Court File and Parties
COURT FILE NO.: CV-16366/98
DATE: 2021-03-25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: The Bingo Connection, Super Jackpot Fund Association, Plaintiff
AND:
April Ryckman, Defendant
BEFORE: Kurz J.
COUNSEL: M. Roefe, for the Plaintiff/Judgment Creditor
No appearance for the Defendant/Judgment Debtor
HEARD: March 24, 2021
ENDORSEMENT
Introduction
[1] There are two motions before me, one on notice and the second not on notice. I heard arguments from Mr. Roefe in regard to both on March 24, 2021. Mr. Roefe completed his arguments on the motion served upon the Debtor on March 24, 2021.
[2] During his argument of the motion brought without notice, I raised a question regarding post-judgment interest. I adjourned both motions to today to allow Mr. Roefe to investigate the issue, which is discussed below.
Background
[3] The Creditor is a charitable bingo organization, The Debtor is a former employee of the Creditor. The Ontario Court of Justice convicted her for theft from the Creditor and made a restitution order for the repayment of $135,062.39.
[4] The Creditor obtained an order from Dunn J. on January 19, 2010, allowing it to issue a writ of seizure and sale and a notice of garnishment against the Debtor.
[5] Following that order, the Creditor garnished the Debtor’s income for a time while she worked for Halton Honda. But she has left that job. The Creditor is unaware of any current place of employment. The Creditor states that the current debt is approximately $225,000 with interest accruing at the rate of $18.50 per day. As I set out below, I raised questions about both that calculation and the jurisdiction of this court to include an interest component in any judgment or writ of seizure and sale of this court.
Service and Notice
[6] On August 22, 2020, Gibson J. granted the Creditor leave to serve its notice of examination on the Debtor by social media. That was because the Creditor was unable to locate the Debtor. On December 4, 2020, Mr. Roefe’s assistant served the Debtor with a notice of examination for a judgment debtor examination in the manner prescribed by Gibson J. That service was effected by Facebook and Linked In. The service occurred in this manner after the debtor blocked Mr. Roefe’s account from contacting her.
[7] The debtor failed to attend the judgment debtor examination on January 22, 2021 nor to respond to Mr. Roefe’s correspondence of January 21, 2021 reminding her of that examination.
[8] The Debtor was served with the motion materials for this motion on her Facebook page, again by Mr. Roefe’s assistant. After that service, the Debtor blocked the assistant’s account, so she was not able to send the debtor an email with the Zoom contact information today. In doing so, the debtor deliberately prevented Mr. Roefe from providing her with the Zoom details for this attendance. It is in line with her previous blocking of Mr. Roefe’s account. I note that the debtor was aware of this motion date and could have obtained the Zoom details herself by contacting the court. The court was not able to provide those details directly to the Debtor because she filed no materials in response to this motion. Thus it had no contact information for her.
[9] The Debtor’s deliberate obstruction of any contact by Mr. Roefe’s office should not entitle her to avoid the hearing of the Creditor’s motion to compel her reattendance. Accordingly I am proceeding with it.
[10] I approve the Creditor’s method of service of its motion record for a reattendance at a judgment debtor examination, through the Debtor’s Facebook page.
[11] On the morning of March 24, 2021, I asked Mr. Roefe to attempt to contact the Debtor by telephone as he has finally located the Debtor’s residence, in Trout Creek, Ontario, in the Parry Sound area. I asked him to see whether he could locate the phone number of the Debtor in light of his awareness of the address. He did so and screen shared the results with me, showing no phone number listed on the Canada 411 site for the debtor or her address. He will file an affidavit attesting to the search.
[12] I vary the order of Gibson J. of August 27, 2020, such that Mr. Roefe may serve the debtor with any further court materials by both registered and ordinary mail at 411 McCarthy Street North, PO Box 258, Trout Creek, Ontario, P0H 2L0. Service will remain effective, even if the Debtor fails to pick up any document sent to her by registered mail.
Motion for Reattendance
[13] The Debtor failed to attend at the last judgment debtor examination arrange by the Creditor, although duly served. It is appropriate to order the Debtor to reattend at an examination in aid of execution on a date and time chosen by Mr. Roefe. She was duly served with the prior notice of examination and failed to attend.
[14] The judgment debtor examination shall take place by Zoom. Because it will be virtual, it may take place at the examination site of Mr. Roefe’s choice, whether or not it is in the Parry Sound area.
[15] I order that:
The Debtor re-attend at her sole cost and expense, at the Examination in Aid of Execution by Zoom video conference at such time and date as the Creditor may determine as set out in the Notice of Examination served in compliance with the terms of this Order, and to fully and truthfully answer the proper questions asked of her at the Examination in Aid of Execution, subject to such further and other Order as this court may make.
The Debtor shall deliver at her sole cost to the lawyer for the Creditor, all of the documents identified in the Notice of Examination by email at marlon.roefe@roefe-lawyer.ca or by courier or registered mail for delivery at 389 Pearl Street, Lower Level, Burlington, Ontario, L7R 2M8, no later than 30 days before the date of the Examination in aid of Execution, and where such documentation is not available, the Debtor shall deliver her written statement setting out what documents sought are not available for production by her, and the steps taken, if any to secure such unavailable documents, and the reasons why such documents are not being produced, with such written statement to be complete and truthful as if sworn to be true.
The Notice of Examination in Aid of Execution shall provide no less than forty-five days’ notice to the Debtor with a hearing by zoom video conference or at the office of Cindy Jones Verbatim Reporting Services Inc. in the City of Burlington, as the Creditor may determine.
Motion without Notice to Issue a Writ of Seizure and Sale
[16] The Creditor also moves for leave to issue a writ of seizure and sale directed to the sheriff’s enforcement office in Parry Sound. That motion is without notice. Under r. 60.07(2), leave is required if a creditor seeks to issue a writ of seizure and sale more than six or more years since the date of the original order.
[17] First, I allow the Creditor to proceed with this motion without notice. The Debtor has a history of fraudulent behaviour. There is a risk here that she may take steps to further encumber her present property,
[18] Under s. 737(1) of the Criminal Code, a court may issue a restitution order. Under s. 741(1) when an offender fails to pay all of the restitution order, as is the case here, the person entitled to the payment may, by filing the order, enter it as a judgment of this court for the amount of the restitution order and enforce that judgment against the offender as if it were a judgment rendered in civil proceedings.
[19] While the order of Dunn J. of January 19, 2010, allowing the Creditor to issue a writ of seizure and sale and a notice of garnishment against the Debtor does not make reference to entering the restitution order as a judgment of this court, that term is implicit in his order. The original motion record that led to the order of Dunn J. states that the restitution order was “filed” with the court. I am not clear what that term means other than the fact that Dunn J. had the restitution order before him and implicitly made the restitution order an order of this court.. If I am wrong in that regard, I order now that the restitution order be entered as a judgment of this court, nunc pro tunc.
Interest Under the Writ of Seizure and Sale
[20] The last issue is whether the Creditor is entitled to claim interest under its writ of seizure and sale. That question was answered by the Court of Appeal for Ontario in R. v. Trac, 2013 ONCA 246, 2013 O.J. No. 1788 (Ont. C.A.) at para. 48 and footnote 2. There, the court adopted the decision of Searle D.J. of the Small Claims Court on the very issue in Brydon v. Berrigan, 2003 CarswellOnt 65, as follows:
10 It is to be noted that the current section 741 of the Criminal Code permits the amount awarded in the restitution order to be entered as a judgment for enforcement "and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings." Although the Kimpe and Devgan cases give pause it is the opinion of this Court that once a restitution order is validly entered in a civil court it is to be treated exactly as a judgment of that court and consequently attracts post-judgment interest in accordance with Section 129 of the Courts of Justice Act. It should be noted that unlike prejudgment interest, post-judgment interest attaches by operation of law and does not depend on an order of the court.
Conclusion
[21] Accordingly, the Creditor may issue its writ of seizure and sale, requesting post-judgment interest as set out in the draft writ.
Costs
[22] Mr. Roefe seeks costs of the two motions, fixed at $10,788, on an elevated costs basis. He does so because of both the facts of this proceeding and the manner in which the Debtor attempted to avoid service. The facts of the case arise from the theft and or fraud by the Debtor. The costs in these motions have had to be incurred because of the attempt to collect the money owing from that conduct and the attempts to avoid payment and subsequent service of court materials by the Debtor. During the course of argument I raised some legal issues with counsel, particularly regarding the post-judgment interest and service of the motion to compel re-attendance, which complicated the issues in the ex parte motion.
[23] The Debtor’s conduct has made the expenditure of significant costs necessary. I find that costs fixed at $10,000 are fair reasonable and proportionate in the circumstances.
“Marvin Kurz J.”
Electronic signature of Justice Marvin Kurz,
Original will be placed in court file
Date: March 25, 2021