Why hire an Ontario Paralegal for a Judgment Debtor Examination to Collect a Small Claims Court Judgment?

A judgment debtor examination is often a judgment enforcement method of last resort. There are usually better ways to collect a small claims court judgment  if you have information about the assets of the debtor.

However, if you have no information about a debtor other than an address, the judgment debtor examination hearing, if done correctly, can help the creditor immensely.

Notice of Examination

A judgment debtor examination like most enforcement action must take place in the court’s jurisdiction where the debtor lives or where they carry on business. A Notice of Examination is issued by the court giving a specific date and date to attend the hearing. The Notice of Examination must be served on an individual debtor either personally (handing it directly to the named debtor) or by leaving a copy of the Notice of Examination in a sealed envelope addressed to the debtor at the residence of the debtor, with a person who appears to be an adult resident of the same address, and then mailing or sending another copy by courier the next day.

If an individual debtor is being examined you must also serve a black financial information form on the debtor. Both the Notice of Examination and the black financial information form must be served on the debtor at least 30 days before the scheduled hearing.

Judgment Against a Corporation

If your judgment is against a corporation you must obtain a Corporate Profile Report of the company. This will list all directors of the corporation. You must name a director that you intend to bring to into court to be examined about the corporation’s ability to pay the judgment. The Notice of Examination may be served on the corporation by leaving a copy with any officer or director of the corporation or with a person at a place of the business of the company who appears to be in control or management of the business.

Searches are also needed in the case of a debtor  who is against a sole proprietorship or a partnership.

Judgment debtor examinations are held in private unless a judge orders otherwise. The judgment debtor examination is done under oath, and is recorded.

There was a case I was involved in at the Toronto Small Claims Court where I spent about two hours examining the debtor over two days. At a later time my client was able to prove that the debtor had intentionally lied under oath. She obtained a transcript of the examination hearing, and when to a Justice of the Peace to lay a criminal perjury charge.

What can you ask a Debtor?

Small Claims Court Rule 20.10(4) sets out what a person can be examined about. It states:

20.10 (4) The debtor, any other persons to be examined and any witnesses whose evidence the court considers necessary may be examined in relation to,

(a) the reason for nonpayment;

(b) the debtor’s income and property;

(c) the debts owed to and by the debtor;

(d) the disposal the debtor has made of any property either before or after the order was made;

(e) the debtor’s present, past and future means to satisfy the order;

(f) whether the debtor intends to obey the order or has any reason for not doing so; and

(g) any other matter pertinent to the enforcement of the order.  O. Reg. 258/98, r. 20.10 (4)”

An experienced paralegal conducting  a judgment debtor examination can spend a lot of time asking the debtor questions. The above rule is so broad that they can ask about all income and assets of the debtor, debts owed to the debtor, and the debtor’s past, present and future ability to pay the judgment.

Don’t be afraid to ask the debtor anything and everything that may be helpful to you in gathering information to enforce the judgment. You must take careful notes of all the information you obtain.

At the conclusion of the judgment debtor examination a creditor or their Ontario paralegal may ask the court for several orders. Rules 20.10(7) and 20.10(8) are important. They state:

Order As To Payment

(7) After the examination or if the debtor’s consent is filed, the court may make an order as to payment.  O. Reg. 258/98, r. 20.10 (7); O. Reg. 461/01, s. 20 (1).

Enforcement Limited while Order as to Payment in Force

(8) While an order as to payment is in force, no step to enforce the judgment may be taken or continued against the debtor by a creditor named in the order, except issuing a writ of seizure and sale of land and filing it with the sheriff.  O. Reg. 258/98, r. 20.10 (8).

The creditor or their paralegal can ask the judge to make an order for monthly payments. However, while that order is in place, the creditor is limited in taking other enforcement action other then issuing a writ of seizure and sale of lands and filing it with the sheriff.

If the debtor defaults on the monthly payments as ordered by the court the creditor cannot take other enforcement action until the Notice of Default of Payment and Affidavit of Default of Payment forms have been properly served and filed with the court with proof of service. See Small Claims Court sub-rules 20.02(3)(4).

Your Ontario paralegal will advise you whether asking for an order for monthly payments is a wise thing to do under all the circumstances.

The court also has the ability to order a review hearing, if requested,  and to make specific orders for the debtor to produce documents which are generally related to the debtor’s assets, income, and living expenses.

If the person to be examined attends the judgment debtor examination but refuses to answer questions, or attends but refuses to produce documents as ordered, they can be ordered to attend a contempt hearing. This could lead to a warrant for their arrest to issue.

At the end of the day you should be able to either obtain a court order for monthly payments, or have information necessary to take other enforcement action to collect the judgment. If you obtain an order for payments, and the debtor defaults on payments as ordered, you should still have information to take other judgment enforcement action.

Paralegal Representation

If you are in Toronto or the GTA and you need to hire a paralegal for a judgment debtor examination at the Toronto Small Claims Court, Richmond Hill Small Claims Court, or Brampton Small Claims Court, or for other judgment enforcement action, contact Marshall Yarmus of Civil Litigations at 416-229-1479 or visit  https://civilparalegal.com/home_services/judgement-enforcement/

 

 

 

 

 

 

Why you should hire an Ontario Paralegal?

Paralegals are more affordable than lawyers 

 

In most cases paralegals charge less then lawyers for the same work. In some cases senior paralegals – who been doing this work for more than twenty years, have rates competitive with a junior lawyer who is still learning.

 

Paralegals are qualified and licensed

 

In 2008 licensing of paralegals began. Paralegals were licensed by what was then called the Law Society of Upper Canada. It is now called the Law Society of Ontario. This is the same organization that has regulated lawyers since 1797.

 

In 2008 those of us paralegals who were practicing for at least 3 years, and who met all the licensing requirements including being of good character were grandfathered in. We had to write a licensing exam based on legal ethics, professionalism, and practice management.

 

In the years since over 30 Ontario college campuses have been accredited by the Law Society of Ontario to be able to teach the approved paralegal course. Passing an accredited college course is now a pre-requisite to writing the paralegal licensing exam. Students must also complete a mandatory  unpaid internship.

 

In 2015, the paralegal licensing exam become more rigorous. It is now a seven hour exam. The exam now covers virtually every course and every area of permitted paralegal scope of practice, plus it still tests students on legal ethics, professionalism, and practice management.

 

Most paralegals specialize in representing in only certain courts or tribunals

The law is complex and ever changing. There is too much law for any one person to know everything. Most paralegals only represent people in a few courts or tribunals. Those of us with years of experience become experts in the court or tribunals we appear in.

 

Many paralegals belong to a professional association whose work is vital to the profession

 

Many paralegals belong to the Ontario Paralegal Association. I belong to the Ontario Paralegal Association. This paralegal association is focused on advancing the profession, lobbying the government and the Law Society, and providing continuing legal education course to its paralegal members. Before hiring a paralegal to represent you, I suggest you ask whether they are a member of any professional associations.

 

Paralegals carry errors and omissions insurance to protect you

 

If the paralegal you hire is negligent, and as a result you lose money, you can sue the paralegal knowing they are required to carry insurance to protect you – the client. Every practicing paralegal is required to carry insurance with a million coverage per claim, two million dollars total.

 

If you represent yourself and you make an error, you must bear the cost of that error.

 

Paralegals pay into a compensation fund

 

The Law Society of Ontario administers a compensation fund to protect the public against a potential dishonest paralegal; one who steals the money you have provided them in advance for fees or money received in their trust account as a settlement. To my knowledge, in the over ten years since paralegals have been regulated; I am unaware of a single claim made to the paralegal compensation fund.

 

Paralegals are required to abide by rules and by-laws intended to protect the public

 

The Law Society of Ontario will investigate every complaint made against a paralegal– at no charge to you. There are a range of possible outcomes. In the most serious cases where a paralegal has been found to have violated the rules they could be fined, suspended from practicing, or have their license to practice as a paralegal revoked. Contact the Law Society of Ontario for more information.

Paralegal Representation

If you are in Toronto or the GTA and you need to hire a paralegal for Small Claims Court representation or Landlord and Tenant Board representation, contact Marshall Yarmus of Civil Litigations at 416-229-1479 or visit www.civilparalegal.com

 

Common Landlord and Tenant Myths Part 3

 

The Residential Tenancies Act (RTA) only applies if you have a written lease

Myth: A tenancy agreement in Ontario Canada can be written, oral, or implied. Landlord and Tenant statutory rights and obligations under the Ontario Residential Tenancies Act are the same regardless of the form of the agreement.

 

 Landlords can include a “not pet” provision in the lease

Myth: A no pet provision in a lease is void. Section 14 of the Residential Tenancies Act states:

No pet” provisions void                       

14 A provision in a tenancy agreement prohibiting the presence of animals in or about the residential complex is void.  2006, c. 17, s. 14.”

However, case law dealing with condominiums have found otherwise. If the tenant lives in a condominium, the landlord must provide the tenant a copy of the condominium corporation’s declarations and by-laws. If the condominium corporation has made a declaration or by-law that there are no pets allowed in the entire building that may be enforceable against a tenant as it is against ever unit owner in the building.

 

 A landlord can arbitrarily refuse the subletting or assignment of a tenancy

 

Myth: The RTA permits a tenant to sublet or assign their lease. The tenant must request permission from the landlord to do so; however the landlord cannot unreasonably refuse the sublet or assignment request.

 

These terms subtenant and subletting are often misused by landlords and tenants in Ontario. Section 2(2) of the Ontario Residential Tenancies Act (RTA) defines subletting as:

 

2(2) For the purposes of this Act, a reference to subletting a rental unit refers to the situation in which,

(a) the tenant vacates the rental unit;

(b) the tenant gives one or more other persons the right to occupy the rental unit for a term ending on a specified date before the end of the tenant’s term or period; and

(c) the tenant has the right to resume occupancy of the rental unit after that specified date.  2006, c. 17, s. 2 (2).

 

Section 97(4) and (5) of the RTA state:

 

Consequences of subletting

(4) If a tenant has sublet a rental unit to another person,

(a) the tenant remains entitled to the benefits, and is liable to the landlord for the breaches, of the tenant’s obligations under the tenancy agreement or this Act during the subtenancy; and

(b) the subtenant is entitled to the benefits, and is liable to the tenant for the breaches, of the subtenant’s obligations under the subletting agreement or this Act during the subtenancy.  2006, c. 17, s. 97 (4).

Overholding subtenant

(5) A subtenant has no right to occupy the rental unit after the end of the subtenancy.  2006, c. 17, s. 97 (5).

 

 

If the landlord rented the apartment with an “As is” clause in the lease the tenant cannot complain about maintenance issues which existed before they moved in.

 

Myth: Section 3 of the RTA states the act applies despite any waiver or agreement to the contrary.  Section 20(1) and 20(2) of the RTA state:

 

“Landlord’s responsibility to repair

20 (1) A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.  2006, c. 17, s. 20 (1).

Same

(2) Subsection (1) applies even if the tenant was aware of a state of non-repair or a contravention of a standard before entering into the tenancy agreement.  2006, c. 17, s. 20 (2).

 

 

The Human Rights Code does not apply to Ontario tenancies covered by the Residential Tenancies Act

 

Myth: Every landlord has a duty to accommodate a tenant’s code related ground, such as a disability, to the point of undue hardship. To do so the tenant must advise the landlord of disability, and seek accommodation from the landlord.

 

Even if the tenant does not tell the landlord about the disability, the landlord cannot be willfully blind. If a disability is obvious, the landlord will be considered to have constructive knowledge of it and therefore should have attempted to address the issue with the tenant prior to taking steps to evict the tenant.

 

Landlord’s obligations to accommodate under the Human Rights Code are complicated. This is just an overview of the law.

 

See Landlord and Tenant Board Interpretation Guideline 17 for more information.

 

Interpretation Guideline 17 states in part:

 

Relief from eviction

In Walmer Developments v. Wolch15 the Divisional Court held that the Ontario Rental Housing Tribunal (now the Board) must consider and apply the Code when exercising its authority to grant relief from eviction. A Member considers such relief pursuant to section 83 of the RTA. Section 83 states that the Member must have regard to all the circumstances to determine whether it would be unfair to refuse the landlord’s eviction application or postpone the enforcement of the eviction order.

If the Member determines that the landlord has failed to accommodate a tenant covered by one or more of the categories contained in subsection 2(1) of the Code up to the point of undue hardship, the Member must consider relief from eviction in accordance with clause (a) of subsection 83(1) of the RTA. However, even if relief is granted, the Member may still consider whether other types of conditions and requirements should be ordered to address the conduct or problem at issue. The authority to make such orders comes from subsection 204(1) of the RTA.

 

 

My lease has expired. My tenancy is now on a month to month basis. Terms of the expired written lease no longer apply

 

Myth: At the expiry of a written lease the tenancy continues on a month to month basis indefinitely on the same terms and conditions contained in the written lease. Evictions based on behavior of the tenant that are contrary to the written lease can still be the subject of an eviction application to the Ontario Landlord and Tenant Board (LTB).

 

Landlord and tenant applications to the LTB can be complicated. Even cases that start out as straight forward can become complicated at a hearing. Whether you are a landlord or a tenant bringing or defending an application at the Landlord and Tenant Board your best weapon to hire an experienced licensed, trained, and insured Paralegal Ontario.

Paralegal Representation

If you are in Toronto or the GTA and you need to hire a paralegal, contact Marshall Yarmus of Civil Litigations at 416-229-1479 or visit https://civilparalegal.com/home_services/landlord-and-tenant-board/ 

Landlord and Tenant Board