CANADA Law and Practice Contributed by: John Pirie, Matthew Latella, David Gadsden and Christina Doria, Baker McKenzie
Baker McKenzie 181 Bay Street Suite 2100 Toronto ON M5J 2T3 Canada
Tel: +1 416 863 1221 Fax: +1 416 863 6275 Email: ana.markaroff@bakermckenzie.com Web: www.bakermckenzie.com
1. Identifying Assets in the Jurisdiction 1.1 Options to Identify Another Party’s Asset Position Identifying an opposing party’s asset position prior to, during or following a proceeding can be critical to informing a plaintiff’s litigation or judgment enforce - ment strategy; obtaining a judgment will be of little value if the unsuccessful party has no assets or is unable to satisfy the judgment. Fortunately, a number of measures are available in Canada that can assist in identifying an opposing party’s asset position. Publicly Available Information and Private Investigations Some limited information that can shed light on an adversary’s financial position is publicly available. By way of example, title searches and land registry searches can reveal the registered owners of real property and whether any encumbrances such as liens, certificates of pending litigation (CPLs), judg - ments or mortgages are registered against the prop - erty. Searches can be conducted for personal or mov - able property, which will indicate whether the personal property of a person or corporate entity is encum - bered and subject to the security interests of other creditors. Litigation searches and insolvency searches can reveal the extent to which an adverse party has been involved in prior or concurrent litigation and/or insol - vency proceedings. If the adverse party is or has been involved in litigation or insolvency proceedings,
a review of public court filings may reveal useful finan - cial information about that party. Licensed private investigators can be engaged to investigate a party’s financial position and asset hold - ings. In Canada, private investigators are subject to industry regulations as well as provincial and federal laws. Various legitimate investigative techniques can be used by private investigators to garner financial information, including: • carrying out registry searches (including the afore - mentioned); • conducting interviews; and • performing surveillance. Examinations in Aid of Execution From a post-judgment perspective, having a full appreciation of the unsuccessful party’s asset position will facilitate a well-considered and targeted enforce - ment strategy. Once judgment is obtained, a judgment creditor can conduct an examination in aid of execu - tion to obtain information concerning the debtor’s financial position and their ability to satisfy the judg - ment. The debtor must answer questions under oath about their financial affairs, assets, income, liabilities and expenses. The debtor is also obliged to produce relevant financial records, such as financial state - ments, bank statements, tax returns, payroll informa - tion, etc – all of which can help guide the creditor’s enforcement strategy. Examinations in aid of execu - tion are discussed in more detail in 2.3 Costs and Time Taken to Enforce Domestic Judgments .
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