Affidavit for Enforcement Request: Nuances Requesting Special Attention and Diligence

Question: What are the common challenges when completing the Affidavit for Enforcement Request in Small Claims Court?

Answer: Common challenges include accurately interpreting the details required in the document, correctly calculating costs and interest, and managing multiple defendants' liabilities, all of which can lead to potential rejection of the form by the court if not handled properly. Engaging assistance in this process can significantly reduce the risk of errors and ensure compliance with court expectations.

Completing the Affidavit for Enforcement Request

The Affidavit for Enforcement Request (Form 20P) document is likely the most troublesome document to complete within the Small Claims Court realm.  At first glance, the document appears straightforward; however, the basis upon which costs entitlements and interest calculations must be shown can be the cause of much confusion; and if completed improperly, acceptance of the document may be declined by the court.

Multiple Party Matters

It is important to keep in mind that a Judgment may be issued with proportional liability upon multiple Defendants; and accordingly, enforcement proceedings against a Defendant, who becomes known as a Judgment Debtor following Judgment, may be only for a portion of the total sum due.  As an example, a corporation and a human may be the persons who were sued within a Small Claims Court case.  Presume that a Judgment in the amount of twenty-five thousand 00/00 ($25,000.00) dollars was issued against the corporation and the human on a joint and several basis; however, an additional sum of ten thousand 00/00 ($10,000.00) dollars as a punitive damages was issued against the human.  When pursuing this Judgment, enforcement proceedings against the corporation may seek only twenty-five thousand 00/00 ($25,000.00) dollars while the enforcement against the human may seek thirty-five thousand 00/00 ($35,000.00) dollar total.  Accordingly, understanding principles relating to damages and remedies, such as vicarious liability principles, joint and several liability principles, among other things, are imperative when seeking to enforcement a Judgment.

Costs

Secondly, difficulty also arises due to the many possible interpretations for the details required within the Affidavit for Enforcement Request (Form 20P) document, including interpretations that may be biased whereas a Judgment Creditor may view the “Costs” field as seeking the sum of all Costs incurred to the date of issuing the form including all disbursement expenses and representation fees despite that some representation fees, by this point in time, are in addition to the disbursement expenses and representation fees that were awarded within the Judgment or Order that is being enforced.  Of course, the Judgment Debtor will be biased with the opposite view.

Generally, court clerks take an interested view despite that court clerks should be disinterested and leave any disputes regarding interpretation of details required upon court forms, including determination of the basis for making certain calculations, to the parties and judges.  However, court clerks, and sometimes this depends upon which courthouse is involved, do tend to interpret the "Costs" field within the Affidavit for Enforcement Request (Form 20P) as seeking details of the costs expressly awarded within the Judgment or the Order as well as the costs, as a disbursement expense, solely associated with court fees payable to the Minister of Finance for the enforcement proceedings.  Many clerks take the view that any other costs incurred by the Judgment Debtor may be included as “Costs”, only if supplementally ordered by a Judge such as when a representation fee is awarded for services rendered at an Examination hearing or upon any other enforcement proceeding event.

Interest

Thirdly, difficulty with the Affidavit for Enforcement Request (Form 20P) often arises in the manner of calculating interest whereas some court clerks may expect that interest calculations be adjusted for any quarterly changes to the interest rate prescribed by the Courts of Justice Act, R.S.O. 1990, c. C.43, and other clerks may expect that interest calculations be based only on the pre-Judgment interest rate that was applicable on the pre-Judgment date stated in the claim or as explicitly stated as the pre-Judgment interest date within the Judgment as well as the based upon the post-Judgment interest rate that was applicable on the date the Judgment was made.

Prorating Interest Following Received Payments

Fourthly, difficulty also arises in calculations that require the prorating of interest based upon a declining balance owing due to reduction of the debt by payments received, whether directly paid or indirectly received via a garnishment, etc.  Where many payments are applied to the balance owing, the calculations for prorating of post-Judgment interest becomes more and more difficult.

Attaching a Worksheet

Here is an example Affidavit for Enforcement Request (Form 20P) with an attached Interest Calculation Worksheet.  Upon review of the worksheet, it will be noted that prorating for the number of days and balance owing per quarterly period is performed.  As can be seen from the worksheet, whereas only one payment was received, performing just the various prorating calculations for each of the applicable quarterly periods takes a significant effort.  Accordingly, the same process becomes quite tedious where multiple payments, as opposed to just one payment within this example, are made.

Conclusion

The proper completion of the Affidavit for Enforcement Request (Form 20P) is crucial to the enforcement process.  Mistakes upon the form or within the various calculations required may result in enforcement processes being declined or delayed.  Getting professional assistance is prudent when enforcing a Judgment.