In Ontario, fraud can be categorized into two main types: civil fraud and criminal fraud—the main difference lies in the legal consequences and available remedies to victims.
While civil fraud provides a mechanism for victims to sue and seek compensation from the perpetrator, the primary remedy for victims of criminal fraud is restitution orders. However, this remedy has proven difficult to enforce. Investigations by the CBC have revealed that the onus is placed on victims to collect their losses, which can be costly and time-consuming. In light of recent reporting, this blog will examine the differences in the enforceability of the remedies between criminal and civil fraud.
Remedies in Civil vs. Criminal Fraud
We have previously discussed civil fraud at length. To summarize, civil fraud is a private matter between two parties, usually involving a victim and a perpetrator. Civil fraud occurs when a person intentionally misrepresents facts or withholds information to deceive another person, resulting in financial harm to the victim. In a civil fraud case, the victim can sue the perpetrator for damages and seek compensation for their losses. Other common remedies are the rescission of a contract and injunctions.
On the other hand, criminal fraud is a public matter and is considered a criminal offence under the Criminal Code of Canada. Criminal fraud involves intentionally deceiving another person or organization for personal gain or to cause harm, and it carries legal consequences such as fines and imprisonment. In a criminal fraud case, the remedy often awarded to victims is the restitution order.
A restitution order is a court order that requires the offender to pay back the victim for the losses they have incurred as a result of the crime committed. However, obtaining a restitution order is only the first step in the process. It is equally important to enforce the order to ensure that compensation is received. is owed.
Enforcement of Restitution Orders
Once a restitution order has been issued in a criminal case, it is the responsibility of the victim to ensure the order is enforced. Enforcing a restitution order in Ontario can be a complex and time-consuming process. It is important to understand the steps involved and the role of different parties in the process.
The enforcement process begins with the Crown Attorney’s office, which is responsible for monitoring the offender’s compliance with the restitution order. The Crown Attorney’s office may also work with Victim Services to support and assist the victim throughout the enforcement process.
In some cases, fines and interest charges may be added to the restitution order to encourage the offender to make timely payments. The court may also initiate contempt of court proceedings against the offender if they ignore the restitution order.
If the offender fails to comply with the restitution order, the victim may take steps to enforce the order through the civil courts.
Filing a Restitution Order in Civil Court
To enforce a restitution order, it is possible to file a restitution order in civil court. Section 741(1) of the Criminal Code allows a victim to file the restitution order in civil court, which enables it to be treated as if it were a judgment. A victim may file a restitution order in civil court pursuant to subsection 741(1) of the Criminal Code, which grants it the same status as a judgment. In other words, the victim would then be permitted to seek enforcement mechanisms such as garnishment of wages and the sale of property to recover their losses.
Garnishment of Wages
Garnishment is a legal process that allows a creditor to collect money owed to them by an individual who owes a debt. This process involves obtaining a court order, which directs the individual’s employer to withhold a portion of their wages and pay it directly to the creditor until the debt is paid off.
The legislation that governs the garnishment of wages in Ontario is primarily the Wages Act and the Execution Act. The legislation sets out the rules for calculating the amount of wages that can be garnished, obtaining a garnishment order from the court, and enforcing the order. Creditors can generally garnish 50% of a person’s wages under the legislation.
Writ of Seizure and Sale
A writ of seizure and sale is a court order that authorizes the sheriff or other authorized officer to seize and sell the debtor’s property to satisfy a debt owed to a creditor. A court typically issues the writ following a judgment or order. It allows the creditor to take possession of the debtor’s assets, such as personal property, real estate, or vehicles. The assets are then sold at a public auction, and the proceeds are used to pay off the outstanding debt.
Writs are also governed under the Execution Act. The legislation sets out the specific procedures for the seizure and sale of property, including the requirements for notice to be given to the debtor and the rules for conducting the sale.
Restitution orders arising from criminal fraud can be enforced by civil courts. When filed with a court, the victim of the criminal activity will have a variety of enforcement mechanisms available to them.
Contact Milosevic & Associates for Advice Regarding Enforcement Mechanisms
With extensive experience in civil fraud, Milosevic & Associates provides unique enforcement advice tailored to our client’s circumstances. We also represent clients in a variety of corporate commercial matters, including commercial real estate, professional liability, and investment loss. To speak with a member of our corporate law team today, contact us online or call us at 416-916-1387.