Court File and Parties

COURT FILE NO.: 3199/19 DATE: 2020-06-04 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HARBOUREDGE COMMERCIAL FINANCE CORPORATION, Creditor AND: 2526982 ONTARIO INC. and JANNETT WONG also known as NGUYET NGA YANG also known as JANET NGA YANG, Debtor

BEFORE: Kurz J.

COUNSEL: Inga Andriessen for the creditor

HEARD: by teleconference

Endorsement

Introduction

[1] The creditor moves without notice for an order of substituted service of its notice of motion, seeking a contempt order against the debtor. The creditor says that the debtor is in contempt of the order of Gibson J. of January 23, 2020, requiring her to attend at an examination in aid of execution.

The Debtor’s History of Service Evasion

[2] The evidence shows that the debtor has a history of evading service of process in this proceeding. The creditor has been required to obtain orders of substituted service for each of the legal process documents in this proceeding that have required personal service: the statement of claim, and the notice of examination for its judgment debtor examination.

[3] The debtor owns the property located at 56 Martindale Road, Scarborough, Ontario, M1M 2C1, (“56 Martindale Road”). That is the location of a number of attendances by the creditor’s process server, seeking to serve the debtor with court documents. A driver’s licence search shows that the debtor registered her home address as 56 Martindale Road.

[4] On two occasions, August 3, 2019 and February 20, 2020, a woman was seen by a process server peering out of the window of the 56 Martindale Road property, but she refused to open the front door to allow service.

[5] On two occasions, July 31, 2019 and October 30, 2019, a white Mercedes vehicle has been observed by a process server to be parked in the driveway of 56 Martindale Road. That car is owned by a corporation, of which the debtor is a director. On one occasion, February 23, 2020, a gentleman described by the creditor’s process server as an “Asian Male”, answered the door to 56 Martindale Road. He advised the process server that the debtor had moved out and that he was unable to contact her. Yet, she continues to own the property.

[6] Further, the debtor previously corresponded with a representative of the creditor by email, using the email address, jannett1868@gmail.com.

[7] All of the legal documents cited above have been served on the debtor by mail at 56 Martindale Road and by email at jannett1868@gmail.com. None has been returned or marked “undelivered”.

Law Regarding Substituted Service in a Contempt Motion

[8] Under Rule 60.11(2) of the Rules of Civil Procedure (“RCP”), the notice of motion for a contempt motion “…shall be served personally on the person against whom a contempt motion is sought, and not by an alternative to personal service, unless the court orders otherwise.”

[9] While there are cases in which orders of substituted service of a notice of motion seeking a contempt order have been granted (see, for example, Nelson Barbados Group Ltd. v. Cox, 2010 ONSC 569), no case brought to my attention examines the exact test for such relief. In Nelson Barbados, for example, Shaughnessy J. ordered substituted service of a notice of motion seeking a contempt order after finding that the circumstances before him were exceptional. He found both that the defendant was attempting to evade service and that “…there are no other steps that can be taken to locate him…”

[10] Ms. Andriessen submits that the test for substituted service on a contempt motion should be the same as in any other court process. That test, under R. 16.04(1), applies broadly. That test is whether “…it appears to the court that it is impractical for any reason to effect prompt service of an originating process or other document required to be served personally or by an alternative to personal service under these rules …or, where necessary in the interest of justice [the court may] dispense with service.” [Emphasis added]

[11] The highlighted wording of R. 16.04(1) demonstrates the extent to which that subrule is of general application to all documents that require personal service under the RCP. There is no exception for notices of motion seeking a contempt order.

[12] However what is unique about contempt motions is their seriousness. Despite their availability in civil matters such as this, they are quasi-criminal in nature (see Carey v. Laiken, 2015 SCC 17, [2015] S.C.J. No. 17 at para. 42). As the Ontario Court of Appeal wrote in Chiang (Trustee of) v. Chiang, 2009 ONCA 3:

[11] In civil contempt, the court's emphasis is less about punishment and more about coercion -- attempting to obtain compliance with the court's order. Still, civil contempt bears the imprint of the criminal law. Civil contempt must be made out to the criminal standard of proof beyond a reasonable doubt. And, a person found in civil contempt of court may be committed to jail or face any other sanction available for a criminal offence, such as a fine or community service

[13] Thus, while the test for substituted of a contempt notice of motion may appear to be the same as that for an ordinary court process, the court must apply very close scrutiny to the request. Further, it may only grant such an order in the clearest cases, where it is a last resort and in the interests of justice. That requirement is in line with the comments of the Supreme Court of Canada in Carey v. Laiken at para. 36 that the contempt power should be exercised "cautiously and with great restraint" as "an enforcement power of last rather than first resort" (see also: Chong v. Donnelly, 2019 ONCA 799 at paras. 8-10).

Reasons that I Grant this Motion

[14] Here, there is a long and consistent pattern of service evasion, Ms. Wong’s home address is certain, and if the order that I make is followed, I believe that the contempt notice of motion will come to her attention.

Order

[15] Accordingly, I order that the debtor, Jannett Wong, may be served with the Creditor’s Motion Record for Contempt, together with a copy of this endorsement and any order issued by this court in accord with this endorsement (“the documents”), by: a. sending a copy of the documents by email to jannett1868@gmail.com; b. sending a copy of the documents by prepaid regular letter mail to the creditor’s attention at 56 Martindale Road, Scarborough, Ontario, M1M 2C1; and c. attaching an envelope, addressed to the creditor and containing the documents, to the front door of 56 Martindale Road, Scarborough, Ontario, M1M 2C1

[16] Such service to be effective seven days after the latest of the three modes of service set out in para. 15 above has been effected.

[17] The creditor’s contempt motion against the debtor may only be brought when the ordinary operations of the court resume.

[18] The creditor is entitled to costs, fixed at $3,500. I do not agree that the scale of costs of this motion is determined by the terms of the lease agreement between the parties. To the extent that they are determinative, that is the case until the time of judgment. Here, however the creditor is entitled to an enhanced scale of costs because of the breach of the Gibson J. order. However I find that even on that scale, $3,500 is fair, reasonable and proportionate in the circumstances.

[19] In the circumstances of the COVID-19 emergency, this endorsement is deemed to be an Order of the Court that is operative and enforceable from the time of their release without any need for a signed or entered, formal, typed Order. The parties may submit a formal Order for signing and entry once the court re-opens.

“ Marvin Kurz J. ” Electronic signature of Justice Marvin Kurz, Original will be placed in court file Dated: June 4, 2020