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Civil Litigation Dicta - Interim Recovery of Property [RCP 44]. Kostiuk v. Liu
In Kostiuk v. Liu (Div Court, 2024) the Divisional Court reconsiders the drafting and detail of an "interim order under section 104 of the Courts of Justice Act for recovery of possession of personal property" [RCP R44]:[15] Paragraph 2 of the Order dated April 25, 2024 provides:This court orders that within 30 days of this order, the applicant shall be provided an opportunity to attend in person at 166 Lorindale Drive, Oshawa, Ontario to take inventory of the contents of the house and to retrieve his personal belongings, including among other things, knapsacks, air compressor, clothing, books, magazines, artwork, furniture, tools, etc. [16] This paragraph is too broadly worded to allow it to be enforced in its present form. It does not list the precise objects that the Applicant is permitted to retrieve. Based on the wording of this paragraph, the Applicant appears to have the authority to decide for himself what contents he may retrieve from Ms. Liu’s home. The Order fails to identify which items are his “personal belongings”. This concern is compounded by the fact that there is no indication in his Notice of Application what belongings he was claiming. The Court cannot authorize such a vague and amorphous order. A Court order must be precise enough for the parties to know exactly what they can and cannot do. Court orders should not include the word “etc.”.
[17] See also Rule 44.01(1) of the Rules of Civil Procedure, which states that:An interim order under section 104 of the Courts of Justice Act for recovery of possession of personal property may be obtained on motion by the plaintiff, supported by an affidavit setting out,
(a) a description of the property sufficient to make it readily identifiable; .... [18] The Order obtained by the Applicant does not comply with this requirement. If the Applicant requires an interim Order in the nature of paragraph 2 of the April 25, 2024 Order, he must comply with Rule 44.01(1) and the Order should reflect this requirement.
[19] Accordingly, paragraph 2 of the April 25, 2024 Order is stayed until further Order of the Court.
[20] Paragraphs 7, 8, 9, 10, 11, and 12 of the Order are also problematic. These paragraphs purport to grant the Applicant the right to examine unidentified lawyers, doctors and other health care providers. These persons are not parties to this proceeding and did not have notice of this Application.
[21] The Order purports to waive or dispense with any claim of solicitor-client privilege, and provides:That any claim of professional confidentiality or privilege between the deceased and any healthcare provider, person, institution or the Ontario Provincial Police, inclusive of privacy regulations or legislation prohibiting obtaining of such information, personal health information in respect of the deceased and documentation governed by the Personal Protection and Electronic Act (sic) and Personal Health Information Protection Act or any other applicable legislation shall be waived. [22] In my view, these paragraphs of the Order are unenforceable against persons who were not given notice of the Application, and, for greater clarity, all of these paragraphs must be made subject to the right of any person without notice of the Application to raise issues of confidentiality or privilege or legal prohibition with the court before being examined or disclosing documents. Nor can a court order simply “waive” all applicable legislation or regulations “prohibiting obtaining of such information”. I do not know whether any such statutory provisions even exist, but if they do, persons cannot be ordered or authorized to disobey the law.
[23] Accordingly, while I am not staying these paragraphs of the Court Order, these paragraphs are subject to the right of any person without notice of the Application to raise issues of confidentiality or privilege or legal prohibition with the Court before being examined or disclosing documents.
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