STRATEGIC ADVOCACY IN ENFORCEMENT AND RECOVERY PROCEEDINGS – TORONTO ENFORCEMENT LAWYERS
Toronto Canada Debt Collection Lawyers
Lawyers to Collect U.S. Account Receivable in Ontario Canada
Domesticate US Judgment in Ontario Canada
Debt Collection and Enforcing Ontario Judgments and Foreign Judgments in Ontario
Ontario Litigation for Debts to Unpaid Sellers Located in Canada and U.S.
Collecting Accounts Receivables in Ontario for International Sale of Goods
Our lawyers can act in both large and complex debt collection matters to enforce creditor’s rights, whether the debt relates to:
- unpaid sale of goods and international sales of goods
- accounts receivables
- enforcement of payment of a promissory note or other contractual debt
- enforcement of the return of valuable assets, loaned or leased
- multi-jurisdictional, coordinated debt collection and enforcement of creditor’s rights
- recovery of offshore assets (in coordination with lawyers in offshore jurisdictions)
Gilbertson Davis LLP has lawyers experienced in determining whether or not a debtor has assets, the location of assets, whether they have been fraudulently conveyed or hidden, or dealt with by the debtor contrary to the statutory provisions of the Assignments and Preferences Act, R.S.O. 1990, c. A.33 and/or Fraudulent Conveyances Act, R.S.O. 1990, c. F.29, and providing an assessment of viability of recovery of the debt.
The required action may include urgent equitable remedies to freeze assets and obtain disclosure of documents and information concerning the debtor’s assets. We commence legal proceedings for the debt, sometimes seeking to set aside fraudulent conveyance, assignment or preference. An early assessment of the merits of such urgent remedies and/or a motion for summary judgment shortly after commencing an action is often required.
Our lawyers seek cost efficient debt recovery before and after judgment is obtained.
Our lawyers can act in large Ontario judgment debt and arbitration award collection matters to enforce judgment creditor’s remedies or to defend the judgment debtor’s rights. These enforcement procedures include: Examination in Aid of Execution, Garnishment, Seizure and Sale, Sequestration, Writ of Possession, Freezing Assets After Judgment and Setting Aside Fraudulent Conveyances. See our webpage on Enforcement of Ontario Judgments in Ontario.
International Experience | Local Counsel
Some of our lawyers have been admitted and practised law in foreign jurisdictions (including England, Bermuda and New York), have both foreign and local legal education, including in the U.S. and U.K. and a number of our lawyers and law clerks speak languages including French, Japanese, Portuguese, Italian, Russian and Cantonese.We are often consulted by those located in the United States, and in the past have been consulted by or retained in litigation by those (or matters located) in Alaska, California, Washington, Nebraska, Illinois, Missouri, Ohio, New York, New Jersey, Rhode Island, Massachusetts, North Carolina, Tennessee, Georgia, Louisiana, Florida and Texas. Internationally, we have also been involved in litigation or arbitration with clients (or matters) located in the Netherlands, Norway, Sweden, England, Denmark, Italy, Switzerland, Germany, Greece, Cyprus, Malta, Monaco, Guyana, Liberia, South Africa, Angola, The Bahamas, Bermuda, British Virgin Islands,Dominican Republic, Dubai, United Arab Emirates, Iran, Kuwait, India, Bangladesh, South Korea, Hong Kong, PRC and Australia.
These include seeking pre-judgment and pre-action remedies such as:
- Injunctive relief concerning assets of an intended defendant in the possession of a third party, such as a bank (Mareva or freezing order)
- Order for disclosure by third party about assets and location of assets of an intended defendant (Norwich order)
- Obtaining a certificate of pending litigation to be registered on land to avoid its transfer pending determination of a dispute about the land by the courts
And seeking post-judgment remedies such as:
- Post-judgment Mareva injunction / post-judgment freezing order to freeze the assets of the judgment debtor in the possession of a third party (e.g. bank)
- Post-judgment Norwich order to obtain disclosure of documents and information from a third party about the judgment debtor and the judgment debtor’s assets
These are in addition to examination in aid of execution (formerly called a judgment debtor examination), garnishment proceedings and seizure and sale of land.
Statutory Remedies – Where Fraud, Preferences or Absconding Debtor
Our lawyers will consider whether the circumstances of your case fall within the following Ontario statutory provisions:
Absconding Debtors Act, R.S.O. 1990, c. A.2
Under this Act the property of absconding debtor may be seized and taken by an order of attachment for the satisfaction of the person’s debts.
Assignments and Preferences Act, R.S.O. 1990, c. A.33
Provisions of this Act include statutory authority:
- to void, as against the creditors of the person a consent judgment given by a person to those creditors, being at the time in insolvent circumstances or unable to pay his, her or its debts in full or knowing himself, herself or itself to be on the eve of insolvency, voluntarily or by collusion with a creditor with intent thereby to defeat, hinder, delay or prejudice creditors wholly or in part, or to give one or more creditors a preference over other creditors or over any one or more of them;
- to void, as against the creditor or creditors injured, delayed or prejudiced every gift, conveyance, assignment or transfer, delivery over or payment of goods, chattels or effects, or of bills, bonds, notes or securities, or of shares, dividends, premiums or bonus in any bank, company or corporation, or of any other property, real or personal, made by a person when insolvent or unable to pay the person’s debts in full or when the person knows that he, she or it is on the eve of insolvency:
- with intent to defeat, hinder, delay or prejudice creditors, or any one or more of them; or
- with the intent to give a creditor an unjust preference over other creditors or over any one or more of them; and
- to follow the proceeds of property fraudulently transferred in the above circumstances
Provisions of this Act include statutory authority to void, as against such persons and their assigns, every conveyance of real property or personal property and every bond, suit, judgment and execution heretofore or hereafter made with intent to defeat, hinder, delay or defraud creditors or others of their just and lawful actions, suits, debts, accounts, damages, penalties or forfeitures.
A judgment creditor having obtained a judgment from the courts in any of Alberta, British Columbia, Manitoba, New Brunswick, Newfoundland, Nova Scotia, Nunavut, Prince Edward Island, Saskatchewan, the Northwest Territories and the Yukon Territory may apply, at any time within six years after the date of the judgment, to have the judgment registered in Ontario – and on registration, the judgment has the same force and effect as if it had been a judgment originally obtained or entered in the Ontario court.
By enactment of the Convention Between Canada And The United Kingdom Of Great Britain And Northern Ireland Providing For The Reciprocal Recognition And Enforcement Of Judgments In Civil And Commercial Matters in the Reciprocal Enforcement of Judgments (U.K.) Act, R.S.O. 1990, c. R.6, a judgment creditor having obtained a judgment in the U.K. may apply to at any time within six years after the date of the judgment, to have the judgment registered in Ontario – and on registration, the judgment has the same force and effect as if it had been a judgment originally obtained or entered in the Ontario court.
The enforceability of foreign money judgments, foreign declaratory judgments and foreign injunctions and other urgent equitable relief must each be considered on a case-by-case basis.
The following factors are considered in determining recognition and enforceability of a foreign injunction: (a) are the terms of the order clear and specific enough to ensure that the defendant will know what is expected ; (b) is the order limited in its scope and did the originating court retain the power to issue further orders; (c) is the enforcement the least burdensome remedy for the Canadian justice system; (d) is the Canadian litigant exposed to unforeseen obligations; (e) are any third parties affected by the order; and (f) will the use of judicial resources be consistent with what would be allowed for domestic litigants.
Such factors are in addition to the usual considerations of the courts in Ontario when asked to recognize a foreign judgment.
In Ontario, if the International Commercial Arbitration Act, R.S.O. 1990, c. I.9 applies, then it provides that the UNCITRAL Model Law (and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards as is contained in the UNCITRAL Model Law) is the law of Ontario. Article 35 of the UNCITRAL Model Law requires the recognition and enforcement of the award, subject to the exceptions described in Article 36. We may also, if necessary, consider the applicability of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
If you have any concerns or issues regarding debt collection or the enforcement of judgments or arbitration awards, please contact our office to arrange for an initial consultation.
Please contact Gilbertson Davis LLP to arrange an initial consultation.