On March 24th, the Ontario Superior Court of Justice declined to order the production of bank records so the applicant, a judgment creditor, could initiate a Sheriff’s sale.
The applicant held a first mortgage on the debtor’s home, which he owned and mortgaged jointly with an estranged wife who continued to live in the home. The respondent bank held a second mortgage.
The applicant filed a writ of execution after receiving a judgement and later sought to initiate a sale of the home. The Sheriff would not do so without documentation showing the debtor’s equity in the home, so the applicant asked the respondent bank for documentation. When the bank refused, the applicant applied for production. It argued that an order was necessary because it could not find the debtor to serve him with a judgement debtor notice of examination, and even if it could find the debtor, that it was more efficient to simply order production of the bank statements.
The Court held that the applicant was not entitled to the documentation under the Mortgages Act and declined to order production based on its equitable jurisdiction. It held that the bank was not implicated in a wrongdoing in the sense that banks often are when individuals flow monies obtained by fraud through bank accounts. Moreover, it held that the order was not necessary given the applicant could examine the debtor’s wife, who had a privacy interest in her (joint) bank records and an important interest in the property at risk of sale. Instead, the Court granted leave to add the debtor’s wife as a respondent so it could seek an order, to be made on notice, for her examination.