Court File and Parties
COURT FILE NO.: CV-20-82450 DATE: 2021/11/24
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: INDIAN AGRICULTURAL PROGRAM OF ONTARIO, Plaintiff -and- GLEN HILL and MICHAEL HILL, Defendants
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Jessica Byles, for the Plaintiff No one appearing for the Defendants
HEARD: November 9, 2021
INTERIM ENDORSEMENT
Introduction
[1] The Indian Agricultural Program of Ontario (“the Program”) brings this motion for default judgment. The Program alleges that Glen Hill and Michael Hill (“the Defendants”) are collectively and individually in breach of a series of loan and general security agreements (“the Agreements”). The Agreements relate to monetary loans and the purchase of farm equipment on credit. On the motion, the Program seeks relief that would permit it to re-possess that equipment.
[2] The Program’s evidence is that it has a general security interest over 11 specific pieces of equipment (“the Equipment”). The Equipment is described in detail at paragraph (l)(i)-(xi) of the notice of motion dated June 18, 2021. The Program also seeks relief related to items more generally described at paragraph (l)(xii) of the notice of motion as, “[i]nventory, business assets, equipment, livestock, proceeds, chattel paper, documents of title, securities, title and interest to any trademarks, trade names, contract right and leasehold interest, books, records, etc.”
[3] The Defendants’ collective indebtedness to the Program, based solely on monetary loans, is alleged to be approximately $500,000. The evidence does not include an estimated present value for the Equipment. I note, however, that the Equipment includes two trucks, a tractor, a seed wagon, and a combine. Some of the pieces of equipment are relatively new (2011 and 2013 model years) while others are older (one item dates back to the 1976 model year).
[4] The Program’s evidence is that it has been thwarted to date with respect to any efforts to (a) ascertain that the Defendants are still in possession of the Equipment, and (b) determine where the Equipment is currently located. With the decision on the motion for default judgment under reserve, the Program is concerned that the Defendants do not take any steps to dispose of, alienate, encumber, sell or assign ownership of the Equipment. The Program requests an interim order prohibiting the Defendants from taking any one or more of those steps.
Discussion
[5] The Defendants did not defend the action, were noted in default, were served with the motion materials, and did not attend on the return of the motion. The most recent communication by or on behalf of the Defendants with the Program has been through Hunsen Consulting. Alex Hunsen is described as the “authorized agent” of the Defendants. Previously, the Defendants communicated with the Program through an agent affiliated with the organization, “Nation to Nation”.
[6] As of the date of the return of the motion, the Program had not been able to ascertain the location of the Equipment. The Program’s counsel informed the court that the Program believes that the Equipment – or at least what remains of it at this time – is located on the farm property on which the Defendants operated and may continue to operate their farm (“the Farm”). The Farm is located on the Six Nations Indian Reserve.
[7] The evidence from the Program includes a description of unsuccessful efforts to date to ascertain the location of the Equipment so as to repossess it and difficulties encountered when attempting to repossess other equipment from other borrowers/creditors whose farm operations were also located on the Six Nations Indian Reserve.
[8] The Defendants have not personally responded in any meaningful way to the Program’s efforts to enforce the Agreements or to the litigation. To the contrary, the Defendants appear to have taken deliberate steps to thwart the Program’s efforts to obtain payments due under the Agreements. For example, in November 2018, the Defendants cancelled the authorization previously given to one of their customers for the customer to send funds to the Program (instead of making payments to the Defendants).
[9] Based on the affidavits of Jamie Hill sworn in July 2020 and October 2021, I am satisfied that the Program has a reasonable basis for concern that without the benefit of the interim relief requested, and if successful on the motion, it may not be in a position to enforce a judgment and/or repossess the Equipment.
Interim Order Made
[10] For the reasons set out above, I make the following order:
The Defendants shall not dispose of, alienate, encumber, sell or assign ownership of the items listed at page 4, paragraph (l)(i)-(xi) of the notice of motion dated June 18, 2021.
The prohibition in paragraph 1, above, shall remain in effect until 45 days following the date on which the court’s ruling on the motion for default judgment is released, unless the court orders otherwise.
[11] With respect to paragraph 2, above, it is the court’s intention to address this interim order as part of its ruling on the motion for default judgment.
Madam Justice S. Corthorn
Date: November 24, 2021
COURT FILE NO.: CV-20-82450 DATE: 2021/11/24
ONTARIO SUPERIOR COURT OF JUSTICE
RE: INDIAN AGRICULTURAL PROGRAM OF ONTARIO, Plaintiff -and- GLEN HILL and MICHAEL HILL, Defendants
BEFORE: Madam Justice Sylvia Corthorn
COUNSEL: Jessica Byles, for the Plaintiff No one appearing for the Defendants
INTERIM ENDORSEMENT
Madam Justice Sylvia Corthorn
Released: November 24, 2021