BRACEBRIDGE COURT FILE NO.: CV-06-154 DATE: 20200730 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Lise Gagne Plaintiff – and – Timothy Murray and Michael Murray Defendants

Counsel: Sabrina Lucenti, for the Plaintiff Carole Redmond, for the Defendants

HEARD: In Writing

REASONS FOR DECISION ON MOTION

CASULLO, J.

Overview

[1] The moving party seeks an Order amending a previous order to include that a new writ be issued nunc pro tunc, or that an alias writ be issued. Alternatively, the moving party seeks an Order granting leave to issue a new writ of seizure and sale.

[2] The responding party opposes the motion.

Procedural Background

[3] I have rendered three prior Endorsements on this matter (June 5, 2020, July 9, 2020, and July 17, 2020). Pursuant to my June 5, 2020 Endorsement, I advised that upon receipt of responding materials, I would determine whether:

i) The matter may be heard in writing; or ii) Brief oral argument is required; or iii) The matter falls beyond the scope of permissible hearings as set out in both the Notice and the May 19, 2020 Protocol.

[4] I have been put in receipt of Timothy Murray’s responding materials. Following a review of same, I am satisfied that this matter can be heard in writing.

Background

[5] Timothy Murray and Michael Murray were noted in default in respect of a negligence claim on July 10, 2006. On April 11, 2007, default judgment was granted to the plaintiff in the amount of $39,808.02.

[6] Between April 11, 2007 and May 2008, a writ of seizure and sale was issued, a Notice of Execution was filed with the Sherriff’s office, and Timothy Murray was served with a Notice of Enforcement. For reasons not provided, the sale of the seized property did not ensue.

[7] Michael Murray filed an assignment into bankruptcy, thereby staying the action as against him.

[8] The writ of seizure and sale expired on August 13, 2013. Plaintiff’s counsel, the moving party in the matter before me, determining the writ had expired in June 2014, brought the motion, seeking to either renew the Writ nunc pro tunc, or obtain leave to issue an alias writ. The Order, granted on July 21, 2014, read that the “writ is renewed as requested.” The filing office would not accept the new writ because it had expired. The Court Clerk provided instructions that the Order should be amended to read “writ to be refiled or file new writ.”

[9] An associate of the moving party with carriage of the file, failed to ensure that the Order was amended. This failure did not come to the attention of the moving party until March 2019. Thus, the writ has never been renewed, and no alias writ was ever issued. Almost seven years later, the moving party seeks to remedy these oversights.

Positions of the Parties

Moving Party

[10] The moving party seeks to amend the Order pursuant to r. 59.06(1) of the Rules of Civil Procedure, which holds:

An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended on a motion in the proceeding.

[11] In the alternative, the moving party seeks leave to issue a new writ of seizure and sale pursuant to r. 60.07(2) of the Rules of Civil Procedure:

If six years or more have elapsed since the date of the order, or if its enforcement is subject to a condition, a writ of seizure and sale shall not be issued unless leave of the court is first obtained.

[12] The plaintiff should not be held liable for the faults of her counsel, and it is in the interests of justice that the motion be granted. The plaintiff instructed counsel to file a writ of seizure and sale, and always intended to renew the writ and pursue collection of the Judgment. The Judgment is still in force, and remains unpaid.

[13] In considering whether to exercise the Court’s discretion to grant the relief sought, by granting the plaintiff’s motion, all parties will be restored to the position they were in prior to the writ expiring. Further, the responding party will suffer no prejudice if the relief sought is granted.

Responding Party

[14] The responding party submits that the moving party does not have the standing to bring this motion. The moving party is in reality LawPRO, and is not a creditor who is entitled to seek relief. The plaintiff herself is the only “party” and lawful creditor of the default judgment and of the writ, and therefore the only party allowed to enforce it.

[15] Further, the default judgment did not establish joint and several liability to support enforcing the total judgment against only Tim Murray.

[16] Finally, given the years of silence, Tim Murray assumed that the plaintiff had abandoned her claim, and was not intent on enforcing judgment. Over the years Tim Murray made significant changes to his financial and legal status, and he would suffer irreparable prejudice and harm should the relief granted be sought.

Analysis

[17] The doctrine of nunc pro tunc, or “now for then,” provides the court with the ability to, in essence, backdate an order to an earlier moment in time. In Hogarth v. Hogarth, [1945] O.W.N. 448 at p. 449, Kelly J. held:

There is inherent jurisdiction in the Court to make orders nunc pro tunc to validate proceedings which have been carried out and have been found ineffective by reason of some slip or oversight having been made in the conduct of such proceedings, and to ensure against some injustice resulting therefrom.

[18] In Green v. Canadian Imperial Bank of Commerce, 2015 SCC 60, at para. 90, the Supreme Court of Canada set out a list of six non-exhaustive factors a court is to consider when determining whether to exercise its inherent jurisdiction to grant the order, including assessing whether:

1. the opposing party would be prejudiced by the order;
2. the order would have been granted had it been sought at the appropriate time, such that the timing of the order is merely an irregularity;
3. the irregularity was intentional;
4. the order will effectively achieve the relief sought or cure the irregularity;
5. the delay was caused by an act of the court; and
6. the order would facilitate access to justice.

[19] The moving party relies on two decisions in which courts granted orders nunc pro tunc. The first is Kerr v. Danier Leather Inc., 2005 CarswellOnt 2704, 76 O.R. (3d) 354, in which an order was amended three years after issuance. Cumming J. held that the delay in bringing the motion was not a prohibiting factor, given there was no prejudice to the defendants (para. 28). The second is Lam v. Summer Estate, 2008 BCCA 50, 37 E.T.R. (3d) 174 where the relief sought was granted, again on the basis that there was an absence of prejudice to the opposing party.

[20] The test to grant a nunc pro tunc order is one of fairness. As Gomery J. said in Messari et al. v. Alberelli et al., 2017 ONSC 5304, at para. 15, “[i]n the end, the court is assessing the overall fairness of granting a backdated order by considering the diligence of the party seeking it, and potential prejudice to the opposing party if the order to granted.”

[21] In respect of the alternate relief sought by the moving party – the issuance of a new or alias writ – courts have held that the threshold to obtain one is low, provided the judgment was obtained within the limitation period, the judgment remains unsatisfied, and a writ may properly be enforced against the judgment debtor: Schmegilsky v. Slobodzian, [1964] 1 O.R. 663 (Ont. Supreme Crt.).

[22] However, prejudice to the responding party should also be considered. As Master Dash held in Adelaide Capital Corp. v. 412259 Ontario Ltd., 2006 CarswellOnt 6365, 35 C.P.C. (6th) 389 (para. 10):

Therefore, when a plaintiff seeks leave under rule 60.08(2) to issue a notice of garnishment more than six years after the date of judgment, he must adduce evidence explaining the delay such the court may conclude that the plaintiff has not waived its rights under the judgment or otherwise acquiesced in non-payment of the judgment. The defendant may raise other grounds to convince the court that it would be inequitable to enforce the claim. For example the defendant could demonstrate that he has relied to his detriment or changed his financial position in reliance on reasonably perceived acquiescence resulting from the delay. Of course the onus would be on the defendant to adduce evidence of such reliance and detriment.

[23] While Adelaide concerned leave to issue an expired notice of garnishment under r. 60.08(2), the language is almost identical to s. 60.07(2). Referencing Royal Bank v. Correia, 2006 CarswellOnt 4823, the court in Adelaide ruled that the test for the exercise of the court’s discretion is the same under rules 60.07(2) and 60.08(2) (at para. 10).

[24] Thus, as can be gleaned from the decisions referenced above, prejudice to the respondent is a consideration under both r. 59.06(1) and r. 60.07(2).

[25] Timothy Murray submits he would suffer prejudice under either scenario, and has provided affidavit evidence in support of his position. To wit, in light of the fact that no steps were taken to enforce the judgment beyond the Notice of Enforcement he was served with in December 2007, Timothy Murry acted under the assumption that the plaintiff had abandoned the claim, or acquiesced not to enforce the Writ.

[26] For example, at the time the original writ was issued, Timothy Murray was a single man who owned one property. In 2011 he married, rendering that property the matrimonial home. Timothy Murray also made the difficult decision to stop working and instead receive ODSP benefits in light of a chronic illness. He made that decision based on his debt-to-asset ratio, to ensure he and his family would be financially secure on the income received from ODSP.

[27] Finally, acting under the belief that he was not a judgment debtor, and that he had no executions or unpaid creditors against him, he agreed to go on title to his father’s hunt camp property as a joint owner. He believes that the lawyers executing the transaction completed an execution search as a preliminary step to the transfer. If any judgments or Writs registered against him had been uncovered, he does not believe either his father or his family would have agreed that he go on title.

[28] Clearly, much of the failure to maintain the writ in good standing does not lie at the feet of the plaintiff. I say this intending no disrespect to the moving party, whom I recall as a conscientious lawyer from my days of practice. And I have not forgotten the daily exigencies of a law practice. However, how often should a court be called upon to fix counsel’s oversight? The Writ had already expired in 2013. In 2014, the court granted leave to issue an alias writ. When the language of the order was not acceptable to the court clerk, instructions for a remedy were provided. These instructions were not followed, and the new writ was never issued.

[29] We are now 13 years post-judgment. In the intervening years, Timothy Murray came to believe the plaintiff was not pursuing the judgment. Reliance on this belief caused him to detrimentally change his position, such that the relief sought by the moving party would cause great prejudice if granted. Accordingly, the moving party’s motion is dismissed.

[30] In light of the foregoing, I do not propose to address the two alternate arguments proffered by the responding party.

Costs

[31] The responding party is entitled to his costs. If counsel cannot agree on costs, I will receive written submissions on a seven-day turnaround, commencing with the responding party, followed by responding submissions by the moving party, and concluding with reply submissions from the responding party, if any, commencing 14 days from the date of release of this Endorsement. Cost submissions shall be no more than three pages in length, exclusive of bills of costs, which both parties are expected to provide, or any offers to settle. All costs submissions shall be delivered via email through my judicial assistant at jennifer.beattie@ontario.ca.

Madam Justice A.A.Casullo Released: July 30, 2020