Executive Summary: Key Legal and Evidentiary Issues

• The bank sought leave to issue a notice of garnishment over six years after a judgment, invoking procedural rules requiring court permission.

• Rule 60.08(2) mandates leave where delay exceeds six years, and evidence must show the creditor has not waived or acquiesced to non-payment.

• The court found no evidence of detrimental reliance or changed position by the debtor, despite the delay.

• Persistent attempts by the bank to contact the debtor and a renewed writ of seizure supported a finding of ongoing enforcement intent.

• The low threshold for explaining enforcement delay was satisfied through documented efforts spanning several years.

• Granting leave was deemed equitable, preventing a windfall to the debtor from procedural avoidance.

Background and judgment history

In The Bank of Nova Scotia v. Arnold, the plaintiff bank sought court approval to enforce a judgment issued on March 14, 2014. The judgment pertained to a mortgage debt totaling over $144,000, with additional costs and accruing post-judgment interest. The bank applied to issue a notice of garnishment more than six years after the judgment date, which under Ontario’s Rules of Civil Procedure, required leave from the court due to the passage of time.

Procedural law and test for leave

Under Rule 60.08(2) of the Rules of Civil Procedure, a notice of garnishment cannot be issued more than six years after judgment without court approval. This rule, consistent with Rule 60.07(2) regarding writs of seizure and sale, requires the creditor to demonstrate that it has not waived its rights or acquiesced to the debtor's non-payment. The creditor must also provide an explanation for the delay, though the evidentiary burden is low. The debtor, in turn, may oppose such a motion by proving detrimental reliance or a material change in position resulting from the delay.

Creditor's actions and findings of the court

The court found that while the bank had delayed enforcement, it had taken consistent steps to preserve and pursue its judgment. A writ of seizure and sale was filed in 2014 and renewed in 2020, extending its validity until 2026. The bank also submitted extensive evidence of efforts to contact the debtor from 2020 through 2024. These included mailed letters, property and credit searches, and dozens of unanswered phone calls. The debtor, Mr. Ronald Arnold, had not responded to any of these efforts and filed no materials in opposition to the motion.

Justice London-Weinstein noted that while delay was considerable, there was no indication that the bank had waived its enforcement rights or that the debtor had relied on the delay to his detriment. Instead, the record showed a consistent effort to collect the debt, with the debtor refusing engagement.

Court’s decision and rationale

The court held that the bank met the legal threshold for leave to issue a notice of garnishment. It emphasized that denying leave in such circumstances would unjustly reward the debtor for avoiding repayment and would effectively allow him to benefit from procedural delay. The bank’s persistence in pursuing collection efforts demonstrated a lack of waiver or acquiescence.

Conclusion

Leave was granted to the Bank of Nova Scotia to proceed with garnishment. This decision reinforces the court’s willingness to allow enforcement of judgments beyond six years where the creditor can show continued intent to collect and no prejudice to the debtor. It serves as a reminder that procedural delays do not extinguish substantive debt obligations when creditors diligently pursue recovery.