



COURT OF APPEAL FOR ONTARIO

CITATION: Achtem v. Boese, 2021 ONCA 284

DATE: 20210504

DOCKET: C68744

Huscroft, Nordheimer and Harvison Young JJ.A.

BETWEEN

Neil Michael Achtem

Applicant (Appellant)

and

Katrina Rose Boese

Respondent (Respondent)

Derek M. Sinko, for the appellant

Matthew J. Lambert, for the respondent

Heard: April 26, 2021 by video conference

On appeal from the order of Justice R. John Harper of the
    Superior Court of Justice, dated September 18, 2020.

REASONS FOR DECISION

[1]

The appellant, Mr. Achtem, obtained an order in the Supreme Court of
    British Columbia against the respondent, Ms. Boese, on August 10, 2009. Mr.
    Achtem obtained an order from the Ontario Superior Court of Justice on
    September 19, 2011, which registered the order from British Columbia as an
    Ontario judgment. Mr. Achtem has received some payment on the judgments, but
    there is still $333,717.50 that remains outstanding.

[2]

Ms. Boese owns two properties in Brantford, Ontario. She resides in one property
    and rents out the other. In July 2012, Mr. Achtems Ontario lawyer, Mr. Cohen,
    advised Mr. Achtem that any further expenditure of time or effort would not
    recover anything, given the likely value of the properties and Ms. Boeses
    disability income, which would not be garnishable. On August 15, 2012, Mr. Cohen
    sent a letter to Ms. Boese inquiring for the last time on a voluntary basis about
    her income and the income and expenses of the properties she owns, and threatening
    enforcement proceedings if she did not provide the information voluntarily. Mr.
    Achtem did not pursue further action to enforce because he thought that there
    was little equity in Ms. Boeses properties. There was no further communication
    with Ms. Boese after that letter.

[3]

Mr. Achtem did not issue a writ of seizure and sale within six years of
    obtaining the Ontario order. In March 2018, Mr. Achtem was advised by his
    British Columbia lawyer that the British Columbia order would expire soon. At
    that point, Mr. Achtem reassessed the options available to him. He served a
    motion record on Ms. Boese on October 29, 2018, for an order granting leave to
    issue a writ of seizure and sale.

[4]

The motion judge referred to r. 60.07 of the
Rules of Civil
    Procedure
, R.R.O. 1990, Reg. 194. Judgment creditors may issue writs of
    seizure and sale as of right if less than six years have elapsed from the date
    of the judgment. Under r. 60.07(2), however, if six years or more have elapsed
    since the date of the order, leave of the court is required to issue a writ of
    seizure and sale. He observed that a very low evidentiary threshold applies to
    a judgment creditor who requests leave and that it is a rare case where a
    judgment creditor cannot meet the test. He cited the test for leave to file a
    writ, which is the same as the test for granting leave to issue a notice of
    garnishment under r. 60.08(2), from
Royal Bank of Canada v. Correia
, 2006
    CanLII 26976 (Ont. S.C. (Master)):

[W]hen a plaintiff seeks leave
    under rule 60.08(2) to issue a notice of garnishment more than six years after
    the date of judgment, he must adduce evidence explaining the delay such [that] the
    court may conclude that the plaintiff has not waived its rights under the
    judgment or otherwise acquiesced in non-payment of the judgment. The defendant
    may raise other grounds to convince the court that it would be inequitable to
    enforce the claim. For example the defendant could demonstrate that he has
    relied to his detriment or changed his financial position in reliance on
    reasonably
perceived
acquiescence resulting from the delay. Of course
    the onus would be on the defendant to adduce evidence of such reliance and
    detriment. [Emphasis in original.]

[5]

The motion judge found that Mr. Achtem did not provide evidence to
    explain the delay, other than his admission that he did not take action as he
    felt there was little value in any of the properties that would make it worth
    his while to pursue his enforcement rights. The motion judge noted that this
    went to the inference that Mr. Achtem was waiving his rights precisely because
    it would not be worth his cost to pursue his rights.

[6]

The motion judge also referred to Ms. Boeses evidence that she had
    relied on the lack of enforcement by Mr. Achtem by changing her financial
    position, including incurring new debts and financing secured by her
    properties, not declaring bankruptcy, and managing her properties differently,
    especially her rental property where she completed renovations. The motion judge
    found that Ms. Boese did rely on the lack of enforcement and that if Mr. Achtem
    had diligently pursued his rights, Ms. Boese could have had financial options
    other than maintaining her properties, such as entering into proposals or
    bankruptcy.

[7]

The motion judge accordingly dismissed Mr. Achtems motion for leave to
    file a writ. Mr. Achtem appeals the motion judges order.

A.

Discussion

[8]

The standard of review, as the parties agree, is palpable and overriding
    error.

[9]

The parties also agree that the motion judge set out the correct test
    for leave to issue a writ of seizure and sale. The party seeking leave is
    required to explain the delay such that the court may conclude that the
    judgment creditor has not waived its rights under the judgment or otherwise
    acquiesced in non-payment of the judgment.

[10]

Mr.
    Achtem submits that the motion judge made findings and drew inferences that
    were not reasonable and not supported by the evidence regarding both his
    explanation for the delay and whether it would be inequitable to enforce the order.
    Ms. Boese submits that the motion judges findings were a result of assessing
    the evidence as a whole and weighing the evidence, such that his findings and conclusions
    do not amount to palpable and overriding error.

(1)

The trial judge erred in inferring waiver

[11]

Mr.
    Achtem argues first that the motion judge fell into error in inferring waiver
    on the evidence before him. We agree.

[12]

To
    begin, there was no evidence of waiver other than the delay itself, which was
    relatively short. Mr. Achtems motion record was served on Ms. Boese in October
    2018, some 13 months after the expiration of the 6-year period in September
    2017. Both parties relied on various cases in support of their respective
    arguments about the sufficiency or insufficiency of the delay in this case. We
    are satisfied that these cases do not support the proposition that a delay of
    this length, without more, can constitute a waiver in the presence of a
    plausible explanation for the delay. Mr. Achtem and Ms. Boese had never met and
    never communicated except through lawyers. Ms. Boese, notably, does not allege
    any words or conduct on the part of Mr. Achtem or his lawyers that suggested
    that he was waiving his right to enforce his judgment.

[13]

Second,
    Mr. Achtem provided an explanation for the delay, which was that he believed
    there to be little or no equity in the Ontario properties owned by Ms. Boese at
    the time he obtained his judgment. In 2012, communication with Mr. Cohen
    indicated that this was likely still the case, and that it would be a waste of
    time and money to try to enforce the judgment at that time. Mr. Cohen thought
    that the properties were either underwater (mortgages exceed value) or are so
    close that a forced sale  would be an expensive waste and that the properties
    would be almost impossible to market. There was no evidence before the motion
    judge to suggest that this was anything other than a
bona fide
explanation for the delay.

[14]

The
    motion judges inference of waiver was palpably unjustified on the record
    before him. The appellant had an outstanding judgment of around $333,000. As the
    motion judge himself observed, the evidentiary threshold of providing an
    explanation for the delay is low: at para. 22. In finding that Mr. Achtems explanation
    that it was not worth his while to enforce his judgment earlier constituted a
    waiver of his right to enforce, the motion judge effectively imposed a much
    higher threshold. Further, the motion judge stated that Mr. Achtems explanation
    for the delay went more to the inference that he was waiving his rights
    precisely because it would not be worth his cost to pursue his rights. This
    read into Mr. Achtems explanation an intention to waive his rights for all
    time that is not supported by any evidence: at para. 26.

[15]

In
    addition, the conclusion that Mr. Achtem, on these facts, waived his right to enforce
    his judgment, is contrary to the principles forming the context of motions for
    leave to issue writs. First, there is no limitation period on the enforcement of
    judgments. Second, as the motion judge himself noted, it would be a rare case
    where the party seeking leave is unable to meet the test by sufficiently explaining
    the delay:
Adelaide Capital Corporation v. 412259 Ontario Ltd
., 2006
    CanLII 34725 (Ont. S.C.), at para. 13. In the presence of Mr. Achtems explanation,
    and in the absence of evidence other than this relatively short delay from
    which any waiver could be inferred, the motion judge fell into palpable and
    overriding error in concluding that the appellant had waived his right to
    enforce his $333,000 judgment against the respondent.

(2)

The trial judge erred in finding that it would be inequitable to enforce
    the judgment

[16]

Ms.
    Boese submits that the motion judge correctly found that it would be
    inequitable to grant the motion to file the writ in these circumstances for two
    reasons. First, she reasonably believed, based on the delay, and not having
    heard from the appellant for over six years, that he was not pursuing the
    enforcement of the judgment. Second, she argues that she detrimentally relied
    on this understanding by choosing to repair and maintain her homes and in the
    manner in which she conducted her finances.

[17]

We
    disagree. First, we do not agree with Ms. Boese that it was reasonable to
    believe, based only on the absence of communication from Mr. Achtem, that he
    had waived his right to enforce his judgment at some point. This was a
    significant amount of money. Ms. Boese acknowledged that she had never met or
    spoken to Mr. Achtem. There is nothing in the evidence that could support a
    reasonable belief on her part that Mr. Achtem would not enforce his judgment. As
    already discussed, we do not accept that the mere passage of this period of
    time, given his explanation and the absence of any suggestion from him that he
    would not enforce, could constitute the basis of a reasonable belief that he
    was waiving his rights for all time.

[18]

Nor
    do we agree that Ms. Boese detrimentally relied on any reasonable belief. All
    the expenses to which she refers are, as Mr. Achtem points out, expenses that were
    necessary to continue earning the rental income from one of her two properties,
    such as painting of units for new tenants, a new roof at one point, and on one
    occasion, a new furnace. Her suggestion that she would have taken other steps
    such as declaring bankruptcy is not persuasive. There is no evidence that she
    has ever taken any steps to declare bankruptcy, including during the period
    before the expiration of the six-year period. The conclusion that the
    respondent detrimentally relied on her belief that the appellant had waived his
    right to enforce his judgment for all time by not enforcing it earlier was a
    palpable and overriding error that warrants the intervention of this court.

B.

Disposition

[19]

For
    the foregoing reasons, the appeal is allowed. The order below is set aside, and
    leave is granted to the appellant to issue a writ of seizure and sale against
    the respondent as sought. All inclusive costs of $8,000, as agreed, are payable
    by the respondent to the appellant.

Grant Huscroft J.A.


I.V.B.
    Nordheimer J.A. 

A.
    Harvison Young J.A.


