Court of Appeal

Nova Scotia Court of Appeal

Citation: Armoyan v. Armoyan, 2014 NSCA 17

Date: 20140214

Docket: CA 407024

Registry: Halifax

Between:

Lisa Armoyan

Appellant

v.

Vrege Armoyan

Respondent

Decision:

Background

[1]             On November 29, 2013, this Court made a costs order against Vrege Armoyan in the amount of $306,000 inclusive of disbursements.  On December 5, 2013, Lisa Armoyan took out an execution order against Mr. Armoyan.  On that same day, she obtained a discovery subpoena in aid of execution which required Mr. Armoyan to attend to answer questions under oath regarding his assets and circumstances.

[2]             Despite repeated attempts, Ms. Armoyan was unable to serve Mr. Armoyan with the discovery subpoena.  As a result, on January 31, 2014, a motion was filed in this Court, in Chambers, for an order for substituted service.  The matter was originally before me in Chambers on Thursday, February 5, 2014.  The matter was adjourned for a further week to allow counsel for Ms. Armoyan to make further submissions on whether this Court was the proper forum to seek an order for substituted service.  On February 13, 2014, I dismissed the application with reasons to follow.  These are my reasons.

Analysis

[3]             Rule 79.23 permits the prothonotary to issue a discovery subpoena in aid of execution.  It provides:

Discovery of debtor in aid of execution

            79.23 (1) A judgment creditor who provides the representations required by Rule 79.23(2) may request that the prothonotary issue a discovery subpoena in aid of execution addressed to any of the following persons:

(a)        a judgment debtor who is an individual;

(b)        a person who holds office in, manages all or part of the business of, or is a director of a corporate judgment debtor;

(c)        if a corporate judgment debtor ceases to have any officer, manager, or director, each person who last held office in, managed, or was a director of the corporation.

[4]             Ms. Armoyan’s counsel suggests that the Registrar of the Court of Appeal can issue a discovery subpoena in aid of execution on the basis of Rule 90.02(a).  This Rule states:

90.02 (1) The Civil Procedure Rules that are not inconsistent with this Rule apply to proceedings in the Court of Appeal with necessary modifications as directed by the Court of Appeal or a judge of the Court of Appeal.

[5]             Thus her argument is that although Rule 79 does not permit the Registrar of the Court of Appeal to issue the subpoena, Rule 90 does not expressly provide a route for this Court’s orders to be enforced.  As a result, Rule 79 is not inconsistent with Rule 90 and the Registrar can issue a discovery subpoena in aid of execution of the Court of Appeal’s order.

[6]             In my view, the reason why Rule 90 does not contemplate the enforcement of this Court’s orders is because that jurisdiction lies with the Supreme Court through the applications of Rules 90.50(1) and 90.53(1).  Rule 90.50(1) prescribes the Registrar’s responsibilities following the issuance of an order by the Court of Appeal:

90.50 (1) When the Court of Appeal delivers judgment, the registrar must immediately do both of the following:

(a)        with the approval of the judge presiding on the appeal, settle, sign, and enter a formal order of judgment that shows the date on which the judgment was delivered, and provides for the disposition of the appeal as directed by the Court of Appeal;

(b)        deliver a copy of the order to each party and the court appealed from.  (Emphasis added)

[7]             Once the Registrar has performed this function, it is necessary to turn to Rule 90.53(1):

90.53 (1) When an order of the Court of Appeal has been certified by the registrar to the prothonotary or clerk with whom the order appealed from was entered, the prothonotary or clerk must cause it to be filed, and all subsequent proceedings may be taken as if the certified order had been granted by the court appealed from.  (Emphasis added)

[8]             As a result, following the issuance of an order by this Court, all “subsequent proceedings” may be taken as if the certified order had been granted by the Supreme Court.  To put it another way, a costs order of the Court of Appeal will  be treated as a costs order of the Supreme Court if there are subsequent proceedings in relation to that order (other than, for example, if a party seeks to amend the order in accordance with Rule 90.50(2) or seeks to appeal the order).  Logically it follows that if the subsequent proceeding is execution on that costs order, then this should occur in the Supreme Court in the first instance.  This interpretation would be consistent with the language of Rule 79, which expressly provides for Supreme Court judges and prothonotaries to take action with respect to executions rather than the Court of Appeal judges and the Registrar.

[9]             For this reason it is my view that the proper recourse for Ms. Armoyan is to seek an order for substituted service before the Supreme Court. 

[10]        One other issue that arose during the hearing of this matter was the wording of Rule 79.25(1) which says:

79.25 (1) A discovery subpoena in aid of execution, or an order for discovery in aid of execution, must be delivered to the witness personally.

[11]        I raised the issue with Ms. Armoyan’s counsel as to whether substituted service was even available in light of the wording of this Rule.  It is not necessary for me to address this issue in light of my conclusion above.  However, it is an issue which ought to be addressed when and if this matter is heard before the Supreme Court.

Conclusion

[12]        The motion for substituted service is dismissed.  However, as the motion was made ex parte I would make no order as to costs.

Farrar, J.A.