Executive Summary: Key Legal and Evidentiary Issues

• Interpretation of Rule 60.10 of the Ontario Rules of Civil Procedure regarding writs of possession

• Sufficiency and timing of notice to occupants when seeking leave to issue a writ

• Validity of the Plaintiff’s Notice Demanding Possession (NDP) template and its compliance with case law

• Determination of what constitutes “sufficient notice of the proceeding” to non-party occupants

• Importance of including particulars of the judgment in possession proceedings

• Judicial discretion in granting relief despite procedural irregularities in specific factual circumstances

Facts and procedural background

Royal Bank of Canada commenced an action against Regis Ainbinder for possession of a property. The Plaintiff sought a writ of possession after obtaining a default judgment. The motion was brought ex parte, meaning without notice to the Defendant or any other occupants. Although the Plaintiff was successful in obtaining judgment, the court raised concerns about the manner and sufficiency of the notice sent to the Defendant.

The court focused heavily on the Plaintiff's use of a standard template for the Notice Demanding Possession (NDP). This template was used not only in this case but in many similar motions by the same law firm. The issue was whether this NDP complied with the requirements under Rule 60.10(2) of the Rules of Civil Procedure, which mandates that all persons in actual possession must receive “sufficient notice of the proceeding” before a writ of possession can be issued.

Judicial analysis and findings

The court reviewed Rule 60.10 in depth, distinguishing between subrules (1) and (2). It found that while subrule (1) allows a writ of possession to be sought at the time judgment is obtained, subrule (2) applies where judgment has already been granted, and the plaintiff seeks the writ afterwards. In such cases, sufficient notice to all occupants is required.

The court then analyzed the NDP used by the Plaintiff’s law firm and found it problematic. The notice was conditional, stating that a writ would only be sought “if judgment has been obtained,” without confirming whether judgment had, in fact, been granted. It also failed to attach a copy of the judgment or state its details. The court considered this ambiguity insufficient and confusing for occupants, who could not reasonably know whether they were legally obligated to vacate or seek relief from the court.

Citing relevant case law, including Jamort Investments Ltd. v. FitzGerald and National Bank of Canada v. Ehtisham, the court reinforced that “sufficient notice” must include information that enables the person in possession to understand the plaintiff’s legal entitlement and respond appropriately. Including a copy of the judgment or at least its particulars was emphasized as best practice.

Outcome

Despite the identified issues with the NDP, the court granted the Plaintiff’s motion for leave to issue the writ of possession. It found that the Defendant, who was the only occupant, had been served with both the judgment and the NDP, albeit separately. A recent occupancy check had also confirmed he remained the sole occupant. In light of these specific facts, the court was satisfied that the requirements for notice were met in this case. However, the court clearly warned that similar motions might be denied in future if these deficiencies were not addressed.

The endorsement serves as both a decision on the individual motion and a broader directive regarding proper procedural compliance in possession proceedings.