After you obtain a judgment from the Superior Court of Justice (SCJ), this is often the beginning of the final step in the court process – enforcement and collection.
This is a short guide outlining the steps involved in enforcing a Superior Court judgment for a monetary lump sum and achieving your just final result.
Filing the judgment order with the court registrar
At the court hearing for the judgment, the order from the judge is valid from the time the judgment is granted. However, to take effect and be enforceable against other parties, the order must be served and filed with the court registrar (court administration) to give notice to the parties involved and to be registered and verifiable in the courthouse system. Practically, this means that either the court clerk at the judgment hearing will send internally the judgment to be filed with the registrar, or you have to file the judgment online on the Justice Services Online portal (JSO) or the Ontario Court Public portal (OCPP, specifically for the Toronto court region). The court registrar then ‘enters’ the judgment and sends you a confirmation email with the stamped court judgment document.
Serving the judgment order on all parties
Once you receive confirmation that the judgment has been entered with the courthouse, then you would proceed to serve the court judgment upon all parties according to the Rules of Civil Procedure service rules or as the judgment requires.
Generally, personal service is not required for service of the judgment order, so the order can be served by one of the alternatives to personal service methods as prescribed by the Rules or the order.
Once service is completed, the next step is generally determined by the deadlines imposed by the judgment order. For example, if the judgment is for payment of a lump sum, then the defendant party has this time to comply with the order or as the order stipulates. To increase the likelihood of successful service, the order can be served via multiple methods to ensure that the defendant parties have received it and are aware that the judgment has been granted against them.
If the defendant only becomes aware of the judgment at this stage or intends to contest the content of the judgment, then there is a short limited time window when the defendant can seek to appeal or vary the order.
Enforcing the order by writ of execution
Once the deadline for complying with the order has passed and if the defendant parties have still failed to comply, the next step is to investigate what are the assets and funds of the defendant, now the judgment debtor, and to file a writ of execution with the local sheriff’s office to enforce the order.
The sheriff is an officer of the court and the sheriff’s office is a department of the Superior Court with a local branch in each county in the province. The writ empowers the sheriff to take action to enforce the judgment in the local county jurisdiction as the writ describes. Note that the sheriff is authorized to take action as specifically defined in the writ. This means that the writ has to clearly identify the assets to be seized or actions that the sheriff is authorized to take. However, the sheriff’s office does not investigate the assets or funds of the judgment debtor. This information has to be obtained from a third-party investigator that can identify and locate the assets and funds of the judgment debtor and then filed with the sheriff’s office.
Investigating the assets and funds of a judgment debtor
Third party investigators can assist to conduct a series of searches to identify and locate assets, accounts, funds, land (real property), personal property, or other sources that can be used to satisfy the judgment debt.
Often, the availability of the assets, property, and other funds a judgment debtor has will determine what is the appropriate strategy to enforce the judgment. This is especially the case when there is risk that the judgment debtor will move or transfer assets to avoid enforcement and collection.
The searches that the third-party investigators can perform include:
- Property registry search using an address
- Motor vehicle search using a driver’s licence number, VIN, or licence plate
- Corporate registry search using a legal or operating name of a corporation
- Bankruptcy search using the name of a person or corporation
- Skip trace search of a person using date of birth and other identifying information
- Phone number reverse lookup search
- Social media searches
- Open-source online information searches
- Searches of other personal, business, or government databases applicable to the judgment debtor
Bank account information is private and would require a court order to disclose or to trace funds between accounts if the funds have been transferred.
Many of these searches require some preliminary information to be effective. For this reason, an effective strategy is to obtain information about the judgment debtor and his potential assets earlier in the court proceeding to ensure that there will be identifiable assets that can satisfy a judgment debt.
Examination in aid of execution
In tandem with the searches conducted by the third-party investigators, notices of examination in aid of execution can be served on judgment debtors to compel them to attend at an examination for discovery to provide evidence under oath about their assets, property, income, and other financial matters, as well as their reasons for non-payment, attempts to dispose of or transfer away assets, and their ability and intention to satisfy the judgment debt.
The notices of examination in aid of execution must be served personally on the judgment debtor to ensure they received them and are aware of the examination. The Superior Court often requires three attempts to serve notices of examination in aid of execution before the court will grant more aggressive remedies to compel payment by the judgment debtor, such as holding the judgment debtor in contempt of court with the potential penalty of arrest and jail.
Different types of writs
There are several types of writs of execution that can be filed with the sheriff’s office to empower the sheriff to obtain assets to satisfy a judgment debt. The types of writs include:
- Writ of execution, used generally to enforce court orders
- Writ of seizure and sale, to seize land or personal property and auction it
- Writ of possession, to evict a person from a property and seize the property
- Writ of delivery, to seize and repossess personal property
- Requisition for garnishment, to garnish bank accounts, revenue or income streams, tax accounts with Canada Revenue Agency, or other sources of income
Once the sheriff’s office receives the writ and any prescribed notice period has passed, the sheriff has authority to take action to enforce the writ.
Further application or motion to the Superior Court
If the judgment debtor’s funds or assets cannot be located to satisfy the judgment debt, then one can file an application or motion to the Superior Court to seek further relief. This may include:
- disclosure orders under Rule 30.10 to compel non-parties to produce information and records about other assets and funds the judgment debtor has
- expanding the scope of the judgment order to include other relief
- seeking to reverse transfer or transactions designed to defeat payment of the judgment debt
- pursuing legal action against other parties if they assisted in the dissipation of assets to defeat paying the judgment
- seeking contempt orders against non-complying debtors
- other solutions or remedies that may satisfy the judgment debt that do not fit within a prescribed rule or authority and as the circumstances would justify
To help ensure a successful enforcement of a judgment debt, plan in advance early in the court proceeding a strategy for enforcement and collection and consult with experienced legal counsel how to achieve your final and just result.
How Can We Assist you?
Our lawyers have expertise and experience in judgment debt enforcement litigation matters and can assist you in resolving your legal issues in a timely and cost-effective manner. Please contact us for an initial consultation through our Request Consultation Form, email to info@gilbertsondavis.com, or by telephone (416) 979-2020.
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