Examination in Aid of Execution (Evading Service)

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Date Retrieved:	2024-04-29
CLNP Page ID:	2310
Page Categories:	Legal Principles
Citation:	Examination in Aid of Execution (Evading Service), CLNP 2310, <https://rvt.link/9t>, retrieved on 2024-04-29
Editor:	Sharvey
Last Updated:	2023/11/24

Zavahir v. Goncalo, 2021 ONSC 8159 (CanLII)

[5] As for Angelo Goncalo, he failed to appear at the examination and at now four consecutive court appearances. Plaintiffs’ counsel has advised that he generally attempts to evade service of process, but that he has in fact been served each time after some effort by the Plaintiffs’ process server.

Harbouredge Commercial Finance v. Wong, 2020 ONSC 3540 (CanLII)

8. Under Rule 60.11 (2) of the Rules of Civil Procedure (“RCP”), the notice of motion for a contempt motion “…shall be served personally on the person against whom a contempt motion is sought, and not by an alternative to personal service, unless the court orders otherwise.”

9. While there are cases in which orders of substituted service of a notice of motion seeking a contempt order have been granted (see, for example, Nelson Barbados Group Ltd. v. Cox, 2010 ONSC 569), no case brought to my attention examines the exact test for such relief. In Nelson Barbados, for example, Shaughnessy J. ordered substituted service of a notice of motion seeking a contempt order after finding that the circumstances before him were exceptional. He found both that the defendant was attempting to evade service and that “…there are no other steps that can be taken to locate him…”

10. Ms. Andriesson submits that the test for substituted service on a contempt motion should be the same as in any other court process. That test, under R. 16.04(1), applies broadly. That test is whether “…it appears to the court that it is impractical for any reason to effect prompt service of an originating process or other document required to be served personally or by an alternative to personal service under these rules …or, where necessary in the interest of justice [the court may] dispense with service.” [Emphasis added]

11. The highlighted wording of R. 16.04(1) demonstrates the extent to which that subrule is of general application to all documents that require personal service under the RCP. There is no exception for notices of motion seeking a contempt order.

12. However what is unique about contempt motions is their seriousness. Despite their availability in civil matters such as this, they are quasi-criminal in nature (see Carey v. Laiken, 2015 SCC 17 (CanLII), [2015] S.C.J. No. 17 at para. 42). As the Ontario Court of Appeal wrote in Chiang (Trustee of) v. Chiang, 2009 ONCA 3:

[11] In civil contempt, the court's emphasis is less about punishment and more about coercion -- attempting to obtain compliance with the court's order. Still, civil contempt bears the imprint of the criminal law. Civil contempt must be made out to the criminal standard of proof beyond a reasonable doubt. And, a person found in civil contempt of court may be committed to jail or face any other sanction available for a criminal offence, such as a fine or community service

13. Thus, while the test for substituted of a contempt notice of motion may appear to be the same as that for an ordinary court process, the court must apply very close scrutiny to the request. Further, it may only grant such an order in the clearest cases, where it is a last resort and in the interests of justice. That requirement is in line with the comments of the Supreme Court of Canada in Carey v. Laiken at para. 36 that the contempt power should be exercised "cautiously and with great restraint" as "an enforcement power of last rather than first resort" (see also: Chong v. Donnelly, 2019 ONCA 799 at paras. 8-10).