Enforcing Your Tribunal Order or Settlement

If your application goes to a hearing the Human Rights Tribunal of Ontario (Tribunal) will give a written decision. The decision declares who wins the application and contains the reasons why the Tribunal decided as it did. It may also order a number of remedies including the payment of money (also called damages) and/or public interest remedies. These remedies are set out in the section of the decision called the Order.

If your application does not go to a hearing, but instead settles, you will sign a document called Minutes of Settlement. This document will set out the specific terms and conditions that you have agreed to settle for. This often occurs at the mediation stage of the Tribunal process.

In either case – whether your application comes to an end by a Tribunal decision or by minutes of settlement – it is commonly thought that the Applicant will just receive their remedies from the Respondent and that is the end of the matter. Unfortunately, that is not always the case. Sometimes, the order or minutes of settlement is just the beginning of a long process to get the Respondent to do what they are supposed to do. If the Respondent does not voluntarily comply with the Tribunal order or minutes of settlement then you will need to know how to try to enforce the order or minutes of settlement.

As will be seen below, there are different procedures that may be available for enforcement depending on whether you have a Tribunal order or minutes of settlement.

Also, the procedure you may adopt will vary depending on whether you are seeking enforcement of your Tribunal order in the Small Claims Court Rule 20 – Enforcement of Orders or the Ontario Superior Court of Justice Rule 60 – Enforcement of Orders. See below at the section called “How do I decide whether to enforce in the Small Claims Court or in the Ontario Superior Court of Justice?”

The Respondent is supposed to comply with the Tribunal order or minutes of settlement within a reasonable period of time. Sometimes the order or minutes of settlement gives the Respondent a specific deadline to do some act in order to comply with the order or minutes of settlement, but if it does not, the “reasonable” length of time will depend on the circumstances of the case.

The Tribunal does not, in the great majority of cases, assist with the enforcement of the Tribunal order. In order to understand when the Tribunal may be able to assist a distinction must be made between the main types of remedies that the Tribunal can order – monetary remedies and non-monetary remedies (or public interest remedies).

Monetary remedies
If the Tribunal orders that money is to be paid by the Respondent to the Applicant, the Tribunal cannot assist. Collecting money is not the Tribunal’s responsibility and a successful Applicant does not simply “pick up a cheque” at the Tribunal office.

If the Respondent against whom an order has been made (the debtor) does not voluntarily pay, it is up to the Applicant – the person seeking to get paid (the creditor) – to enforce the order or minutes of settlement and collect the money.

Non-monetary remedies
In some cases, however, the Tribunal may decide to remain seized of the implementation of certain non-monetary remedies in the order. For example, in Dixon v. 930187 Ontario 2010 HRTO 256, available at the Canadian Legal Information Institute web site, the Tribunal ordered several non-monetary remedies, including ordering that the Respondent shall offer the next available apartment on the first floor to the Applicant, that the Respondent shall ensure that the front and back doors and entryways of the apartment building are accessible to people in wheelchairs, and that the Respondent shall engage a consultant trainer on human rights issues to undertake a training course for its managerial staff on anti-discrimination practices relevant to tenants.

In the decision, the Tribunal expressly noted that it remained seized (i.e., remained in control of) in the event that issues arose concerning the implementation of its order. This meant that the Applicant could contact the Tribunal in the event there was noncompliance by the Respondent with those terms of the order.

You can start enforcement steps immediately after the Tribunal order is given. The best place to start is with a written request to the debtor for payment. You can send a letter asking for prompt payment. This is sometimes referred to as a demand letter. Be sure to include the address where the payment can be made.

Set a reasonable deadline taking into account whether the payment will likely arrive by mail and any other factors or circumstances that you may be aware of. You should keep a record of any payments you receive.

The Code provides that where a settlement of an application is made under section 34 or 35 of the Code and is in writing and is signed by the parties, then any party who believes that another party has contravened the settlement may make an application to the Tribunal under section 45.9(3) for an order under section 45.9(8) by filing an Application for Contravention of Settlement (Form 18).

This application must be made within six (6) months after the contravention or, if there was a series of contraventions, within six (6) months after the last contravention. You also may apply after this time if the Tribunal permits it but it is better not to miss the six (6) month deadline. If you file late, the Tribunal will consider whether the delay was incurred in good faith and whether substantial prejudice will result to any person affected by the delay. You should be aware that it can be difficult to obtain an extension of time to file from the Tribunal and should make every effort to file on time.

After the application is heard, if the Tribunal determines that a party has breached the settlement, then it may make any order that it considers appropriate to remedy the breach.

If the minutes of settlement were made outside the Tribunal process (for example, you make an agreement before the application is filed at the Tribunal) then you will not be able to enforce the agreement at the Tribunal. Section 45.9 of the Code only relates to applications that are settled under the Tribunal process. Settlements that are made by the parties without a Tribunal application under section 34 or 35 are not within the Tribunal’s jurisdiction. The Tribunal would not have the power to assist a party who later claimed that there was a contravention of the settlement.

You should obtain legal advice if you are considering resolving a matter before an application is filed because, if there is a dispute later about whether the agreement was breached, then it may be very difficult to try and enforce your agreement if the Tribunal process is unavailable to you.

If your letter asking for payment is unsuccessful, then you will have to take other steps to enforce your order. In order for you to collect, the Respondent would have to have one of the following:

• Money
• Other assets that can be seized or sold by a Sheriff
• Any money owing to them by a third party (e.g. bank account, employment income) that can be garnished

Often you may not have much information about the Respondent’s assets or ability to pay. If you do not know where the Respondent banks, what assets they have, or where they may work, you could begin by requesting an examination hearing (this is also referred to as a judgment debtor examination or an examination in aid of execution).

You and the person being examined (usually the debtor) must attend the examination hearing. Lawyers or agents may also attend. The purpose of an examination hearing is to give you information about all of the Respondent’s financial information (e.g. assets, employment, ownership of property such as motor vehicles or land, and bank accounts). Once you have this information, you will be in a position to take effective steps to enforce your order.

Enforcement takes place through the courts, not the Tribunal. There are two courts that may be involved: Small Claims Court and the Superior Court of Justice. As of January 1, 2010, the Small Claims Court has a monetary limit of $35,000 (Canadian). For amounts owing over the $35,000 Small Claims Court limit, you will need to enforce your order at the Ontario Superior Court of Justice.

The Small Claims Court is a branch of the Ontario Superior Court of Justice. If you are enforcing your Tribunal order in the Small Claims Court there is a very useful guidebook called After Judgment: Guide to Getting Results that sets out all the enforcement procedures that are available at Small Claims Court.

To obtain the address of the Small Claims Court or Ontario Superior Court of Justice, you can visit the Attorney General web site.

If your order is for more than $35,000, the appropriate court for enforcement is the Superior Court of Justice. Court forms are available.

Unless you are eligible for a fee waiver (see below), then, in general, enforcing your order will not be free of charge. Even if you do not use a lawyer, you will have to pay court fees (e.g. to issue a notice of examination, a notice of garnishment or a writ of seizure and sale). Although some of the fees that you pay to the courts are added to the amount that is owed to you, you will have to pay those fees initially and you will not be repaid until you recover from the Respondent and the enforcement process is completed.

Click here for information about the fees at the Small Claims Court.

Click here or here for information about the fees at the Ontario Superior Court of Justice.

Note: You may be eligible for a fee waiver. The fee waiver procedure is for persons who might otherwise be denied access to justice because of their financial circumstances. Click here for information about the fee waiver process is available.

First you must file a certified copy of the order at the Small Claims Court or the Ontario Superior Court of Justice. In many cases, the Small Claims Court will be the place to go because the Tribunal’s order will be for $35,000 or less.

There are two (2) main methods of enforcing your order, whether you are enforcing in the Small Claims Court or the Ontario Superior Court of Justice:

• Garnishment
• Writ of Seizure and Sale (Personal Property or Land) – Small Claims Court and Writ of Seizure and Sale – Superior Court of Justice

Garnishment
A garnishment is a demand for payment to you of money that is otherwise owed to the Respondent by a third party (the garnishee). Most often, people garnish wages or bank accounts. Wage garnishment involves the process of notifying an employer who is then required to deduct money from an employee’s monetary compensation (including salary). Bank garnishment involves notification to a bank and the money being turned over to a sheriff. In the Superior Court of Justice, garnishment proceedings are governed by Rule 60.08 of the Rules of Civil Procedure.

Note: You should be aware that there are restrictions on the amount of wages that can be garnished. Also, there are some exemptions from garnishments such as employment insurance, social assistance and pension payments, even if these funds are in a bank account.

Writs of Seizure and Sale
A writ of seizure and sale is a document filed with a Sheriff’s office. It gives notice to third parties that the owner of property has an outstanding court ordered debt. The writ document acts as a first step towards instructing the sheriff having authority to seize a portion of the debtor’s property, which can be sold to satisfy the amount of the judgment. The second step is when you actually direct the Sheriff to physically seize personal property or land.

Any writs that you may obtain at Small Claims Court (Writ of Seizure and Sale for Personal Property or for Land) or the Ontario Superior Court of Justice (Writ of Seizure and Sale) will only deal with the monetary portions of the order. The costs of this procedure can be relatively high. It is a good idea to confirm beforehand whether the debtor has any goods worth seizing and selling.

A. Writs of Seizure and Sale (Small Claims Court)
i. of Personal Property

A creditor can request that specific personal possessions belonging to the debtor be taken and sold at public auction so that the money can be used to pay the debt. A Writ of Seizure and Sale of Personal Property against the debtor is good for six (6) years and may be renewed before it expires for another six (6) years.

ii. of Land

A creditor may file a Writ of Seizure and Sale of Land in any county or district where the debtor may own land (such as a house). This writ has the effect of encumbering (i.e., to burden with debts or legal claims) any land owned in the county or district where the writ is filed. This can make it difficult for the debtor to sell or mortgage the land until the debt is paid.

To determine whether the debtor owns land you can do a name search at the land registry office or land titles office located in the area where you think the debtor may own property. You can look at the Service Ontario website for a list of land titles/registry offices.

A Writ of Seizure and Sale of Land against the debtor is good for six (6) years and may be renewed before it expires for another six (6) years.

B. Writ of Seizure and Sale (Superior Court of Justice)
As above with the Writ of Seizure and Sale in Small Claims Court, this writ may be used against both real and personal property. In the case of land, it also has the effect of encumbering any land owned in the in the county or district where the writ is filed. This can make it difficult for the debtor to sell or mortgage the land until the debt is paid.

A Writ of Seizure and Sale is issued by the court on the receipt of an order and a requisition setting out the amounts owing. The writ itself may be enforced by filing a direction to enforce with the Sheriff. For further details see Rule 60.07 of the Rules of Civil Procedure

A Writ of Seizure and Sale is good for six (6) years and may be renewed. It is up to you, as the creditor, to ensure that you renew the Writ of Seizure and Sale prior to the expiry date of the six (6) years in order to maintain your priority.