After years of litigation and stress, you finally get your day in court and a decision is made in your favour. But is this really success if you can’t collect against the wrongdoer? In civil claims against perpetrators of sexual violence, success for a survivor usually includes being financially compensated for the harms done. However, individual defendants may try to evade judgment through unlawful conveyances of property, asset transfers, or even filing for bankruptcy, making enforcement difficult for the successful plaintiff.
Collecting on a judgment debt can require a variety of creative tactics to be deployed by a plaintiff’s lawyer, including examinations in aid of execution, writs of seizure and sale or possession, garnishment, or moving to set aside a fraudulent conveyance. It’s important for plaintiff and defence lawyers to be aware of the provisions of the Bankruptcy and Insolvency Act, which ensure a bankrupt cannot escape a judgment for sexual assault, as discussed .
In urgent situations, interim relief, such as a Mareva injunction (an order preventing a defendant from disposing of their assets to deprive a successful plaintiff of compensation) should also be considered. This was recently the case in C.A.O. v. Williamson, 2020 ONSC 6793, whereby my colleague Elizabeth Grace and I successfully stopped a defendant’s unlawful dissipation of an asset in the face of a judgment against him for punitive damages.
In June 2020, Justice Salmers granted judgment in favour of the plaintiff against her former music teacher/band leader, Royce Williamson, for historical sexual assaults: C.O. v. Williamson, 2020 ONSC 3874. As a result, the plaintiff was entitled to recover damages against not only the school board but also Williamson.
In October 2020, as a result of steps taken by us to enforce the judgment debt against Williamson, Williamson’s lawyer advised that Williamson planned to dissipate his only known asset, an RRSP. In response, we moved quickly and on an ex parte basis (i.e., without prior notice to Williamson) for an interim interlocutory order in the form of a Mareva injunction to restrain Williamson from disposing of his RRSP. Justice Edwards granted the emergency order, finding that it was “beyond controversy that Williamson would have collapsed his RRSP and placed those funds beyond the reach of the Plaintiff and the court.” Justice Edwards also fixed costs of the motion against Williamson in the amount of $1000.
In coming to his decision, Justice Edwards laid out the well-known requirements to succeed on such a motion, which, paraphrased, require a plaintiff to:
- a) disclose all information relevant to a court’s ruling;
- b) provide sufficient detail about her claim, the basis for it, and any arguments made against it by the defendant;
- c) provide some proof that there is a risk of the assets in question being removed from the jurisdiction or dissipated;
- d) undertake (i.e., promise) to pay for any harm caused by the injunction if it turns out to have been unjustified; and
- e) provide some proof that the defendant has the assets in question and they are in the court’s jurisdiction.
Importantly, Justice Edwards did away with the requirement for the Plaintiff to give an undertaking to pay Williamson damages, relying on the Ontario Court of Appeal’s decision in Business Development Bank of Canada v. Aventura II Properties Inc., and on the unchallenged findings and judgment of Justice Salmers against Williamson. This means an undertaking will not always be required when the moving party has a judgment in their favour. Justice Edwards emphasized that “it would be grossly unfair to require a victim of sexual assault to provide an undertaking in damages where that Plaintiff has been entirely successful with her claim for damages.”
This decision by Justice Edwards lends support to winning plaintiffs (and also co-defendants with successful crossclaims) who choose to pursue a losing defendant who is not honouring a court award against them for damages arising out of sexual abuse. In the right circumstances, a Mareva injunction can be an important tool used in aid of execution, to hold a perpetrator of sexual violence accountable, and to ensure justice for survivors.