Scope of Authority (Bailiff)

Bailiffs Act, R.S.O. 1990, c. B.2

2 This Act does not apply to a person while acting as a bailiff under court process. R.S.O. 1990, c. B.2, s. 2.

3 No person, other than a person authorized to act as a bailiff under court process, shall act as a bailiff unless the person is appointed under this Act and is not a person described in clause 3.1 (b) or (c). 2004, c. 19, s. 2 (4).

Courts of Justice Act, R.S.O. 1990, c. C.43

141 (1) Unless an Act provides otherwise, orders of a court arising out of a civil proceeding and enforceable in Ontario shall be directed to a sheriff for enforcement.

(2) A sheriff who believes that the execution of an order may give rise to a breach of the peace may require a police officer to accompany the sheriff and assist in the execution of the order. R.S.O. 1990, c. C.43, s. 141.

144 Warrants of committal, warrants for arrest and any other orders requiring persons to be apprehended or taken into custody shall be directed to police officers for enforcement. R.S.O. 1990, c. C.43, s. 144.

147 (1) The courts shall have such seals as are approved by the Attorney General.

(2) Every document issued out of a court in a civil proceeding shall bear the seal of the court. R.S.O. 1990, c. C.43, s. 147.

Costs of Distress Act, R.S.O. 1990, c. C.41

6 (1) A person who makes a distress shall give a statement in writing signed by the person of the demand and of the costs and expenses of the distress to the person on whose goods the distress was made and a person who makes a seizure under a chattel mortgage or for default in payment of an instalment of principal or interest secured by an instrument under the terms of which the vendor retains the right to take possession of a chattel sold by the vendor for default in payment of an instalment of principal or interest shall give to the person in possession of the goods seized a statement in writing signed by the person making the seizure of the demand and of the costs charged in respect of the seizure and subsequent proceedings. R.S.O. 1990, c. C.41, s. 6 (1).

(2) The person whose goods are distrained or seized or the person authorizing the distress or seizure or any other person interested, upon giving two days notice in writing, may have the costs and expenses of the bailiff or other person making the distress or seizure assessed by the local registrar of the Superior Court of Justice for the area in which the distress or seizure was made. R.S.O. 1990, c. C.41, s. 6 (2); 2006, c. 19, Sched. C, s. 1 (1).

(3) The bailiff or person making the distress or seizure shall furnish the registrar with a statement of the costs and expenses for assessment at the time mentioned in the notice or at such other time as the registrar directs, and, in default of so doing, is not entitled to any costs or expenses. R.S.O. 1990, c. C.41, s. 6 (3).

Paccar Financial Services Ltd. v. 2026125 Ontario Limited, 2014 ONSC 456 (CanLII)

[11] That provision sets forth rules relating to motions seeking interim possession of personal property. It carries into effect s. 104(1) of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (the “CJA”). That subsection provides:

In an action in which the recovery of possession of personal property is claimed and it is alleged that the property,

(a) was unlawfully taken from the possession of the plaintiff; or

(b) is unlawfully detained by the defendant,

the court, on motion, may make an interim order for recovery of possession of the property.

[12] Rule 44 establishes a number of requirements. For example, an affidavit filed in support of a motion for interim recovery of personal property must contain listed information. Rule 44.01(2) addresses the issue of service in these terms:

The notice of motion shall be served on the defendant unless the court is satisfied that there is reason to believe that the defendant may improperly attempt to prevent recovery of possession of the property or that, for any other sufficient reason, the order should be made without notice.

[13] If a motion is made under Rule 44 without notice, the court may make an interim order. Rule 44.03(2) provides in part:

On a motion for an interim order for the recovery of possession of personal property made without notice to the defendant, the court may,

(a)…direct the sheriff to take and detain the property for a period of ten days after service of the interim order on the defendant before giving it to the plaintiff… [Italics added]

[14] I noted that the draft order provided by Paccar’s counsel contained no temporal limitation. It did not comply with Rule 44 and importantly if signed, completely obliterated the rights of a party given no voice.

[15] Furthermore, rule 44.03(2) clearly contemplates that an order for interim recovery of personal property will be enforced by the sheriff.[2] That comes as no surprise. Section 141(1) of the CJA provides that the court’s orders arising out of a civil proceeding shall be directed to the sheriff for enforcement in Ontario unless a statute provides otherwise.

[16] The draft order contemplated enforcement by a bailiff retained by Paccar. That, too, is not in accordance with the CJA or rule 44.

[59] It should be clear from this endorsement that my concerns with Paccar’s motion abound. The bar on a motion without notice is a high one. Paccar’s material falls far below the required – and expected – standard.

[60] In the context of an application pursuant to s. 67 of the PPSA, if satisfied with the materials, I would have considered granting an interim order on motion:

a) on proper notice to 125 and any third party known by Paccar to have an interest in the leased items;

b) alternatively and if satisfied that the applicable test was met, on abridged or perhaps even no notice to one, some or all of the persons mentioned in the preceding subparagraph;[11]

c) that complied with Rule 44 unless satisfied that Paccar was entitled, on an interim basis, to the court’s assistance in exercising the self-help remedy it seeks;

d) if made without notice, that required Paccar to immediately serve the order and all of the materials filed on the motion on all affected persons as rule 37.07(5) requires;

e) if made without notice, that provided for a specified return date ideally before me. Knowing that the justice who made the initial order will remain seized on the subsequent return date should serve as additional encouragement to the moving party to make full and frank disclosure of all material facts as rule 39.01(6) requires; and

f) that preserved the leased items pending that further return date.

[61] This is not such a case. Whirlwind justice is rarely just. Paccar’s current motion is flawed in every respect. It is dismissed without prejudice to the right of Paccar to start afresh.

Emerson v. Ontario (Registrar of Bailiffs), 2009 CanLII 24226 (ON SCDC)

[4] Ms. V.M. and Ms. J.F. were engaged in a business enterprise that used equipment owned by or leased to J.F. The equipment was located at commercial premises that had been leased in the name of V.M.

[5] When the parties decided to terminate their business relationship, a dispute arose over the equipment. While V.M. was out of the country, J.F. used her key to the premises at night and removed a considerable amount of equipment. V.M.’s daughter, who was managing the business in her mother’s absence, was worried that J.F. would return to take out all of the equipment necessary to run the business and, therefore, she had the locks changed.

[6] J.F. received advice from her lawyer about retrieving the balance of the equipment. He advised her that she was within her rights to invoke a self-help remedy and to enter the premises and remove her equipment. She consulted with the appellant for this purpose and he recommended that she obtain a second legal opinion. She sought a second opinion from another lawyer who confirmed that, as going through the court system was a lengthy process, a self-help remedy was lawful and that she had the right to enter the premises and retrieve her equipment, by picking the locks if necessary.

[12] These conclusions by the Tribunal are premised on the fact that J.F. was engaged in an unlawful entry of the premises.

[13] However, such a conclusion runs counter to the Tribunal’s factual findings as to the nature of the business relationship between J.F. and V.M. At page 20, the Tribunal made the following finding:

The Tribunal accepts JF’s evidence relating to the nature of her relationship with VM in preference to the evidence of VM, which contained serious unexplained contradictions noted above. In the Tribunal’s view, there is no doubt that the equipment in question in this complaint belonged to JF at the time VM joined her as a partner or affiliate in business. Further, VM led no convincing evidence that she somehow acquired ownership of the equipment as a result of her monthly payments to JF. The Tribunal thus finds that, as in the JW Complaint, the Applicant’s client, JF, had a sufficient proprietary right in the personal property in question to justify the exercise of a right to recapture the goods at common law. The only question is whether that right was exercised legally or whether the changing of the lock on the complainant’s business premises involved more force than allowed by the common law. [Emphasis added.]

[17] Having accepted J.F.’s evidence, such a conclusion is not reasonable. A person has the right to “break in” to his or her own premises.

[18] Given that what J.F. did was lawful, there was then no basis for the Tribunal to conclude that the appellant’s participation in J.F.’s picking the lock and entering the premises demonstrates a failure to act responsibly as a bailiff.