CANADA Law and Practice Contributed by: John Pirie, Matthew Latella, David Gadsden and Christina Doria, Baker McKenzie
receiver to recover and sell the debtor’s property to satisfy the remaining judgment or debt. 2.3 Costs and Time Taken to Enforce Domestic Judgments The costs involved and the length of time taken in enforcing a judgment can vary dramatically, depend - ing largely on whether there are any known assets in the jurisdiction and how straightforward (or difficult) it is to obtain those assets. Although the simplest scenario would involve a vol - untary payment by the debtor, the most straightfor - ward enforcement scenario involves a debtor who has known, readily available assets (ideally cash) that are held in the debtor’s own name and are not immune from seizure and/or sale. In such a scenario, the costs are correspondingly minimal, with limited legal fees and only modest court filing fees. If the creditor does not have knowledge of the extent or location of the debtor’s assets, the first step is often to conduct an examination in aid of execution to iden - tify exigible assets. Counsel fees will vary for such examinations, depending on the nature of the debtor (eg, examining fraudsters who are not expected to tell the truth will require more strategic thinking). The examination can also give rise to undertakings by the debtor to produce documents or further information, which – in turn – can give rise to a re-attendance to complete the examination at a later date. In Ontario, one examination in aid of execution is allowed in a 12-month period for the same proceed - ing. If the creditor seeks to re-examine a debtor (as opposed to continuing an existing examination to ask questions arising from undertakings) within one year, they will need an order from the court. A court order is also required if the creditor seeks to examine a third party in aid of execution. The timeframe and costs will increase where the debtor attempts to avoid or frustrate such examinations or the debtor attempts to transfer assets fraudulently to avoid enforcement. In the event of such a fraudulent transfer, fresh legal proceedings arising from the enforcement efforts will sometimes be required (eg, in order to name one or more new defendants who may have received trans - ferred assets from the debtor).
Execution on a judgment itself can be complex. By way of example, if execution may give rise to a breach of the peace, the sheriff may require the assistance of the police. At one end of the scale, seizing monies in a known bank account can be relatively swift, straightforward and inexpensive. On the other hand, seizing and sell - ing real or personal property, appointing a receiver, liquidating business assets and securities are gener - ally more complex and costly. If there are no known assets and the creditor can - not reliably discover assets by an examination in aid of execution, creditors will often hire an investiga - tor or an asset-tracing firm. For simple investigative services involving local debtors, the fees are gener - ally a few thousand dollars. However, more complex enforcement costs can involve significant international investigations of corporate dealings, offshore trusts, etc, and the fees for such services can run 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-Fomento Industrial Private Limited v Pakistan Steel Mills Corporation (Private) Limited , 2018 BCCA 145). 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; 2.4 Post-Judgment Procedures for Determining Defendants’ Assets • 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
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