CANADA Law and Practice Contributed by: John Pirie, Matthew Latella, David Gadsden and Christina Doria, Baker McKenzie
incurring fees running into the tens or even hundreds of thousands of dollars. In some cases, a party may be able to recover the cost of enforcement measures from the judgment debtor (see Sociedade - de - Fomen- to Industrial Private Limited v Pakistan Steel Mills Cor- poration ( Private ) Limited , 2018 BCCA 145). 2.4 Post-Judgment Procedures for Determining Defendants’ Assets As discussed in 1.1 Options to Identify Another Par- ty’s Asset Position , a judgment creditor may conduct an examination of the debtor in aid of execution. This is a powerful tool allowing the creditor to question the debtor under oath in order to obtain information relating to: • the reason for non-payment or non-performance of the judgment; • the debtor’s income and property; • the debts owed to and by the debtor; • the disposal of any property the debtor has made, either before or after the making of the order; • the debtor’s present, past and future means to satisfy the order; • whether the debtor intends to obey the order or has any reason for not doing so; and • any other matter that is pertinent to the enforce - ment of the order. Provincial rules also allow for the possible examina - tion of “any person who the court is satisfied may have knowledge” of the debtor’s finances. The court is more likely to order the examination of a third party where the debtor has been non-responsive or evasive, has fled the jurisdiction, or is deceased. A debtor who fails to attend a court-ordered exami - nation in aid of execution – or otherwise frustrates such an examination by being unco-operative, unre - sponsive or deceitful – may be found liable for civil contempt, with the following possible consequences: • a fine for the payment of money; • being ordered to do or refrain from doing an act; • the payment of costs to the creditor; • compliance with any other order the judge may consider necessary; and/or
• imprisonment for a set period or until the non-com - pliance is cured. 2.5 Challenging Enforcement of Domestic Judgments A party may challenge the enforcement of a domestic judgment by challenging the judgment itself. By way of example, in Ontario, a party may make a motion to: • have an order set aside or varied on the ground of fraud or of facts arising or discovered after it was made; or • suspend the operation of an order. The Rules also provide for setting aside or varying an order on such terms as are just, including orders made on default (Rules 19.08 and 52.01 (3)). A default judgment debtor who was not properly served with the proceedings may challenge the judg - ment on that basis, provided that the defendant did not participate in the merits of the proceeding or oth - erwise attorn to the jurisdiction of the court by agree - ment or conduct. In addition, a party can appeal a judgment, which imposes an automatic stay of a money judgment in some provinces, such as Ontario. Generally, a judg - ment creditor cannot successfully pursue enforcement of a domestic judgment until at least the initial appeal rights have been exhausted. However, once a judg - ment debtor loses an appeal, there is no further auto - matic stay, nor a further appeal as of right; appeals to the Supreme Court of Canada are only available with the leave of that court. Judgment debtor appellants facing money judgments must generally post security before the judgment can be appealed. Enforcement may also be challenged on the basis that the assets being targeted by the judgment credi - tor are not properly available for execution because they are not considered to be assets of the judgment debtor (they are the assets of a related party or are somehow immune from seizure, etc). Such scenarios tend to be highly fact-specific and are often complex – see Yaiguaje v Chevron Corporation , 2018 ONCA 472, leave to appeal to SCC refused (2018) SCCA No 255; Belokon v Kyrgyz Republic , 2016 ONCA 981,
74 CHAMBERS.COM
Powered by FlippingBook