all witnesses whom he intends to call at the hearing and whether he wishes to cross-examine the judgment creditor during the hearing;
iv. If Mr. Ciarabellini advises that the payment of $49,500 has not been received by him by April 10, 2020 as set out above, then the motion will be heard on April 17, 2020. In that case, the date for Mr. Onca to provide a copy of his documents, the names of his witnesses whom he intends to call, and to advise if he wishes to cross-examine the judgment creditor shall be April 13, 2020 (as Mr. Onca will know from April 1, 2020 that he has not made the draw that he says he intends to make that day). The parties may deliver written legal argument or factums on April 15, 2020 and the hearing will be held on April 17, 2020; and
v. Mr. Ciarabellini is requested and authorized under Rule 1.09 to advise the court whether the April 6, 2020 payment is made.
11The Motions Coordinator shall advise the parties of the details for participation in the videoconference hearing in due course. The presiding judge will be appointed at that time.
12Service by email on Mr. Onca was effective in notifying him of this case conference. During the case conference I advised him clearly and more than once of the seriousness and risks involved in the contempt hearing in the event that settlement falls through and he does not comply with outstanding court orders by the time of the hearing. Therefore, service of the motion materials by email as provided for in my prior endorsement is sufficient and I dispense with any need for personal service under Rule 60.11.
13This endorsement is effective when made. No formal order is required. All procedural rulings set out in my prior endorsement continue to apply.
F.L. Myers J.
Date: March 23, 2020