Background
In 2019, the Court of Appeal for Ontario allowed Constance McCron’s appeal of a costs order arising from her brothers’ unsuccessful will challenge, ordering Julian and Valentin Birtzu to pay $150,000 in trial costs and $10,000 in appeal costs (Birtzu v. McCron, 2019 ONCA 777). McCron subsequently assigned the debt to her law firm, Hull & Hull LLP. Writs of seizure and sale were issued in 2020, but the brothers could not be located for service until 2025, and enforcement efforts had been unfruitful.
By 2025, more than six years had elapsed since the Court of Appeal’s judgment, meaning the existing writs could no longer be enforced against the debtors’ property without fresh court authorization. Under Rule 60.07(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, a writ of seizure and sale cannot be issued after six years have elapsed since the date of the order unless leave of the court is first obtained.
Hull & Hull brought a motion before the Court of Appeal seeking: leave to issue fresh writs of seizure and sale against both brothers; an order compelling Valentin Birtzu to attend an examination in aid of execution; costs of $1,000; and an order validating service of the motion record. Julian Birtzu appeared in person; no one appeared for Valentin Birtzu; and amicus curiae appeared through Pro Bono Ontario.
The Court’s Holding
Gomery J.A., sitting as motion judge, dismissed the motion without prejudice to Hull & Hull’s right to bring the same motion in the Ontario Superior Court of Justice in Brampton. The court held that, regardless of whether the Court of Appeal technically possessed jurisdiction under Rule 60.07 or any other rule, it was not the appropriate forum for the relief sought.
The court reasoned that Rule 60.07(1) refers to the registrar “where the proceeding was commenced,” and Rule 1.03(1) defines “court” as the court in which a proceeding is pending. Because the underlying will-challenge proceeding was not commenced in the Court of Appeal and no proceeding was pending there, the Superior Court — which routinely hears motions concerning writs of seizure and sale and examinations in aid of execution — was the proper venue.
The court also noted, agreeing with amicus, that the motion record was independently deficient: it failed to adequately explain the delay in taking steps to enforce the judgment after 2019.
Key Takeaways
- A judgment creditor seeking leave under Rule 60.07(2) after six years should bring the motion in the court where the original proceeding was commenced — typically the Superior Court — not in the Court of Appeal, even if the enforceable order originated there.
- The Court of Appeal is not an appropriate forum for routine enforcement steps such as writs of seizure and sale or orders compelling examinations in aid of execution; those matters belong in the Superior Court.
- A motion record in support of a Rule 60.07(2) leave application must adequately explain any significant delay in enforcement efforts; failure to do so is an independent basis on which the motion may be refused.
Why It Matters
This decision provides practical guidance for judgment creditors holding Court of Appeal cost orders: when the six-year window under Rule 60.07(2) has elapsed, they should not return to the appellate court for enforcement relief. The Superior Court is both the procedurally correct and the functionally appropriate venue, given its routine handling of post-judgment enforcement machinery.
The decision also serves as a reminder that enforcement motions brought after lengthy delays must be accompanied by a fulsome explanation of why steps were not taken sooner. Courts will scrutinize the procedural record, and an incomplete record may independently doom a motion even where jurisdiction is otherwise available.