Order for Delivery of Personal Property - R.20 (SCSM)

O. Reg. 258/98: RULES OF THE SMALL CLAIMS COURT

20.05 (1) An order for the delivery of personal property may be enforced by a writ of delivery (Form 20B) issued by the clerk to a bailiff, on the request of the person in whose favour the order was made, supported by an affidavit of that person or someone acting on that person’s authority stating that the property has not been delivered. O. Reg. 258/98, r. 20.05 (1); O. Reg. 230/13, s. 16.

(2) If the property referred to in a writ of delivery cannot be found or taken by the bailiff, the person in whose favour the order was made may make a motion to the court for an order directing the bailiff to seize any other personal property of the person against whom the order was made. O. Reg. 258/98, r. 20.05 (2).

(3) Unless the court orders otherwise, the bailiff shall keep personal property seized under subrule (2) until the court makes a further order for its disposition. O. Reg. 258/98, r. 20.05 (3); O. Reg. 78/06, s. 42.

(4) The person in whose favour the order is made shall pay the bailiff’s storage costs, in advance and from time to time; if the person fails to do so, the seizure shall be deemed to be abandoned. O. Reg. 258/98, r. 20.05 (4).

Easyhome Ltd. v Hookey, 2016 CanLII 63651 (ON SCSM)

1. The plaintiff asks for a writ of delivery and “Authorization to use reasonable force to enter private dwelling [sic]”. The motion is dismissed for the following reasons.

2. The plaintiff has obtained a clerk’s default judgment dated August 2, 2016, for a debt of $9,033.74 plus interest and costs. This ex parte motion is an attempt to collect on that judgment and purports to invoke the writ of delivery. Given the fact that this plaintiff has generated the leading cases which demonstrate the misguided nature of this motion, and raises a point of practice in Small Claims Court, these reasons are provided.

4. As the plain wording of rule 20.05(1) states, the writ of delivery is a means to enforce an order for the delivery of personal property. In other words it only applies where an order for the delivery of personal property has been claimed and granted. That this is so has been confirmed in a number of cases starting with Easy Home v. Rogalski (2004), 46 C.P.C. (5h) 318 (Ont. Sm. Cl. Ct.). See also Easyhome Ltd. v. Geveart, [2007] O.J. No. 2025 (Sm. Cl. Ct.); NCR Leasing, Inc. v. Michano, [2008] O.J. No. (Sm. Cl. Ct.); Ever Fresh Direct Foods v. Schindler, [2011] O.J. No. 3634 (Sm. Cl. Ct.). Such orders are made under s. 23(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43, in an “action for the recovery of possession of personal property...”

5. In this case the plaintiff has a default judgment for a simple money debt. It does not have an order for the delivery of personal property and therefore has no right to a writ of delivery. Had it obtained such an order, the writ would be available as of right under rule 20.05(1) and would be issued by the clerk.

8. The request for “Authorization to use reasonable force to enter private dwelling” is particularly troubling. It is a basic rule of law that court orders should be clear and unambiguous. To whom is such authority to be given? Is the plaintiff seeking an order purporting to authorize the plaintiff’s own forces to enter a private dwelling by force and take possession of personal property items? There is plainly no jurisdiction for this court to make such an order. By its terms rule 20.05 provides for a writ of delivery to be enforced by a bailiff, meaning a person authorized under the Bailiffs Act, R.S.O. 1990, c. B.2. That is confirmed by the prescribed form of writ of delivery (Form 20B), which is directed to the bailiff of the particular Small Claims Court office.

9. There is no procedure by which the plaintiff’s own forces could be authorized to undertake self-help remedies which would otherwise be contrary to law, such as entering a dwelling by force and taking property by force. Accordingly there is no need nor any basis for this court to make an order relating to any potential force required in the course of an otherwise-authorized seizure of personal property.