Writ of Delivery

Seizure of Personal Property in Small Claims

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

3. Rule 20.05 of the Small Claims Court Rules, O.Reg. 258/98, provides as follows:

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.

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...”

12. Finally, the plaintiff’s motion completely fails to address what would happen to the underlying default judgment debt if the plaintiff were to recover possession of whatever personal property it has in mind. Would the judgment be satisfied? Would there be a credit against it? If so how much? Again, the writ of delivery is only a means to enforce a pre-existing order for delivery of personal property, as was held in the cases starting with Easy Home v. Rogalski, supra. It does not apply to enforcement of an order for a debt.