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Execution - Joint Tenants (Ownership). Curtis v. McCague Borlack LLP
In Curtis v. McCague Borlack LLP (Ont CA, 2024) the Ontario Court of Appeal considered an appeal, here involving a lawsuit brought against opposing counsel in a prior proceeding involving the appellants. The prior proceeding was dismissed on grounds of 'absolute privilege'.
Here the court notes the important enforcement principle that the non-liable joint title-holder bears no duties to the judgement creditors:[7] The appellants included Mr. Turkienicz’s wife, Michelle Turkienicz, as a defendant in this action even though she had no association with McCague Borlack LLP. They included her only because she jointly owns assets with Mr. Turkienicz and wanted to prevent him from transferring his assets to his wife to avoid judgment. The motion judge did not err in finding that the claim against Ms. Turkienicz should be struck because, as he noted, “[t]he simple fact that spouses hold joint title to assets cannot, without anything more, form the basis of a claim against a spouse who is in no way otherwise involved in the allegations on which the action is based.” . Senthillmohan v. Senthillmohan
In Senthillmohan v. Senthillmohan (Ont CA, 2023) the Court of Appeal considered the execution status of one of two joint-tenant owners of real estate:[8] Because a creditor cannot seize the interest of a non-debtor joint tenant, the appeal must be dismissed.
[9] In our view, the appellant’s position fundamentally misunderstands the law of creditors’ remedies against jointly-held property where only one of the owners guaranteed the debt. Having so concluded it is not necessary to consider the appellants’ arguments about the date of severance.
[10] The appellant relies on authorities which stand for the proposition that each joint tenant holds an undivided interest in the whole of the property: Zeligs v. Janes, 2016 BCCA 280; Royal & SunAlliance Insurance Co. v. Muir, 2011 ONSC 2273, 9 R.P.R. (5th) 104. As Royal & SunAlliance notes at para. 2, each joint tenant “holds everything and yet holds nothing.” The appellant’s argument is that, because joint tenants are essentially one owner until the joint tenancy is severed, a creditor has the right to claim against the full interest. While Royal & SunAlliance does set out the characteristics of joint tenancy – unity of title, unity of interest, unity of possession, and unity of time – it does not support the conclusion that where the debt itself is not jointly held that the entire property is exigible.
[11] While there is little jurisprudential guidance on this discrete question, it is the natural corollary of the generally accepted and commonly cited proposition that an execution creditor can execute against the debtor’s interest in jointly held property. In other words, to accept the appellant’s position would render meaningless the use of the words “the debtor’s interest in”.
[12] Arnold Bros. Transport Ltd. v. Murphy, 2013 MBQB 137, 295 Man. R. (2d) 66, aff’d. 2014 MBCA 9, 303 Man. R. (2d) 140, upon which the appellant relies, does not assist as it interprets the statutory scheme that governs in Manitoba, which differs from the law in Ontario. In Manitoba, s. 136(3) of the Real Property Act, C.C.S.M. c. R30, prescribes the order of payment as follows: 1) expenses occasioned by the sale; 2) payment due or owing to the mortgagee or encumbrancer; 3) payment of subsequent mortgages, encumbrances, or liens, if any, in the order of their priority; with 4) the surplus being paid to the owner or other person entitled. In Manitoba, a writ constitutes a lien on the land and accordingly falls within step 3 above. In this way, writs are paid out before any remaining surplus is paid to joint tenants.
[13] In Ontario, s. 9(1) of the Execution Act, R.S.O. 1990, c. E.24 provides that:9(1) The sheriff to whom a writ of execution against lands is delivered for execution may seize and sell thereunder the lands of the execution debtor, including any lands whereof any other person is seized or possessed in trust for the execution debtor and including any interest of the execution debtor in lands held in joint tenancy. [Emphasis added.] [14] The process of seizure and execution on debts only contemplates the execution against the debtor’s exigible interest in the land held in joint tenancy. For instance, when a sheriff takes sufficient steps to seize property, the joint tenancy is severed and, once severed, the debtor joint tenant has no claim to the whole. So, too, for the creditor, who can now execute against the debtor’s share of the tenancy in common.
[15] Section 10(6) of the Execution Act also provides that a writ “binds the lands against which it is issued”. While this does not expressly state that a writ can effect only a seizure of the debtor’s exigible interest in land held in joint tenancy, it is the natural interpretation of the provision when read in conjunction with s. 9 and the right of survivorship. That is to say, where property is jointly held and one joint tenant dies, the remaining joint tenant acquires the entire interest in the property through their right of survivorship. And, where a writ is filed against jointly held land before the debtor joint tenant’s death, it does not continue to bind the surviving non-debtor’s complete interest in the property acquired through their right of survivorship: Power v. Grace, 1932 CanLII 116 (ON CA), [1932] O.R. 357 (Ont. C.A.).
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