Toronto, Ontario, January 16, 2007
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-682-06
STYLE OF CAUSE: RICHARD WARMAN v. CANADIAN HUMAN
RIGHTS COMMISSION v. TOMASZ WINNICKI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 15, 2007
APPEARANCES:
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Richard Warman
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No Appearance
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SOLICITORS OF RECORD:
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Kevin A. Egan McKenzie Lake Lawyers London, Ontario
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Tomasz Winnicki London, Ontario |
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