Canada: Refusal To Answer Questions Lands Judgment Debtor In Jail

Last Updated: February 10 2014
Article by Michael Binetti

Even though debtors' prison was abolished many generations ago, judgment debtors can still land themselves in jail if they refuse to answer questions on examinations in aid of execution, also known as judgment debtor or JD exams. In Ontario, judgment creditors have the right to ask questions about a debtor's assets and financial wherewithal once a year. A judgment debtor is required to attend and answer questions, failing which findings of contempt, fines and even jail time can be imposed.

In the case of Doobay v. Diamond, the Ontario Court of Appeal dismissed the defendant Diamond's appeal of the lower court's finding that he was in contempt of court, sentenced to 42 days in jail and fined $40,000 based on his continued refusal to answer questions asked on his JD exam.

Diamond was examined in aid of execution in 2008 and refused to answer any questions. A Master of the Ontario Superior Court of Justice ordered him to re-attend again in 2008, but again he refused to answer a substantial number of questions. Diamond thereafter consented to provide written answers in 2009, but the plaintiffs were still unsatisfied with the quality of the answers.

After a three-day hearing in 2010, a Judge of the Ontario Superior Court of Justice found that the answers provided by Diamond were "largely unresponsive" and "must be considered to be a deliberate attempt to obfuscate the issue before the court for the purpose of avoiding complying with the Order." Diamond was found in contempt, fined $20,000 and sentenced to 21 days' imprisonment for his flagrant disregard of a court order. Diamond appealed the sentence, lost, and eventually served his sentence in 2011. Diamond did not purge his contempt, however, and the plaintiffs brought another motion for contempt. Diamond sought an adjournment of the motion, which the Court granted on a peremptory basis subject to Diamond providing satisfactory answers. Diamond again provided answers, which were largely unresponsive.

Diamond again sought an adjournment on the return of the motion on the basis that he thought the matter had settled, which the plaintiffs obviously did not. Upon review of the new answers provided by Diamond, the motion judge concluded that the answers demonstrated "the same evasiveness and unwillingness to comply with the Court Orders" that the appellant had displayed in previous court appearances and that he was "obviously still playing tricks and games to avoid the Court's authority". The motion judge sentenced Diamond to a further term of incarceration of 42 days and imposed an additional fine of $40,000.

On appeal, Diamond complained that he was not granted an adjournment to call witnesses to support his assertion that there was in fact a settlement of the matter. The Court of Appeal rejected this on the basis that the initial adjournment was granted on a peremptory basis and that Diamond should have had his witnesses ready for the hearing. It was not improper for the motion judge to have denied a further adjournment when the first adjournment was given on terms.

The motion judge did, however, address the alleged settlement and concluded that Diamond, by providing further written answers to the outstanding questions after a settlement was allegedly concluded, conducted himself in a manner contrary to the existence of a settlement or his reasonable belief that the matter had been settled. Moreover, when Diamond appeared and sought the first adjournment on terms, he did not raise the issue of settlement; rather, he obtained an adjournment on an undertaking to provide responsive answers within 30 days. All of Diamond's conduct during this period was inconsistent with an honest belief that the matter had settled, the motion judge found.

On the issue as to whether a finding of contempt should have been made, Diamond complained that the motion judge did not review all of the answers that he provided so as to ascertain whether they were in fact unresponsive and could not have thus, made a proper finding of contempt. While the motion judge did not review every answer provided by Diamond, he did identify a long list of answers as inadequate, such as repeated replies of "fishing expedition" by Diamond. The motion judge found that Diamond knew that such answers were unacceptable.

The Court of Appeal also rejected Diamond's argument that he had already been penalized for his breach and that double jeopardy applied to prevent him from being penalized again. On this point, the Court of Appeal quoted from another Ontario Court of Appeal case, Chiang (Trustee of) v. Chiang to the effect of: "To permit only one penal sanction for the ongoing breach of an order deprives the court of the ability to impose measured, but incremental, sanctions to obtain compliance with that order."

The only issue to which the Court of Appeal took exception was the fact that the motion judge determined Diamond's liability for contempt and imposed a penalty at the same time. In the normal course, the Court of Appeal held, liability should be determined first and the defendant be given an opportunity to purge contempt before a penalty is imposed. Even though that did not occur in the case at hand, the Court of Appeal would have nevertheless not objected because of Diamond's delinquency throughout.

The Supreme Court of Canada refused leave to appeal the decision of the Ontario Court of Appeal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Michael Binetti
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions