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Attendance and Participation: Involves Potential Contempt Finding for Failure to Co-Operate
Question: What happens if a debtor misses a Small Claims Court examination in Ontario?
Answer: If a debtor fails to attend an examination after being served with a Notice of Examination (Form 20H), they may face a Contempt Hearing under Rules of the Small Claims Court, O. Reg. 258/98 and Courts of Justice Act, R.S.O. 1990, c. C.43. A Contempt finding can lead to penalties, including possible jail time. Ensure your rights are protected and your obligations understood by consulting with legal professionals. Act now to avoid further legal complications.
Possibility of Contempt Finding With Incarceration
A Debtor or other person served with a Notice of Examination (Form 20H) is required to attend the court as directed and is required to co-operate with the examination process by participating and assisting with the gathering of information by the Creditor. Of course, a Debtor or other person may be reluctant to contribute and even hold hostility towards the task. A Debtor or other person who fails to attend court following receipt of a properly served Notice of Examination (Form 20H) may be ordered to attend a Contempt Hearing with the risk of serving jail time if the Contempt goes unpurged.
The possibility of an Order to attend a Contempt Hearing, and a possibility of a finding of Contempt, arises per Rule 20.11 of the Rules of the Small Claims Court, O. Reg. 258/98, when read in combination with section 30(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, wherein each it is respectively stated:
Contempt Hearing
20.11 (1) If a person on whom a notice of examination has been served under rule 20.10 attends the examination but refuses to answer questions or to produce records or documents, the court may order the person to attend before it for a contempt hearing.
Same
(2) If a person on whom a notice of examination has been served under rule 20.10 fails to attend the examination, the court may order the person to attend before it for a contempt hearing under subsection 30 (1) of the Courts of Justice Act.
Contempt hearing for failure to attend examination
30 (1) The Small Claims Court may, in accordance with the rules of court, order a debtor or other person who is required to and fails to attend an examination respecting a default by the debtor under an order of the court for the payment or recovery of money, to attend before the court for a contempt hearing.
Finding of contempt
(2) The Small Claims Court may find a person to be in contempt of court at a hearing referred to in subsection (1), if the court is satisfied that,
(a) the person was required to attend the examination;
(b) the person was served, in accordance with the rules of court, with a notice to attend the examination;
(c) the person failed to attend the examination; and
(d) the failure to attend was wilful.
Power conferred
(3) For greater certainty, the power of the Small Claims Court to order, hear and determine a contempt hearing under this section is conferred on and may be exercised by the persons referred to in clauses 24 (2) (a) and (b).
Limit on imprisonment in certain cases
(4) If a contempt hearing under subsection (1) is heard and determined by a person referred to in clause 24 (2) (a) or (b), the court may make such orders respecting the person in contempt as are specified by the rules of court, but the court shall not make an order that the person be imprisoned for a period of more than five days.
Authority unaffected
(5) Nothing in this section affects the authority of the Small Claims Court to order, hear and determine contempt hearings where it is otherwise authorized by law.
Interestingly, in the past, a Deputy Judge of the Small Claims Court was without power to Order a contempt finding; and accordingly, a Deputy Judge of the Small Claims Court would need to refer the hearing of a Contempt Hearing to a Judge sitting in the Superior Court. Today, it should be understood that a Deputy Judge of the Small Claims Court does hold the jurisdiction to conduct a Contempt Hearing and to issue an Order of Contempt. The capacity for a Deputy Judge sitting in the Small Claims Court to conduct a Contempt Hearing was reviewed within the case of Garnier v. Lemay, 2017 ONSC 2873, wherein it was said:
[21] It is Lemay’s position that a Deputy Judge of the Small Claims Court does not have the jurisdiction to make a finding of contempt. Lemay submits that the finding of contempt made by the Deputy Judge on December 1, 2015 is to be set aside and that the issue of contempt is to be determined as part of the motion before me.
…
[27] Section 30 of the Courts of Justice Act[5] grants to Deputy Judges of the Small Claims Court the jurisdiction to:
• Order that a judgment debtor who is required and fails to attend an EOD attend before the court for a contempt hearing (section 30(1));
• Find a person to be in contempt of court if the court is satisfied that the person was required to attend the EOD, the person was properly served with the notice of the EOD, the person failed to attend the EOD, and the failure to attend was wilful (section 30(2)); and
• Order that the individual in contempt be imprisoned for up to a maximum of five days (section 30(4)).[6]
[28] The Rules are clear in setting out the jurisdiction of a Deputy Judge to make a finding of contempt. The consolidation notes which follow rule 20.11(6) state the following:
From July 1, 2006 to December 31, 2010, only a Superior Court Judge could preside over a hearing in Small Claims Court for contempt of court for a debtor’s wilful failure to attend an examination hearing. The Rules of the Small Claims Court and the Courts of Justice Act were changed to also give deputy judges and provincial civil judges jurisdiction to preside over these contempt hearings as of January 1, 2011 (r. 20.11(2); new Courts of Justice Act, section 30).[7]
[29] I find that it was entirely within the jurisdiction of the Deputy Judge to make the finding in December 2015 that Lemay was in contempt of the Small Claims Court.
As above, a Deputy Judge of the Small Claims Court may order the conducting of a Contempt Hearing. The Court Clerk, upon receiving the Order for a Contempt Hearing is required to issue a Notice of Contempt Hearing and such must be served by the Creditor. It is notable that the Notice of Contempt Hearing is a document absent from the Small Claims Court Forms; and as such, the preparation and issuance of the document falls entirely upon the Court Clerk. As to the requirement that the Court Clerk issue the Notice of Contempt Hearing, the Rules state:
Notice of Contempt Hearing
20.11 (3) If the court makes an order for a contempt hearing,
(a) the clerk shall provide the creditor with a notice of contempt hearing setting out the time, date and place of the hearing; and
(b) the creditor shall serve the notice of contempt hearing on the debtor or other person in accordance with subrule 8.01 (13) and file proof of service at least seven days before the hearing.
A Deputy Judge of the Small Claims Court is empowered to make a Contempt finding as well as to Order various remedies upon such a finding. Specifically, the remedies upon a finding of contempt are prescribed in Rule 20.11 wherein it is said:
Finding of Contempt of Court
20.11 (5) At a contempt hearing held under subrule (1), the court may find the person to be in contempt of court if the person fails to show cause why the person should not be held in contempt for refusing to answer questions or produce records or documents.
Same
(6) The finding of contempt at a hearing held under subsection 30 (1) of the Courts of Justice Act is subject to subsection 30 (2) of that Act.
Other Powers of Court at Contempt Hearing
(7) At a contempt hearing, the court may order that the person,
(a) attend an examination under rule 20.10;
(b) be jailed for a period of not more than five days;
(c) attend an additional contempt hearing under subrule (1) or subsection 30 (1) of the Courts of Justice Act, as the case may be; or
(d) comply with any other order that the judge considers necessary or just.
Warrant of Committal
(a) the creditor may complete and file with the clerk an identification form (Form 20K) to assist the police in apprehending the person named in the warrant of committal; and
(b) the clerk shall issue a warrant of committal (Form 20J), accompanied by the identification form, if any, directed to all police officers in Ontario to apprehend the person named in the warrant anywhere in Ontario and promptly bring the person to the nearest correctional institution.
Discharge
(9) A person in custody under a warrant issued under this rule shall be discharged from custody on the order of the court or when the time prescribed in the warrant expires, whichever is earlier.
Duration and Renewal
(10) A warrant issued under this rule remains in force for 12 months after the date of issue and may be renewed by order of the court on a motion made by the creditor for 12 months at each renewal, unless the court orders otherwise.
Conclusion
A Debtor or other person who fails to attend, or fails to participate within, an examination hearing of the Small Claims Court may be ordered to attend a Contempt Hearing whereat a finding of contempt may occur. Upon a finding of Contempt, the person may be committed to spending time in jail.