COVID-19: Court Strongly Suggests Settling Writ of Execution Dispute

 In Commercial Litigation

In Ali v. Tariq, 2020 ONSC 1695 (CanLII) an application was advanced seeking to set aside a writ of execution that had been filed pursuant to a default judgment relating to lands and premises belonging to the applicant. The applicant had sold her property and the sale was scheduled to close the following day. The applicant indicated that she only learned of the default judgment and writ of execution in preparation for the sale.

Justice Myers found that the matter was urgent within the meaning of the Notice to the Profession released by the Chief Justice of the Superior Court of Justice on March 15, 2020, and then suggested, forcefully, that counsel and the parties resolve the matter without further intervention from the Court.

Justice Myers noted that the Notice to the Profession calls upon counsel and clients to assist in resolving matters before intervention from the court is necessary: “During this temporary suspension of regular operations, the Court calls upon the cooperation of counsel and parties to engage in every effort to resolve matters.

In respect of the writ of execution, Justice Myers noted that:

“As the purpose of a writ of execution is to seize a party’s equity in her property to pay a judgment, allowing a sale to close with the proceeds  to be held by counsel would seem to be steps that work in favour of the judgment creditor. It is hard to see any prejudice to either party by converting the land to cash rather than watching a sale disappear in a time of unprecedented  market uncertainty. This seems to me to be a matter that counsel acting in good faith ought to be able to lead their clients to settle today.[emphasis in original]

The matter was put over to the following day to be heard if it did not settle and nothing further has been reported at the time of posting.

This decision provides an indication of how the courts will approach urgent disputes in the face of the COVID-19 crisis, including the significant responsibility placed on counsel and the parties to “do their part during these urgent times” pursuant to the Notice to the Profession. It suggests that counsel and clients ought to carefully consider whether they have gone to sufficient lengths to try and resolve matters before seeking the assistance of the court.

How the Court addressed procedural issues

The procedural orders made by the Court were also interesting. Among other things, Justice Myers Ordered that the hearing could take place by videoconference technology whether Skype or Microsoft Teams or otherwise, and address the delivery of record materials as follows:

“All evidence, motion records, and factums shall be filed with the court by delivering them as attachments to an email to the other parties and the Motions Coordinator in searchable PDF format. No Books of Authority or statutory materials are to be sent to the other parties or the Motions Coordinator. References to case law or statutory material shall be made by hyperlinks to CanLII contained in the parties’ factums or in a separate list of authorities.”

Records were to be filed with the Civil Motions Office after the reopening of the courthouse.

This blog post was written by Chris McLeod, head of the Commercial Litigation team.  He can be reached at 613-367-0372 or at christopher.mcleod@mannlawyers.com.

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