Date: 20070116
Docket: T-682-06
Citation: 2007
FC 44
Toronto, Ontario, January 16, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
RICHARD WARMAN
Applicant
Judgment Creditor
and
CANADIAN HUMAN RIGHTS COMMISSION
Commission
and
TOMASZ WINNICKI
Respondent
Judgment Debtor
REASONS FOR ORDER AND ORDER
[1]
This is a
motion by the applicant for:
1.
An order
that the cash bail of $5,000.00 that was posted with the Federal Court on
October 4, 2006, pursuant to an order dated September 28, 2006, be paid to the applicant,
to partially satisfy the judgment debt in favour of the applicant; and
2.
Such
further and other relief as this Honourable Court deems just.
[2]
The motion
was made pursuant to Federal Courts Rules, S.O.R./98-106, Rules 456 and
457. The respondent did not appear at the hearing of the motion or file any
material.
[3]
The
applicant gave the following summary of the factual background:
1.
….
2.
In
September of 2003, a complaint was filed with the Canadian Human Rights
Commission (the “Commission”) alleging that Judgment Debtor, Tomasz Winnicki
(“Winnicki”), was discriminating against persons, contrary to subsection 13(1)
of the Canadian Human Rights Act, [R.S., 1985, c. H-6];
3.
Pending a
final decision by the Canadian Human Rights Tribunal (the “Tribunal”) on
October 4 2005, Montigny J. issued an interlocutory injunction ordering that
Winnicki be restrained from communicating by means of the internet messages
that are likely to expose persons to hatred or contempt.
4.
On March
14, 2006, the Commission began contempt proceedings against Winnicki for his
alleged breach of the October 4, 2005 interlocutory injunction.
5.
The
Tribunal made an order against the Judgment Debtor in favour of the Applicant
in its decision dated April 13th, 2006 in the amount of $5,500.00.
6.
On July
12, 2006, Winnicki was found to be in contempt of court and sentenced to a term
of imprisonment of nine months for breaching the interlocutory injunction
order.
7.
By notice
of appeal dated August 3, 2006, Winnicki requested that an acquittal of the contempt
order be entered or a new trial ordered and sought bail pending his appeal.
8.
The
Appellant was ordered by the Federal Court of Appeal on September 28, 2006 to
post with the Court cash bail of $5,000.00 or its equivalent payable to the
Receiver General for Canada.
9.
On October
4, 2006, Winnicki’s solicitor, James Foord, tendered payment of $5,000.00 into
court for Winnicki’s cash bail.
[4]
For the
purpose of enforcement, the Tribunal’s order was filed and entered as a Federal
Court order on April 19, 2006.
[5]
The
amounts ordered have not been paid.
[6]
Rule 423
of the Federal Courts Rules states:
423. Where brought – All matters relating to the
enforcement of orders shall be brought before the Federal Court.
[7]
And Rules
456 and 457 read as follows:
456. (1) Payment of money in court – Where money is standing to
the credit of a judgment debtor in court, the judgment creditor shall not bring
a motion under rule 449 in respect of the money, but may bring a motion for an
order that the money, or a lesser amount sufficient to satisfy the order sought
to be enforced and the costs of the motion, be paid to the judgment creditor.
(2) Limitation – Money to which a motion
under subsection (1) relates shall not be paid out of court until after the
determination of the motion.
(3) Service of notice of motion – Unless the Court directs
otherwise, notice of a motion under subsection (1) shall be served on the
judgment debtor and filed at least seven days before the day fixed for the
hearing of the motion.
457. Costs of motion – The costs of a motion under
rule 449 or 456 and of any related proceedings shall, unless the Court directs
otherwise, be retained by the judgment creditor out of the money recovered
under the order and in priority to the judgment debt.
[8]
It would
appear that if money is to be standing to the credit of a judgment debtor, in
this case, Winnicki, the earliest time that this could occur would be when the
conditions of his release, imposed by Malone J.A. of the Court of Appeal, have
been satisfied.
[9]
The applicant
has indicated that the Canadian Human Rights Commission (CHRC), in its motion
in writing to the Federal Court of Appeal, has asked for the forfeiture of the
$5,000.00 paid to the Receiver General of Canada pursuant to paragraph 17(g) of Malone
J.A.’s release order. He also informed me that the CHRC would withdraw the
request for forfeiture of the $5,000.00 should the applicant obtain an order paying
the money to him.
[10]
I am of
the opinion that an order should issue that the sum of $5,000.00 paid into court
pursuant to paragraph 17(g) of Malone J.A.’s order be paid to the applicant
when the conditions of Winnicki’s release, imposed by Malone J.A. of the
Federal Court of Appeal, have been satisfied. This order would be subject to
any order made by the Federal Court of Appeal dealing with the $5,000.00.
Therefore, should the Federal Court of Appeal deal with the distribution of the
$5,000.00; my order will be of no force or effect.
[11]
The
applicant requested costs of this motion on a solicitor and client basis. He
stated that Winnicki made the motion necessary. I am not prepared to order
costs on a solicitor and client basis. The applicant shall have his costs of
the motion and as outlined in Federal Court Rule 457.
ORDER
THIS COURT ORDERS that:
1.
The sum of
$5,000.00 paid into court pursuant to paragraph 17(g) of Malone J.A.’s order of
September 28, 2006 (File No. A-334-06) be paid to the applicant when the
conditions of WINNICKI’s release, imposed by Malone J.A. of the Federal Court
of Appeal, have been satisfied. This order would be subject to any order made
by the Federal Court of Appeal dealing with the $5,000.00, in which case my
order with respect to the $5,000.00 and costs will be of no force and effect.
2.
The
applicant shall have his costs of the motion to be paid as provided in Federal
Court Rule 457.
“John
A. O’Keefe”
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