Jun 21, 2024
Although Casey & Moss’s offices are in downtown Toronto, we represent clients throughout the province of Ontario (not to mention clients who live outside Ontario and abroad).
When a client first retains us to respond to or to start litigation, they often ask what Ontario city the litigation is going to proceed in. This is especially true if the client, the other parties, the incapable person, or the deceased’s assets are located in different cities across Ontario.
There are several considerations that go into a decision about where to start litigation in Ontario.
First, if our client has been brought into an already-ongoing court proceeding as a respondent or a defendant, we will generally agree to the jurisdiction of the litigation selected by the applicant or plaintiff. Most court appearances and hearings under an hour long continue to take place over Zoom. As a result, it is just as easy for us to appear in court in Toronto, Kingston, or Thunder Bay. We no longer have to travel to courthouses outside Toronto, unless we are appearing on long motions, application hearings, or trials. Mediations and cross-examinations can also take place remotely, especially if parties and lawyers are based in difference cities around the province. This makes it easy and cost-effective for us to represent clients involved in litigation outside Toronto.
If our client is commencing litigation, several considerations come into play when choosing where to bring the proceeding.
The Rules of Civil Procedure say that if there is no statute or rule requiring a proceeding to be commenced in a particular county, then the proceeding may be commenced at any court office in any county named in the originating process.
We often recommend that our clients start litigation in Toronto, even if they or the other parties aren’t located in Toronto, because Toronto is home to the Superior Court of Justice Estates list.
The Estates List is a specialized court in Toronto comprised of judges who hear proceedings exclusively involving issues of estate, trust and capacity law. Currently, there are four judges sitting on the Estates List. Each of these judges has extensive experience with estate litigation. The judges not only have familiarity with these types of proceedings, but court procedure on the Estates List is tailor-made for estate litigation. For example, we can book 15-minute scheduling appointments before an Estates List judge so that we can quickly and inexpensively get orders for production of documents like medical records, which is frequently one of the first steps in estate litigation. Another factor is that there is mandatory mediation for estate matters in Toronto, which can mean earlier settlement discussions and chances for resolution.
In our experience, if we bring a proceeding on the Estates List in Toronto, counsel in other cities rarely object or seek to have the proceeding transferred to a different courthouse. This is because of the expertise and efficiency of the Toronto Estates List, as well as the fact that counsel outside Toronto don’t have to travel to Toronto to attend in-person scheduling appointments, case conferences, short hearings, or mediations. All of this can be done over Zoom.
The decision about where to start litigation is something we discuss early on with our clients and is a decision we make together, based on what we think will be most efficient and cost-effective.
Cara Zacks
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Mar 15, 2024
In the process of enforcing a Judgement, debtors sometimes prove elusive and play hard to get, making the pursuit of what’s rightfully yours extra difficult. However, there is a simple but strategic move that might just turn the table around – garnishing the debtor’s bank account.
Step 1: Locate and Read the Cheque
To garnish the debtor’s bank account, your first move is to investigate the account details. Starting by combing through past financial transactions between the creditor and the debtor, particularly those involving cheque payments, can be the game-changer. If the debtor has made any payment by cheque, you can use the cheque as evidence to support your belief that the debtor holds bank account(s) at the financial institution. In case the original cheque is lost, don’t worry – your bank can provide transaction records, which will include an image of the cheque.
On the cheque, essential information such as the address of the debtor, the information of the financial institution (name and address), and the bank account information can be found.
The bank account details can be found within the string of numbers at the bottom of the cheque, including the 5-digit transit number which identifies the branch where the account was opened; the 3-digit financial institution code; and the 7 to 12-digit account number which specifies which bank account where the money will be withdrawn from. Please note that the cheque number at the top right corner might also be found at the bottom left corner.
In case where no payment has been made by the debtor, it is crucial to gather as much information about the debtor’s financial situation as possible. You should seek legal advice and conduct an Examination in Aid of Execution.
Step 2: Requisition for Garnishment
As per Rule 60.08 (4) of the Rules of Civil Procedure, the creditor shall file a Requisition for Garnishment (Form 60G), a copy of the Judgement, an Affidavit, Notice of Garnishment (Form 60H) and a blank Garnishee’s Statement with the registrar.
The Garnishee is a third party that holds property of the debtor that can be used to satisfy the debtor’s debt, in this case, is the financial institution holding an account for the debtor.
The information discovered from the cheque becomes the key to prepare the legal documents, such as the name and address of the financial institution, as well as the debtor’s bank account information which should be detailed in your Affidavit. You also need to calculate the principal owing amount as well as the post-judgement interest to-date. Check our previous blog post to see how to calculate post-judgement interest.
Two important notes: First, a Notice of Garnishment can only name one debtor and ONE Garnishee. If multiple entities own debt to the debtor, prepare separate Notices of Garnishment to each of the Garnishees. Secondly, the filing should be made where the court proceeding (resulting in the Judgement being enforced) was commenced, as the registrar will forward a copy of the issued Notice of Garnishment to the Sheriff where the debtor resides. You can find the Sheriff’s office address and district via the link here, provided by the WritFiling website.
Upon receiving the issued Notice of Garnishment, serve it with a blank Garnishee’s Statement to the Garnishee (the local branch of the financial institution); also serve it with a copy of the Affidavit on the debtor.
Step 3: Issuance of the Garnishment Cheque
The Garnishee is required to pay the funds in the debtor’s account to the Sheriff’s office within 10 days after being served with the Notice. This payment should be made by a bank draft payable to the Minister of Finance. Once the cheque is cleared, the Sheriff’s office will issue the cheque to the creditor or the creditor’s counsel.
In some special cases where the debtor’s account is jointly owned, the creditor will be notified by the Garnishee and must serve the co-owner a Notice to Co-owner of the Debt along with a copy of the Garnishee’s Statement. In these circumstances, the creditor should seek legal advice from a lawyer.
When your debtor plays hard to get, garnishing his or her bank accounts would be the strategic move to go!
Jennifer Jiang
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Aug 17, 2023
Have you ever been given a deadline by a litigation lawyer or by the civil court? Sometimes the deadline might have a specific end date like “September 1st, 2023”; other times you may be given a number of days like “within 7 days”, and you are left having to count calendar days. This may sound pretty straight forward but is not always as easy as 1, 2, 3…
When dealing with litigation timelines, there are specific rules to follow when it comes to counting. These rules can be found at Rule 3.01 of the Rules of Civil Procedure. Keep reading for a few tips and tricks.
Where does one start?
When counting, you do not count the initial or start date, but rather, the day after. Is that confusing? Let me break it down for you. If you receive a court order dated August 14th, 2023 and are given a deadline of 3 days, then you would begin counting as of August 15th (the day after the start date), thereby making August 15th day 1, August 16th would be day 2, and August 17th would be day 3 – your deadline!
Where does one land?
When finding your deadline, you need to pay attention to the day of the week that your deadline lands on. Using the same example above, let’s change our deadline from 3 days to 5 days. Remember that our court order was dated August 14, 2023. What happens when you count 5 days according to the Rules? You land on a Saturday. The Rules state that Saturdays and Sundays are “holidays”. What happens to your deadline if it lands on a holiday? Is the deadline null and void? Absolutely not. Your deadline gets moved to the next day that is not a holiday, and in our example, that would be Monday August 21st, 2023.
What day is next?
Another important thing to note about holidays – holidays shall not be counted if you are given a deadline of 7 days or less. A complete list of other “holidays” can be found at Rule 1.03(1) of the Rules. What happens when your counting runs into a holiday? If it’s 7 days or less you skip over the holidays. Looking at the same example one more time, if you have a deadline of 7 days from August 14th, the deadline would be August 23rd. We have counted each day and skipped over the holidays, Saturday and Sunday. Remember to watch out for civic and statutory holidays which can throw off your deadlines too.
When does it end???
Deadlines of more than 7 days become a little less complicated to compute as you include all calendar days, even holidays, when counting making things a little more straightforward. The only real complication with longer deadlines (20 days, 45 days, 75 days) is you may find yourself endlessly counting days and days, giving yourself more room for error. For long deadlines, I like to use an online day counter like this one. Remember to keep in mind that although you’re not skipping holidays when counting, you still need to be mindful of a deadline landing on a holiday and move your deadline to the next day that is not a holiday.
Where does the time go?
Do you have to keep an eye on the clock? Yes! You may be thinking that you have until midnight to submit, serve or file your documents, but that would make you late on your deadline. Your second guess might be 5p.m. That is of course the usual end of business time, but again, if you submit, serve or file your documents by 5p.m. you will also be late. The deadline to serve and file is actually 4p.m. If you play the stock market, you may be comfortable with the 4p.m. deadline. So just remember you need to serve, file and trade all by 4 p.m.
Thanks for reading and happy counting.
Lucy Goytisolo
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
