Luu v. Abuomar 2017 Ont SCJ
There are 4 requirements to the appointment of an equitable receiver: (1) creditor obtains a writ of execution and files it with the sheriff; (2) creditor requests sheriff to levy the execution but sheriff is unsuccessful; (3) debtor owns or has an interest in an asset that is not otherwise exigible at common law; and (4) there is some kind of legal or practical impediment to seizure at common law. The judge held that criterion 4 had to be considered at the same time as criterion 3. In this case, the creditor had attempted to sell the debtor’s joint undivided interest in the property on 4 separate occasions and that nothing of consequence had been received; a judgment debtor examination was unsuccessful; and the debtor had attempted to thwart the creditor’s efforts to sell the property by arranging for a significant judgment against himself, a judgment that the creditor had set aside on the basis of fraud. Under these circumstances, the judge ordered the appointment of an equitable receiver.
Written by Jonathan Speigel Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.