COURT FILE NO.: SC-20-382
DATE: 2020 04 27
SUPERIOR COURT OF JUSTICE – ONTARIO
(BRAMPTON SMALL CLAIMS COURT)
RE: CHHOKAR LAW OFFICE
Plaintiff
– and –
MERLENE NELSON aka MERLENE RICHARDS
Defendant
BEFORE: EMERY J.
COUNSEL: M. Chhokar, for the Applicant
Merlene Nelson, Self-Represented
HEARD: Friday April 24, 2020 by telephone conference
ENDoRSEMENT
Emery J.
NATURE OF MOTION:
[1] The plaintiff, Chhokar law Office, brings a motion for the court to order that Mr. Butler hold back $7,000 from the proceeds of sale when he closes Ms. Nelson’s sale of her house as her real estate solicitor on April 27, 2020. Mr. Butler would be ordered to keep those funds in trust until further order of the court, or alternatively to pay that amount into court to the credit of this action.
[2] The motion is brought under SCC Rule 15.01 that applies to all motions. The Chhokar Law Office also relies on section 11(2) of the Courts of Justice Act that generally preserves all jurisdiction power and authority in the Superior Court of Justice historically exercised by the courts of common law and equity in Ontario and England.
[3] The motion essentially asks for equitable relief to ensure that there is money available to execute any judgment obtained at trial.
DECISION:
[4] Ms. Chhokar at one time represented Ms. Nelson as her lawyer in a family law case. The amount at issue is composed of $5,618 the Chhokar Law Office claims is the outstanding balance that Ms. Nelson owes on account for legal fees, prejudgment interest, and certain amounts the plaintiff may claim for the costs of bringing the Claim and this motion. Ms. Chhokar specifically noted disbursements of $95 for the filing fee for the Claim, $107 for the process server to serve the claim, and $120 to file the motion.
[5] Ms. Nelson has filed responding evidence that describes her complaints with Ms. Chhokar’s professional services. That evidence may go to her defence at trial but is not relevant on the motion. She also states in her affidavit that she has made many payments to the Chhokar Law Office without receiving receipts or a proper accounting. Overall, that could also be evidence for trial. However, Ms. Nelson raises the issue that she has never received an invoice for the amount claimed, notably the originating invoice related to the reminder statement emailed by the Chhokar Law Office on January 6, 2020. That evidence is relevant to this motion.
Jurisdiction
[6] I was provided no statutory authority by the Chhokar Law Office that expressly gives me the power to make the order requested. Instead, I was referred to the decision of my colleague, Leiper J. in Ali v. Tariq, 2020 ONSC 1740.
[7] Chhokar Law Office cites Ali v. Tariq as authority for the relief requested because it involved an imminent house sale, and the court ordered that sufficient funds be held back in trust to satisfy an ultimate judgment. Ms. Chhokar argued that the case applies because of its similar facts to the motion I am hearing.
[8] I have the same jurisdiction that Leiper J. exercised in Ali v. Tariq. Superior Court judges are hearing urgent matters arising in Small Claims Court matters during the suspension of operations in the Small Claims Court across Ontario due to the COVID-19 crisis. I heard this motion as I am de facto a judge of the Small Claims Court under section 22(3) of the Courts of Justice Act. However, acting as a judge of the Small Claims Court, I am constrained by the statutory jurisdiction of the Small Claims Court as that court is created and governed by statute. In this capacity, I am not exercising the jurisdiction, power and authority derived through section 11(2) of the Courts of Justice Act.
[9] In the absence of any statutory authority to make the order requested, does the decision in Ali v. Tariq assist me to find jurisdiction? I am afraid it does not. That case involved a default judgment the plaintiff had obtained against the defendant, and a writ of seizure and sale that had been filed having the effect of binding the defendant’s property that had been sold. Leiper J. lifted the writ to allow the transfer for the property, leaving the motion to set aside the default judgment for the Small Claims Court to hear on a full evidentiary record when the court resumes operations.
[10] The court in Ali v. Tariq found jurisdiction to order that funds be held back from the house sale until further order under Small Claims Rule 11.06. That rule applies to a motion to set aside a default judgment. It also may apply to lift a writ, on terms, because it gives the court power to set aside “any step that has been taken to enforce the judgment, on such terms as are just….”
[11] It was the writ of seizure and sale as a step taken to enforce the default judgment that gave the court in Ali v. Tariq the jurisdiction to make the order it did under Small Claims Court Rule 11.06. The motion before me does not have the facts necessary for Small Claims Rule 11.06 to apply.
Evidence on the merits
[12] Even if I am wrong and I do have jurisdiction to make the order requested, I would not. Chhokar Law Office is actually asking for an order allowing execution before judgment. Under Ontario law, execution before judgment is not available, except under exceptional circumstances. Two of those circumstances are where fraud can be shown, or where the moving party has asked for and met the evidentiary test for a Mareva injunction.
[13] The moving party has not alleged fraud against Ms. Nelson, and no more need be said about it. That would leave a consideration whether Chhokar Law Office is seeking relief that amounts to a Mareva order.
[14] The motion does not ask for a Mareva order, or any kind of injunctive relief. However, if that were the nature of relief sought, the motion would fail on the threshold issue of whether a strong prima facie case has been shown. I say this primarily for two reasons.
[15] First, the initial affidavit of the plaintiff’s law clerk, Charlene Hare, states only that it is believed Ms. Nelson will have insufficient funds to satisfy a judgment if the amount was not held back. The affidavit does not include evidence that Ms. Nelson actually plans to move property or funds out of the province and beyond reach of the plaintiff. Ms. Nelson’s own affidavit in response speaks to the fact she has a disability and receives limited income because of it. There is no evidence from either source that she will move or unnecessarily dissipate the proceeds she receives from the sale of her property.
[16] Second, there must be persuasive evidence of a claim or debt at issue for the court to find an interest worthy of preserving. I have already alluded to an email dated January 6, 2020 that was attached as Exhibit “E” to Ms. Hare’s first affidavit. There was no invoice attached to any affidavit for this amount to show that Ms. Nelson had been billed for services having a value of $5,618 to remain outstanding.
[17] Chhokar Law Office had an opportunity to rectify this proof after receiving Ms. Nelson’s affidavit in which she described the absence of billing and accounting for services rendered. Ms. Hare’s second affidavit dated April 18, 2020 was filed in reply. Although Ms. Hare spoke in that affidavit of an invoice at paragraph 4 and checking a trust ledger at paragraph 10, no ledger, record or further invoice was attached as an exhibit to provide prima facie evidence of the alleged debt.
[18] As the Chhokar Law Office has not met the threshold of the test for a Mareva kind of order, it is unnecessary to inquire further into whether the plaintiff shall suffer irreparable harm if the relief was denied, or the balance of convenience to either party.
[19] The motion is dismissed.
COSTS:
[20] When asked, Ms. Nelson indicated that she would not seek any costs for the motion. Therefore, each party shall bear their own costs.
“original signed on file”
Emery J.
Released: April 27, 2020
COURT FILE NO.: SC-20-382
DATE: 2020 04 27
ONTARIO
SUPERIOR COURT OF JUSTICE
(BRAMPTON SMALL CLAIMS COURT)
B E T W E E N:
CHHOKAR LAW OFFICE
Plaintiff
– and –
MERLENE NELSON aka MERLENE RICHARDS
Defendant
ENDORSEMENT
EMERY J.
Released: April 27, 2020