2010 Willem C. Vis Moot – Day 5 in Pictures

I took a day trip to Melk, which is 80 minutes by train out of Vienna. The fare is quite reasonable –  approximately 27 Euros return for two people.

View from the Train

View of Melk from the train station

Bee Hive

View from the stairs to Melk Abbey

Inside Melk Abbey’s Courtyard

The Danube

The Library in Melk Abbey

A secret door hidden in the bookcase

The Melk Abbey Church

Looking up – the church ceiling

There’s always a gift shop!

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2010 Willem C. Vis Moot – Day 3 in Pictures

Walking to Cafe Central – one of the world’s most beautiful cafes.

Cafe Central – photos just don’t do it justice.

The Hofburg

Demel Konditorei – An incredible pastry shop founded in 1785.

Pastry Chefs at Work…

A good place to spend an idle afternoon playing chess and drinking beer.

 

 

 

Standard Viennese Fare: “Goulash”

The cellar of the Bresl dates back to the 1300s, with walls of Roman construction…plus the food is wonderful.

 

17th Willem C. Vis Moot – Day 2 in Pictures

My first arbitration round was at 8.30 am on Saturday, April 27, 2010:  University of Groningen (Netherlands) v. George Washington University (USA). The round was held at the University of Vienna’s Law School, the Juridicum:

The Juridicum, located at Schottenbastei 10-16.

Milling around outside of the Juridicum

Registration is held on the Juridicum's top floor ("DG") accompanied by the all-important coffee stations.

Following arbitration of the first round, we met with the oralists in the Juridicum to give feedback. My co-arbitrators were Dr. Petra Butler (sitting to my right - she was last year's coach of the 2009 winning team, the University of Wellington) and Dr. Chi Manjiao from China (not pictured).

Team shot - Gronigen and G. Washington

Walking back to my apartment from the Juridicum - live music

Scenes from the market

Pretzels anyone?

Whar a boar!

Beret Sale! Only in Europe...

17th Annual Willem C. Vis Moot – Day 1 in Pictures

I am so glad to be here this year…I almost didn’t make it. I was co-opted into attending the PLRB in San Antonio (one hour behind Toronto time), and returned the day before heading out to Vienna (6 hours ahead of Toronto time), further to which I had booked tickets with British Airways…fortunately, I just missed the strike dates.

Landing at Heathrow Airport

Landing at the scenic British Airways Terminal

The Heathrow Airport Terminal

A Five Hour Stopover

Spot the Mootie! Someone is carrying Schlectriem’s Commentary on the CISG!

Vienna International Airport

Heading to the Trains

In my opinion, the most economical way to get to Vienna’s city center from the airport is by train. There is an express train (CAT), however I prefer the plain old ordinary train which costs only 3,60 Euros and will provide you with a good introduction to the city’s public transportation system. Simply follow the sign that looks like a little lightening bolt – this will lead you to the train platform (the station is known as “Flughafen Wien” which translates as “Airport Vienna”):

The Train Station at Vienna International Airport

At the platform, there are plenty of ticket terminals which look like this:

Purchasing Train & Subway Tickets

Pick the “VOR Single Trip Ticket – Selection of Destination”

Pick “Wein Mitte” as the destination – this will take you to the city center where you can transfer to the Subway (U-Bahn) which is included in the cost of your ticket.

Click “Buy Ticket”

The machines accept cash or credit card. Make sure you remember to pick up the ticket – the conductors perform regular ticket checks. In order to determine which platform at which you board the train, have a look at the Schedule:

You will be boarding the OBB train, not a CAT train. As shown above, an OBB train  to Wien Mitte departs from Platform 2 at 7:18 p.m. and 7:48 p.m.

At Wein Mitte, you simply transfer to the subway line with a station close to your hotel (you will need to map this out beforehand).

My Viennese Apartment – Home Away from Home

The kitchenette is a lifesaver.

View of the Street from my Window

How To Enforce Civil Judgments in Ontario

NOTE: The following article is directed to subrogating insurance companies who have obtained judgments against defaulting creditors, however the methods of enforcement discussed below are not limited to subrogated actions and apply more generally to civil judgments for damages that are to be enforced in Ontario.

INTRODUCTION

As subrogation professionals will know, obtaining a judgment against a defendant in a subrogated action may often be only the first step in a long process – obtaining a judgment is no guarantee of obtaining payment. When a court issues a judgment, it is not concerned with whether the unsuccessful party will ever actually pay the amount. It is up to the subrogating insurer, being the nominal plaintiff, to take this initiative. This situation is the same in cases where a criminal court orders that a defendant pay restitution, and the order is later converted to a civil judgment. Nonetheless, our civil court system does provide the successful insurer (the “judgment creditor”) with mechanisms to assist in collecting payment from the unsuccessful defendant (the “judgment debtor”). The two most common mechanisms for this purpose are (1) a writ of seizure and sale, and (2) a garnishment of debts, such as wages, owing to the debtor. In practice, however, these mechanisms can become quite complicated and are often inefficient. As a practical matter, it therefore bodes well for subrogation professionals to be aware of the advantages and limits of these enforcement mechanisms from the outset of contemplated litigation.

WRITS OF SEIZURE AND SALE

General Information

A writ of seizure and sale is the usual method of enforcing a judgment or court order in Ontario. Generally speaking, a writ is a document that is issued by a court to an Ontario sheriff. Once filed with a sheriff’s office, the writ allows a judgment creditor to direct a sheriff to seize and sell real estate and personal property owned by the debtor in order to satisfy the creditor’s judgment. Any proceeds of a sale that exceed the sum of (a) monies owed to creditors, including interest, and (b) the costs of enforcing the writ, are returned to the debtor. This writ, however, is only effective to the extent that a debtor actually has assets that can be sold to satisfy this judgment. There is no minimum amount that a debtor must owe in order for a creditor to obtain a writ. The lawyer for the judgment creditor obtains this writ by filing a “requisition” for the writ with the court’s registrar, along with proof of the amount owing. A requisition is, essentially, a request to the court for a writ, addressed to a sheriff’s office in a region where the debtor holds property. The writ tells the sheriff of the amount of money that is owed to the creditor, as well as any payments that have been received since the judgment was issued.

Ontario does not have a “province-wide” registry for filing writs. Instead, Ontario is divided into districts, each with a separate sheriff’s office that can enforce writs only for property located in that particular district. The practical consequence is that a creditor will have to determine the location(s) in Ontario of debtor’s property, and file a writ with the sheriff’s office for each district where property is located. A creditor can file a writ of seizure and sale within six years of obtaining an order or judgment. A writ must be renewed every six years after the date of filing or it will expire.

Another important aspect of filing a writ is that a sheriff will not automatically enforce the writ or ‘keep tabs’ on the debtor’s assets for the creditor. Even though a writ is filed with the sheriff’s office, the sheriff will not take steps to enforce the writ until directed to do so by the creditor, and will require specific instructions and information from the creditor with respect to any property that is available for seizure. The sheriff also charges the creditor a fee for seizing the debtor’s assets and selling them by way of a public sale and may require a “bond of indemnity” from the creditor which makes a creditor liable for any wrongful seizure of such property. Although the creditor can add the expenses of enforcing a judgment to the amounts owing by a debtor, it is up to a creditor to ensure that the debtor has assets that can properly be seized and sold so as to make the costs of enforcement worthwhile. Additionally, the proceeds of a sale do not go directly to the creditor who requested that the writ is enforced, but instead are held by the sheriff for 30 days and then distributed equally among the debtor’s creditors.

Seizure and Sale of Personal Property

The definition of “property” that can be sold under a writ of seizure and sale is quite broad. In addition to seizing tangible land and goods, the sheriff can seize:

  • Money, cheques, bills of exchange, promissory notes, bonds, mortgages or other securities, book debts and “choses in action”;
  • Money paid into court pending judgment;
  • The mortgagee’s interest under a mortgage;
  • Rights under letters patent of invention;
  • Equitable interests, including an equity of redemption;
  • Shares in a private company; and,
  • Shares or dividends in a chartered bank or corporation having transferable shares.

Under Ontario’s Execution Act, certain assets belonging to a debtor are sheltered from seizure and sale by creditors. Generally speaking, the following items are exempt from seizure:

  • necessary and ordinary wearing apparel of the debtor and his or her family not exceeding $5,650 in value;
  • the household furniture, utensils, equipment, food and fuel that are contained in and form part of the permanent home of the debtor, not exceeding $11,300 in value;• tools and instruments and other chattels ordinarily used by the debtor in the debtor’s business, profession or calling not exceeding $11,300 in value (unless the debtor is in the farming business, in which case different limits apply);
  • a motor vehicle not exceeding $5,650 in value;
  • welfare payments;
  • insurance moneys;
  • pension benefits;
  • a portion of a worker’s net wages; and
  • benefits under the Canada Pension Plan and under the Employment Insurance Act.

Seizure and Sale of Land

When a writ is filed with an Ontario sheriff, the sheriff will automatically forward the writ to the Land Titles Office in his particular district. The writ is said to “bind” any land or real estate owned by the debtor in the sheriff’s district. That is, even if the debtor sells the property to a third party, then so long as the third party could have learned about the writ by contacting the sheriff’s office and making the proper inquiries, the writ stays attached to the property so that the property can be sold by the creditor in satisfaction of the judgment. Where a debtor owns a home jointly with a spouse or some other person, the property can still be sold under a writ of seizure and sale, but the creditor can only sell the debtor’s joint interest in the property. Typically, the purchaser of the property would buy the debtor’s joint interest and become a joint owner with the spouse. The purchaser would then bring partition proceedings which would force the spouse to purchase the creditor’s joint interest or sell the property in its entirety and split the proceeds. Another option would be for the creditor to purchase the spouse’s joint interest, and then re-sell the property.

A creditor is required to follow certain timelines before selling a debtor’s land and real estate. Before a creditor can take any steps to sell a debtor’s lands, the writ of seizure and sale must remain filed with the sheriff for at least four months. While the creditor can take steps to prepare for the sale after that time, the sheriff cannot sell the property for another two months, or six months from the date that the writ is issued. Before a sheriff conducts a sale of land, the sheriff requires specific instructions to sell the lands together with a deposit of $5,000 to cover the cost of advertising and $240 to cover the sheriff’s fees for enforcement. The sheriff has discretion to adjourn the sale date, if necessary, in order to realize the best possible sale price.

GARNISHMENT OF INCOME AND OTHER DEBTS

A creditor may enforce an order for repayment or recovery of money by garnishing the debts payable to the debtor by other persons, referred to as “garnishees”. Garnishment is a legal mechanism that permits a creditor to seize or intercept a portion of debts that are owed to the debtor by third parties, before payment is made. Notice of garnishment can be used with respect to a debtor’s bank account, wages owing from an employer, or other monies owing to a debtor.

A Notice of Garnishment warns a third party garnishee that the debtor owes money to the creditor. The Notice explains to the garnishee that they must pay to the Sheriff the money (or property) in the garnishee’s possession owing to the debtor up to the amount set out in the Notice of Garnishment. If the garnishee fails to do so, the court can award judgment against the garnishee. The garnishee must either pay the amount set out in the Notice or complete a “Garnishee’s Statement” stating the reasons why the debt was not paid. Any debt payable to the debtor by the garnishee, as well as any future debt payable within six years, is subject to garnishment.

Just as with a Writ, a Notice of Garnishment is issued by the court and is filed with the Sheriff’s Office in the garnishee’s district. A separate Notice must be obtained for each Garnishee. Thus, each time a debtor changes employment, a new Notice of Garnishment must be obtained from the court. Garnishment can be used to intercept:

  • up to 20% of a debtor’s wages;
  • commissions and gratuities;
  • pay equity to employees;
  • moneys held in a debtor’s bank account, or one-half of a debtor’s joint bank account;
  • moneys held in a R.R.S.P., including a locked-in R.R.S.P;
  • the cash surrender value of a life insurance policy;
  • moneys held as a retainer by a lawyer where no further services are contemplated;
  • moneys owing to a medical doctor by OHIP; and,
  • inheritance owed to a residual beneficiary.

The following debts are exempt from garnishment:

  • 80% of a debtor’s wages, unless the debt pertains to spousal support in which case the exemption is reduced to 50%;
  • R.R.S.Ps that contain an insurance element;
  • investor-directed R.R.S.Ps;
  • moneys payable on account of personal injury damages for pain and suffering;
  • moneys held by a debtors lawyer as a retainer for an appeal or defence;
  • moneys paid by a debtor to a landlord as a security deposit under a lease; and
  • moneys deposited by a debtor as security for a bank in issuing a letter of credit.

CONCLUSION

When an insurer is successful in a subrogated action, but the defendant is unwilling or unable to pay the judgment, the two principal methods by which the insurer can enforce the judgment are (1) seizure and sale of the debtor’s real and personal property; and (2) garnishment of debts owing to the debtor. In practice, however, these mechanisms can become quite inefficient. In Ontario, there is no centralized bureaucracy for the sheriff’s offices with respect to enforcement of judgments. Additionally, these enforcement mechanisms are only as good as the assets and debts to which they attach. Initiating subrogated litigation may only worthwhile if, at the end of the day, there is money to recover. Obtaining a judgment for a debt is only the first part of the battle, since enforcement of that debt may be a very difficult and time-consuming process. It is important therefore, before embarking upon litigation, to discuss possible recovery options and other issues with an experienced lawyer.

INTRODUCTION
As subrogation professionals will know, obtaining a judgment against a defendant in a
subrogated action may often be only the first step in a long process – obtaining a judgment is
no guarantee of obtaining payment. When a court issues a judgment, it is not concerned with
whether the unsuccessful party will ever actually pay the amount. It is up to the subrogating
insurer, being the nominal plaintiff, to take this initiative. This situation is the same in cases
where a criminal court orders that a defendant pay restitution, and the order is later converted
to a civil judgment.
Nonetheless, our civil court system does provide the successful insurer (the “judgment
creditor”) with mechanisms to assist in collecting payment from the unsuccessful defendant
(the “judgment debtor”). The two most common mechanisms for this purpose are (1) a writ
of seizure and sale, and (2) a garnishment of debts, such as wages, owing to the debtor.
In practice, however, these mechanisms can become quite complicated and are often
inefficient. As a practical matter, it therefore bodes well for subrogation professionals to be
aware of the advantages and limits of these enforcement mechanisms from the outset of
contemplated litigation.
WRITS OF SEIZURE AND SALE
General Information
A writ of seizure and sale is the usual method of enforcing a judgment or court order
in Ontario. Generally speaking, a writ is a document that is issued by a court to an
Ontario sheriff.
Once filed with a sheriff’s office, the writ allows a judgment creditor to direct a sheriff to
seize and sell real estate and personal property owned by the debtor in order to satisfy the
creditor’s judgment. Any proceeds of a sale that exceed the sum of (a) monies owed to
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November 15, 2007
METHODS FOR ENFORCING CIVIL JUDGMENTS IN ONTARIO
By: Pamela D. Pengelley
Cozen O’Connor
One Queen Street East, Suite 1920, Toronto ON M5C 2W5
Phone: (416) 361-3200 • Fax: (416) 361-1405
ppengelley@cozen.com
creditors, including interest, and (b) the costs of enforcing the writ, are returned to the debtor. This writ,
however, is only effective to the extent that a debtor actually has assets that can be sold to satisfy this
judgment. There is no minimum amount that a debtor must owe in order for a creditor to obtain a writ.
The lawyer for the judgment creditor obtains this writ by filing a “requisition” for the writ with the court’s
registrar, along with proof of the amount owing. A requisition is, essentially, a request to the court for a writ,
addressed to a sheriff’s office in a region where the debtor holds property. The writ tells the sheriff of the
amount of money that is owed to the creditor, as well as any payments that have been received since the
judgment was issued.
Ontario does not have a “province-wide” registry for filing writs. Instead, Ontario is divided into districts, each
with a separate sheriff’s office that can enforce writs only for property located in that particular district. The
practical consequence is that a creditor will have to determine the location(s) in Ontario of debtor’s property,
and file a writ with the sheriff’s office for each district where property is located. A creditor can file a writ of
seizure and sale within six years of obtaining an order or judgment. A writ must be renewed every six years
after the date of filing or it will expire.
Another important aspect of filing a writ is that a sheriff will not automatically enforce the writ or ‘keep tabs’
on the debtor’s assets for the creditor. Even though a writ is filed with the sheriff’s office, the sheriff will not
take steps to enforce the writ until directed to do so by the creditor, and will require specific instructions and
information from the creditor with respect to any property that is available for seizure. The sheriff also charges
the creditor a fee for seizing the debtor’s assets and selling them by way of a public sale and may require a
“bond of indemnity” from the creditor which makes a creditor liable for any wrongful seizure of such
property. Although the creditor can add the expenses of enforcing a judgment to the amounts owing by a
debtor, it is up to a creditor to ensure that the debtor has assets that can properly be seized and sold so as to
make the costs of enforcement worthwhile. Additionally, the proceeds of a sale do not go directly to the
creditor who requested that the writ is enforced, but instead are held by the sheriff for 30 days and then
distributed equally among the debtor’s creditors.
Seizure and Sale of Personal Property
The definition of “property” that can be sold under a writ of seizure and sale is quite broad. In addition to
seizing tangible land and goods, the sheriff can seize:
• Money, cheques, bills of exchange, promissory notes, bonds, mortgages or other securities,
book debts and “choses in action”;
• Money paid into court pending judgment;
• The mortgagee’s interest under a mortgage;
• Rights under letters patent of invention;
• Equitable interests, including an equity of redemption;
• Shares in a private company; and,
Page 2
SUBROGATION & RECOVERY
Alert!
News Concerning Recent Subrogation & Recovery Issues
• Shares or dividends in a chartered bank or corporation having transferable shares.
Under Ontario’s Execution Act, certain assets belonging to a debtor are sheltered from seizure and sale by
creditors. Generally speaking, the following items are exempt from seizure:
• necessary and ordinary wearing apparel of the debtor and his or her family not exceeding
$5,650 in value;
• the household furniture, utensils, equipment, food and fuel that are contained in and form
part of the permanent home of the debtor, not exceeding $11,300 in value;
• tools and instruments and other chattels ordinarily used by the debtor in the debtor’s
business, profession or calling not exceeding $11,300 in value (unless the debtor is in the
farming business, in which case different limits apply);
• a motor vehicle not exceeding $5,650 in value;
• welfare payments;
• insurance moneys;
• pension benefits;
• a portion of a worker’s net wages; and
• benefits under the Canada Pension Plan and under the Employment Insurance Act.
Seizure and Sale of Land
When a writ is filed with an Ontario sheriff, the sheriff will automatically forward the writ to the Land Titles
Office in his particular district. The writ is said to “bind” any land or real estate owned by the debtor in the
sheriff’s district. That is, even if the debtor sells the property to a third party, then so long as the third party
could have learned about the writ by contacting the sheriff’s office and making the proper inquiries, the writ
stays attached to the property so that the property can be sold by the creditor in satisfaction of the judgment.
Where a debtor owns a home jointly with a spouse or some other person, the property can still be sold under
a writ of seizure and sale, but the creditor can only sell the debtor’s joint interest in the property. Typically, the
purchaser of the property would buy the debtor’s joint interest and become a joint owner with the spouse. The
purchaser would then bring partition proceedings which would force the spouse to purchase the creditor’s joint
interest or sell the property in its entirety and split the proceeds. Another option would be for the creditor to
purchase the spouse’s joint interest, and then re-sell the property.
A creditor is required to follow certain timelines before selling a debtor’s land and real estate. Before a
creditor can take any steps to sell a debtor’s lands, the writ of seizure and sale must remain filed with the
sheriff for at least four months. While the creditor can take steps to prepare for the sale after that time, the
sheriff cannot sell the property for another two months, or six months from the date that the writ is issued.
Before a sheriff conducts a sale of land, the sheriff requires specific instructions to sell the lands together with
Page 3
SUBROGATION & RECOVERY
Alert!
News Concerning Recent Subrogation & Recovery Issues
a deposit of $5,000 to cover the cost of advertising and $240 to cover the sheriff’s fees for enforcement. The
sheriff has discretion to adjourn the sale date, if necessary, in order to realize the best possible sale price.
GARNISHMENT OF INCOME AND OTHER DEBTS
A creditor may enforce an order for repayment or recovery of money by garnishing the debts payable to the
debtor by other persons, referred to as “garnishees”. Garnishment is a legal mechanism that permits a creditor
to seize or intercept a portion of debts that are owed to the debtor by third parties, before payment is made.
Notice of garnishment can be used with respect to a debtor’s bank account, wages owing from an employer,
or other monies owing to a debtor.
ANotice of Garnishment warns a third party garnishee that the debtor owes money to the creditor. The Notice
explains to the garnishee that they must pay to the Sheriff the money (or property) in the garnishee’s
possession owing to the debtor up to the amount set out in the Notice of Garnishment. If the garnishee fails
to do so, the court can award judgment against the garnishee. The garnishee must either pay the amount
set out in the Notice or complete a “Garnishee’s Statement” stating the reasons why the debt was not paid.
Any debt payable to the debtor by the garnishee, as well as any future debt payable within six years, is subject
to garnishment.
Just as with a Writ, a Notice of Garnishment is issued by the court and is filed with the Sheriff’s Office in the
garnishee’s district. A separate Notice must be obtained for each Garnishee. Thus, each time a debtor changes
employment, a new Notice of Garnishment must be obtained from the court.
Garnishment can be used to intercept:
• up to 20% of a debtor’s wages;
• commissions and gratuities;
• pay equity to employees;
• moneys held in a debtor’s bank account, or one-half of a debtor’s joint bank account;
• moneys held in a R.R.S.P., including a locked-in R.R.S.P;
• the cash surrender value of a life insurance policy;
• moneys held as a retainer by a lawyer where no further services are contemplated;
• moneys owing to a medical doctor by OHIP; and,
• inheritance owed to a residual beneficiary.
The following debts are exempt from garnishment:
• 80% of a debtor’s wages, unless the debt pertains to spousal support in which case the
exemption is reduced to 50%;
Page 4
SUBROGATION & RECOVERY
Alert!
News Concerning Recent Insurance Coverage Issues
• R.R.S.Ps that contain an insurance element;
• investor-directed R.R.S.Ps;
• moneys payable on account of personal injury damages for pain and suffering;
• moneys held by a debtors lawyer as a retainer for an appeal or defence;
• moneys paid by a debtor to a landlord as a security deposit under a lease; and
• moneys deposited by a debtor as security for a bank in issuing a letter of credit.
CONCLUSION
When an insurer is successful in a subrogated action, but the defendant is unwilling or unable to pay the
judgment, the two principal methods by which the insurer can enforce the judgment are (1) seizure and sale
of the debtor’s real and personal property; and (2) garnishment of debts owing to the debtor. In practice,
however, these mechanisms can become quite inefficient. In Ontario, there is no centralized bureaucracy for
the sheriff’s offices with respect to enforcement of judgments. Additionally, these enforcement mechanisms
are only as good as the assets and debts to which they attach. Initiating subrogated litigation may only
worthwhile if, at the end of the day, there is money to recover. Obtaining a judgment for a debt is only the first
part of the battle, since enforcement of that debt may be a very difficult and time-consuming process. It is
important therefore, before embarking upon litigation, to discuss possible recovery options and other issues
with an experienced lawyer.
Cozen O’Connor is internationally recognized for its ability to successfully evaluate and prosecute all types
of subrogated property losses, both domestic and international. Our lawyers’ expertise in dealing with all
forms of property damage disputes, and issues surrounding their enforcement, can be deployed for the benefit
of your company to assist in the recovery of subrogated claims.

Ontario Court Denies Ex Parte Motion to Preserve Facebook

A New Decision on Facebook: Ex Parte Injunctions and Preservation Orders

Another Ontario decision dealing with production of Facebook profiles in personal injury lawsuits was released on October 29, 2009. In Schuster v. Royal & SunAlliance Insurance Company of Canada, the defendant brought a motion before a judge, without notice to the plaintiff, seeking an injunction requiring the plaintiff to preserve and produce her Facebook webpage.  The particulars of the decision are set out in detail, below.

Discovery CartoonThe plaintiff claimed that, as a result of a car accident, she suffered injuries that impaired her ability to work and to participate in social and recreational activities. During litigation, she produced an “affidavit of documents” (a sworn list of all documents in a party’s possession, including electronic documents, that are relevant to the lawsuit) in which she failed to disclose the existence of her Facebook account.

The defendant hired a surveillance company and discovered the Facebook account, for which access was restricted to 67 “friends”, one being the plaintiff’s mother-in-law. The defendant was able to obtain photographs from the mother-in-law’s Facebook account in which there were pictures of the plaintiff dated before and after the accident, although she was just standing, sitting or reclining  (she was not engaged in any activities in relation to which she claimed to be impaired).

The defendant had brought the motion on an ex parte basis (that is, without notice to the plaintiff) seeking an Interim Order for the Preservation of Property under Rule 45.01 of Ontario’s Rules of Civil Procedure, R.R.O. 1990, Reg. 194). (Ex parte motions are typically granted where urgency arises because there is a reason to believe that the responding party, if given notice of the motion, will take steps to frustrate the process of justice before the motion can be decided). Rule 45.01 states:

INTERIM ORDER FOR PRESERVATION OR SALE

45.01 (1)  The court may make an interim order for the custody or preservation of any property in question in a proceeding or relevant to an issue in a proceeding, and for that purpose may authorize entry on or into any property in the possession of a party or of a person not a party. R.R.O. 1990, Reg. 194, r. 45.01 (1).

(2)  Where the property is of a perishable nature or likely to deteriorate or for any other reason ought to be sold, the court may order its sale in such manner and on such terms as are just. R.R.O. 1990, Reg. 194, r. 45.01 (2).

The Court noted that Rule 45.01(1) is “typically used to ensure that important documents, information or other items are preserved and available for the trial of an action where there is a strong likelihood that the defendant would destroy this evidence once notified of the proceedings”. As a result, an order under Rule 45.01 is similar to a civil search warrant and therefore subject to a higher threshold test than an “ordinary” ex parte injunction, pursuant to s. 101 of the Courts of Justice Act (“CJA”). (Note that Rule 40 of the Rules of Civil Procedure sets out the procedure to be followed in order to obtain an order under s. 101 of the CJA).

Justice Price noted that it was unclear whether the defendant was seeking access to just the web site, or the preservation and production of the website contents, and noted that an order granting the defendant access to the site would be far more invasive than ordering the plaintiff to preserve the contents of the site. Since an order granting the defendant access to the plaintiff’s Facebook account would have required the plaintiff to provide her username and password to the defendant (and was beyond the scope of her obligation to disclose relevant documents), the Court proceeded on the assumption that the defendant was only seeking an order for preservation of the site.

Justice Price then considered whether the defendant had met the test for an ordinary ex parte injunction under s. 101 of the CJA:

101.(1)In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted or a receiver or receiver and manager may be appointed by an interlocutory order, where it appears to a judge of the court to be just or convenient to do so. R.S.O. 1990, c. C.43, s. 101 (1); 1994, c. 12, s. 40; 1996, c. 25, s. 9 (17)

Terms

(2)An order under subsection (1) may include such terms as are considered just. R.S.O. 1990, c. C.43, s. 101 (2).

In considering whether to grant the interlocutory  injunction, Justice Price applied the test set out by the Supreme Court of Canada in R.J.R. Macdonald Inc. v. Canada (A.G.):

1.)    Is there a serious question to be tried? Judge Price found that there was a serious question to be tried, namely, the extent to which the accident had prevented the plaintiff from earning and income and engaging in recreational activities.

2.)    Will the applicant suffer irreparable harm if the application is not granted? This is usually determined by considering whether damages will be an adequate remedy. In this case, the defendant argued that without the content of the Facebook webpage, it woudl be deprived of the opportunity to properly respond to the plaintiff’s claim. The Judge disagreed noting that proof of irreparable harm must be clear and not speculative ; there was no evidence that there were incriminating photographs on the plaintiff’s Facebook page. In fact, Justice Price held that since the plaintiff had not listed the Facebook page in her affidavit of documents, the presumption was that this was because the Facebook page did not contain any relevant information. Unlike in previous Ontario cases dealing with Facebook production, in this case, the judge was NOT prepared to draw an inference from the nature of Facebook itself or the plaintiff’s profile that her Facebook page was likely to contain relevant evidence, stating:

I do not regard the mere nature of Facebook as a social networking platform or the fact that the Plaintiff possesses a Facebook account as evidence that it contains information relevant to her claim or that she has omitted relevant documents from her Affidavit of Documents. The photographs that the Defendant has obtained from the Plaintiff’s account in the present case do not appear, on their face, to be relevant”.

3.   Whom Does the Balance of Convenience Favor? In weighing the privacy interests of the plaintiff and the defendant’s interest in full disclosure, the court concluded that the balance favored the plaintiff:

  • The plaintiff’s failure to disclose her Facebook account in her affidavit of documents should give rise to the presumption that the information on the webpage is not relevant to the litigation – the defendant has the opportunity to rebut this presumption by cross-examining her on her affidavit of documents if it so chooses.
  • The defendant had been at liberty to question the plaintiff about her Facebook account at her examination for discovery.
  • There was no evidence to support the defendant’s proposition that the plaintiff was likely to delete any relevant contents of her Facebook profile pending trial.

In considering the plaintiff’s privacy interests, Justice Price had regard to the Federal Privacy Commissioner’s Report of Findings into the Complaint filed by the Canadian Internet Policy and Public Interest Clinic (CIPPIC) Against Facebook Inc” under the Personal Information Protection and Electronic Documents Act, and concluded:

The Plaintiff has set her Facebook privacy settings to private and has restricted its content to 67 “friends”. She has not created her profile for the purpose of sharing it with the general public. Unless the Defendant establishes a legal entitlement to such information, the Plaintiff’s privacy interest in the information in her profile should be respected.

As a result of the foregoing, the Court concluded:

The Defendant has not established a basis for a preservation order in the present case, especially on an ex parte motion. The Defendant has not put forward evidence, beyond a bald assertion, that there is relevant evidence that needs to be preserved. It also has not put forward evidence beyond mere speculation to support a conclusion that an order is required on an ex parte basis to prevent the destruction of evidence after a notice of motion for production is given and pending the return of such a motion.

The Court did decide, however, that “[b]ecause Facebook is a relatively recent phenomenon and the disclosure obligations and remedies are still being articulated in relation to it”, the Court was prepared to grant the defendant a further opportunity to cross-examine the plaintiff on her affidavit of documents if it chose to do so.

Limitation Periods for Property Damage Losses in Canada

What is a Limitation Period?

All legal proceedings, including subrogated recovery actions, must be commenced within a certain period of time set out by legislation. The time period in which an action can be brought is called a limitation period. It is also sometimes called a prescription period. If an action is not brought within the applicable limitation period, the claim will be forever lost. Even the most meritorious subrogated claim will disappear because of the expiry of a limitation period.

What is the Purpose of a Limitation Period?

The essential purpose of a limitation period is to place a reasonable limit on the amount of time which a party may take to commence an action. This serves a number of important purposes:

  • It creates an incentive for plaintiffs to bring their lawsuits in a timely fashion.
  • It defines a period of time in which a defendant can know with certainty that it will be free of ancient obligations.
  • It prevents plaintiffs from bringing old claims in which evidence has been lost by the passage of time

When Does a Limitation Period Start to Run?

Each province has different rules about when a limitation period begins to run. For example, in some provinces, time will start to run as soon as the facts which give rise to the claim take place. In other cases, the limitation period may not begin to run until the plaintiff discovers that he or she has been wronged. In some cases, a limitation period may temporarily stop running while parties are attempting to reach a settlement agreement. A party’s conduct may also affect the running of a limitation period. Additionally, where a plaintiff is a minor or under a disability, the limitation period may not start to run until after that person reaches the age of majority or is represented by a litigation guardian.

Which Limitation Period Applies?

The limitation period that applies in a particular case is determined by a number of factors. Just as limitation periods vary from province to province, they may also vary depending on the nature of the subrogated claim or cause of action, or the subject matter of the claim. Furthermore, some actions are dealt with by federal law in which case there may be one single limitation period that applies across Canada. Limitation periods may also vary depending upon the identity of the party being sued. For example, different limitation periods may apply if an action is brought against a municipality or other government body. The applicable limitation period may also be affected by the identity of the plaintiff, for example, where the plaintiff is a minor or under a disability. Finally, in some provinces, but not all of them, parties can agree to a different limitation period than is set out in the legislation.

You will also notice that some provinces have a maximum time period, called an “ultimate limitation period”, after which time the claim will be barred, even if the person did not ever become aware of the circumstances giving rise to the claim. The ultimate limitation may be particularly significant in claims arising out of faulty construction or environmental contamination where a defendant’s wrongful conduct may often not be discovered for long periods of time  The following is intended as an educational overview of some of the general limitation periods that will apply in claims for property losses in Canada:

(NOTE: Depending on the circumstances, different limitation periods may apply, or additional notice requirements may be applicable. For example, claims involving assaults or intentional acts, claims against municipalities, claims against medical professionals may be subject to additional notice requirements AND shorter limitation periods. For this reason alone, you should always seek legal advice specific to your circumstances).

ALBERTA

BRITISH COLUMBIA

MANITOBA

NEW BRUNSWICK

  • General Limitation Period – 6 years commencing when the cause of action arises. Limitation of Actions Act, R.S. N.B. 1973, c. L-8, s. 9.
  • UPDATE:  As of May  1, 2010, there is a general limitation period of 2 years, and an ultimate limitation period of 15 years. Limitation of Actions Act, S.N.B. 2009, c. L-8.5.

NFLD. & LABRADOR

N.W.T.

NOVA SCOTIA

  • General Limitation Period – 6 years commencing when the cause of action arises. Limitation of Actions Act, R.S.N.S. 1989, c.258, s. 2(1)(e). However, within 4 years of expiry of general limitation period, court may disallow the limitation period, having regard to circumstances of the case – Listed are enumerated factors to consider including date of “discovery” of claim, Limitation of Actions Act, R.S.N.S. 1989, c.258, s. 3.
  • Note: A 2009 version of this Act has received royal assent but has not yet been proclaimed in force.

NUNAVUT

ONTARIO

  • General Limitation Period – 2 years commencing when the cause of action is discovered. Limitations Act, 2002, S.O. 2004, c. 31, ss. 4,5.
  • Ultimate Limitation Period – 15 years (commencing  from 2004 or when the cause of action arises, whichever is later). Limitations Act, 2002, S.O. 2004, c. 31, s. 15.
  • Transitional Rules: Apply if a cause of action arose before January 1, 2004 and a proceeding has not yet been commenced:  (1) Claim not “discovered” until after Jan 1, 2004, then 2 years from discovery, s. 24(5)(1); (2) Claim “discovered” before Jan 1, 2004, then 6 years from discovery, s. 24(5)(4); (3); If former limitation period expired before Jan 1, 2004, then no proceeding shall be commenced, s. 24(3).

P.E.I.

QUEBEC

SASKATCHEWAN

YUKON

Conclusion

Although it is important for subrogation professionals to be alert to some of the limitation periods which might commonly apply in property damage claims, the limitation period which finally applies in a given case can be a complex and difficult legal issue to determine and may require resort to both legislation and case law. Oftentimes, the seemingly obvious limitation period is not the correct one and in some cases, the correct limitation period may even be difficult for lawyers to identify or locate. The opinion of an experienced lawyer should always be obtained in order to ensure that a subrogated claim is not unintentionally forsaken.