PLAINTIFF S FACTUM (Returnable December 20, 2012)

Transcription

1 ONTARIO SUPERIOR COURT OF JUSTICE Court File No /12 B E T W E E N : YASMIN NAKHUDA Plaintiff - and - STORY BOOK FARM PRIMATE SANCTUARY and SHERRI DELANEY PLAINTIFF S FACTUM (Returnable December 20, 2012) Defendants Falconer Charney LLP Barristers at Law 8 Prince Arthur Avenue Toronto, ON M5R 1A9 Theodore P. Charney Lawyer s Registration No: 26853E Tel: (416) Fax: (416) Lawyers for the plaintiff, Yasmin Nakhuda

2 2 TO: Brauti Thorning Zibarras LLP 151 Yonge Street, Suite 1800 Toronto, Ontario M5C 2W7 Kevin D. Toyne Tel: (416) Fax: (416) Lawyers for the Defendants, Story Book Farm Primate Sanctuary and Sherri Delaney

3 3 PART I - OVERVIEW 1. The plaintiff Yasmin Nakhuda ( Yasmin ) seeks an order for interim recovery of possession of personal property, described as a Japanese macaque monkey named Darwin. Yasmin owned Darwin who was seized by Animal Services on December 9, 2012, at IKEA under intense media and internet attention. 2. Once the IKEA monkey story hit the media, the defendants immediately applied to have Darwin transferred to their farm. He was transferred to the farm in Sunderland, Ontario, on December 10, The sanctuary provides a home for abused and abandoned primates. While the stated goals and operations of the sanctuary are salutary, Darwin is not an abandoned or abused primate. He was in perfect health when Animal Services gave him to the defendants. When the defendants took possession of Darwin, Ms. Delaney was aware that Darwin is Yasmin s pet and that he was taken from her by Animal Services. 4. Darwin belongs to Yasmin and should be returned to the family with whom he has bonded and who considers him to be their pet or companion animal. 5. The defendants will not suffer any prejudice if Darwin is returned to Yasmin, whereas Yasmin and her family have been traumatized by their pet being taken away from them. Their bond with Darwin will be severed with the passage of time as Darwin grows older and assumes he has been abandoned. Indeed, that is what the defendants are counting on by refusing access. The defendants have refused all requests for access. The balance of convenience favors the return of Darwin until the trial.

4 4 PART II - THE FACTS 6. Yasmin is a real estate lawyer who lives in Toronto with her husband and two children ages 11 and 16. Darwin has lived with the family since July 14, The family considers Darwin to be their pet or companion animal. He was about two months old when he was gifted by a breeder to Yasmin Yasmin does not have any legal papers evidencing ownership, which is not unusual for a pet, but the photos at Exhibit A evidence that she has been in continuous possession of Darwin since July. The photos show Darwin in close physical contact with Yasmin, or family members, being nurtured and cared for at home, in the car, at work, sleeping with the son, dressed up for Halloween, and going to bed Darwin was well cared for in every respect and developed a very close bond with Yasmin as his mother figure. Baby monkeys usually spend their first year primarily living on their mother s back and to a large extent that s precisely what Darwin would do with Yasmin. 3 DARWIN AT IKEA - SEIZED BY TORONTO ANIMAL SERVICES 9. On December 9, 2012, Yasmin and her husband Samar drove to IKEA in North York to go shopping. IKEA has a policy against pets so Darwin stayed behind in his carrier. Darwin somehow managed to get out of his carrier and open the car door. He decided to go for a walk, likely looking for Yasmin and was spotted in his shearling coat in the IKEA parking lot Bystanders took photos and videos on their cell phones which were uploaded to the internet and You Tube, starting an international media frenzy. 1 Paras. 1-3 and 15 of the affidavit of Yasmin Nakhuda, sworn December 13, 2012 (the Affidavit ). 2 Exhibit A and para. 9 of the Affidavit. 3 Para. 3 of the Affidavit. 4 Para. 5 of the Affidavit.

5 5 Darwin - the cute baby monkey in a shearling coat at IKEA became the IKEA monkey A photo of Darwin that day is at exhibit D. It is not exactly the picture of a distressed animal whose owner abused him By the time Yasmin and Samar returned to the car and discovered Darwin was missing, Toronto Animal Services had been called and had already seized him in front of IKEA. No one thought to page the owner in the IKEA store or to ask around the lot. He was taken away In a panic, Samar and Yasmin started to make phone calls to branches of Animal Services and were informed that he was at the 1300 Sheppard Avenue location (the Centre ). They were relieved to know he was found and rushed over to retrieve him. Unbeknownst to Yasmin and Samar their pet was about to become the IKEA monkey. 8 TORONTO ANIMAL SERVICES 14. Toronto Animal Services is operated by the City of Toronto and has a number of Animal Care Centres where, according to the web site, people can find a new companion or be reunited with a lost pet. Included in the list of services provided by Animal Services are: Take in stray animals or those in need of protective care that are picked up by our professional enforcement and mobile response team of Animal Care and Control Officers; Reunite more than 2000 lost animals with their guardians each year through our lost and found pets program. 9 5 Para. 23 of the Affidavit. 6 Exhibit D and para. 16 of the Affidavit. 7 Para. 6 of the Affidavit. 8 Para. 7 of the Affidavit. 9 Exhibit E and para. 17 of the Affidavit.

6 6 15. Yasmin went to the Centre to retrieve her lost pet who was picked up by Animal Services. That is one of the stated purposes of the Centre, to pick up lost pets and reunite them with their owner Unfortunately that was not to be. Instead of being reunited with her lost pet, Yasmin ended up signing a form surrendering Darwin to Animal Services Why would a pet owner who loves and is devoted to caring for her pet (and who has a family that considers Darwin to be the family pet), surrender the pet to Animal Services? 17. A voluntary surrender of a pet is a very unfortunate situation and usually happens when an owner can no longer care for the pet or no longer wants the pet. Most of the surrendered pets are euthanized unless adopted within a few days. The web site reads: TO ALL OWNERS: Upon signing ownership over to Toronto Animal Services, the final disposition (e.g. adoption, transfer to rescue group or euthanasia) of the animal will be made by Toronto Animal Services and you will not be contacted to be advised of the disposition. 12 EVENTS WHICH TOOK PLACE AT TORONTO ANIMAL SERVICES 18. A By-law enforcement officer interviewed Yasmin and issued a ticket under Municipal Code by-law Chapter 349 ( the Code ).The offence is described on the ticket as keeping a prohibited animal namely a monkey. The fine was set at $ The officer refused to return Darwin or allow Yasmin to see him. He said that Yasmin could not own Darwin because of the by-law. He told her that the police were involved and that Darwin may have diseases Exhibit E and paras. 7-8 of the Affidavit. 11 Paras of the Affidavit. 12 Exhibit E of the Affidavit. 13 Exhibits B and I and para. 9 of the Affidavit. 14 Para. 10 of the Affidavit.

7 7 20. The officer said he would not lay criminal charges and would allow Yasmin to see Darwin if she would just sign the surrender form Yasmin initially refused to sign but ultimately signed the Surrender Form. She signed under duress and induced by misrepresentations by the officer Yasmin was very concerned with the prospect of criminal charges as this would impact her livelihood and reputation. She also desperately wanted to see and be able to comfort Darwin. The officer must have known and intended that his comments would induce her to sign the Surrender Form. The threats of criminal charges and not being able to see Darwin did induce Yasmin to sign the Surrender Form After signing the Surrender Form, Yasmin was taken in to see Darwin who was very happy to see her and Samar. Yasmin changed his diaper, took off his coat and hugged him. She asked the worker to leave the coat in the cage so he would find some comfort from a familiar object. That was the last time Yasmin saw Darwin The Code prohibits persons from keeping prohibited animals in Toronto. Darwin is a prohibited animal according to schedule A. The Code contains a section entitled Article IX Offences, which provides that any person who contravenes any provision of this Chapter is guilty of an offence under the Provincial Offences Act and liable for a fine of not more than $ The Code authorizes a provincial offences officer to issue a fine, which is precisely what the officer at Animal Services did Para. 11 and Exhibit C (the Surrender Form ) of the Affidavit. 16 Paras of the Affidavit. 17 Paras and 18 of the Affidavit. 18 Paras of the Affidavit. 19 Exhibit I to the Affidavit. 20 Paras of the Affidavit.

8 8 26. Nowhere in the Code is the officer empowered to impound a Schedule A animal. There are provisions for the impoundment of cats and dogs running at large but not monkeys. The officer had no basis under the Code to withhold Darwin when Yasmin came to pick him up. 27. Other jurisdictions, for example Mississauga s animal control by law, do empower an animal control officer to impound the prohibited animal. In contrast Toronto decided that the penalty would only be a fine. There was nothing in the by-law to stop Yasmin from being reunited with Darwin. She should have taken Darwin home where she could contest or pay the ticket and consider the family s options, so as not to run afoul of the by law again While the Code is a by-law that prohibits keeping a monkey in Toronto, the Code does not prohibit a Torontonian from owning a monkey. The by law officer said that Yasmin could not own a monkey which is false Criminal charges can be laid by an inspector or agent who is duly appointed under the Ontario Society for the Protection of Cruelty to Animals Act (OSPCA).This provincial body enforces the provisions of the OSPCA. It does not enforce the Toronto ticketing by-law The OSPCA is concerned with serious abuse and neglect of animals as defined in section 445 (1) (1) of the Criminal Code of Canada. The officer must have been alluding to this section of the Criminal Code when he threatened Yasmin with criminal charges. There were no reasonable or probable grounds to consider laying a charge under the Criminal Code assuming the by law officer even had the authority to do so, which is unlikely. Darwin has never been abused. To the contrary, he was a perfectly healthy and happy monkey who was very well cared for Exhibit J and para. 27 of the Affidavit. 22 Para. 9 of the Affidavit. 23 Ontario Society for the Prevention of Cruelty to Animals Act, R.S.O. 1990, c. O.36, s Paras of the Affidavit.

9 9 32. The by-law officer must have known there was absolutely no prospect of criminal charges when he coerced Yasmin into signing the form. 25 STORY BOOK FARMS AND SHERRI DELANEY 33. Story Book is a registered charity operated by its director Sherri Delany from a farm in Sunderland Ontario. The defendants issued a press release on December 11, two days after Darwin was taken at IKEA. The press release includes a number of comments from Ms. Delaney concerning the issue of exotic animals as pets and how people do not realize than monkeys do not make good pets raising them as humans is detrimental to their development, mental and social well-being. The press release goes on to say: While images of Darwin in a coat and diapers appear to indicate that he is well cared for, albeit unnatural, even with the best intentions owners are not equipped to handle a mature monkey with large canines who will demonstrate natural aggressive behaviors and tendencies. We are frequently contacted by owners who can no longer handle their pet monkey and need to relinquish them for safety purposes-this could have been Darwin in a few years if he hadn t escaped.. Municipalities are left to determine which animals are considered illegal and on what grounds. It is illegal for Toronto residents to own non-human primates, and so Darwin will not be returning to his previous owner, Yasmin Nakhuda Based on the press release and the widespread media attention, it is quite apparent that Ms. Delaney took possession of Darwin knowing that Yasmin wanted him back and knowing she was the owner. The reason Ms. Delaney refuses to return Darwin is somewhat less obvious Paras of the Affidavit. 26 Exhibits F and H and paras of the Affidavit. 27 Para. 28 of the Affidavit.

10 Ms. Delaney is a strong advocate for primate rights and does not believe that monkeys should be kept as pets. Her beliefs are clearly influencing her refusal to return Darwin. 36. But her beliefs are not the only factor in play. Story Book Farms moved very quickly to secure Darwin, and then issued a press release in the center of a media frenzy. Story Book has also revamped their web site and set up a Facebook page for Darwin the IKEA monkey, to secure publicity and donations. One can purchase a photo of Darwin on line for a donation of $100 Dollars for Darwin Story Book has a stated purpose of providing a home to unwanted or abused primates. Darwin is clearly not an unwanted or abused primate. Even Ms. Delaney stated in the press release that he was well cared for. He is wanted by his family and he is not abused. Therefore the only possible reason for not returning Darwin is Ms. Delaney s animal rights viewpoint or perhaps the prospect of drumming up donations Aside from the frustration of having to read and hear from Ms. Delaney about what she thinks is in the best interests of Darwin, while she sells new images of Darwin at the farm on line, Yasmin has also been denied any kind of access to him. The family has undergone a tremendous amount of stress and anxiety over the loss of their pet and the defendants refusal to return him As a young baby monkey who considered Yasmin to be his mother, Darwin must be in a great deal of distress having been torn away from his owner and the only family he knows. The longer Darwin is kept from Yasmin the more likely the bond will be severed as Darwin forgets or worse comes to believe that Yasmin has abandoned him Exhibit K and para. 26 of the Affidavit. 29 Paras of the Affidavit. 30 Paras. 25 and 29 of the Affidavit. 31 Paras of the Affidavit.

11 11 PART III LAW AND ARGUMENT 40. Under the common law of Ontario animals are still considered to be personal property. Ownership of pets entails the same rights as does ownership of other tangible personal property The test on a motion for interim recovery of personal property pursuant to Rule 44 and Section 104 of the CJA is in many ways similar to that of an injunction. The first part of the test is somewhat higher than the serious issue to be tried test on interlocutory injunctions but the threshold is lower than the strong prima facie test. In effect, the onus is on the moving party to establish that the facts, if proven at trial, afford substantial grounds to support the claim The facts that afford Yasmin substantial grounds are that she is without doubt the owner of Darwin, subject only to the argument that she surrendered him to Animal Services, who in turn gifted him to the defendants. 43. But there is substantial evidence to allow this Court to conclude, with a high degree of assurance, that the trial judge would reject any transfer of title based on the Surrender Form. It makes no sense for Yasmin to surrender Darwin. She has filed affidavit evidence of being coerced and threatened into signing the form which seems much more likely than her abandoning the pet she loves. 44. The Ontario Court of Appeal in Stott v. Merit Investment Corp. described the type of pressure required in order to make a claim for duress as follows: 32 Vallance v. Naaykens, [2001] B.C.J. No. 959 (B.C. S.C.) at para. 6. Ireland v. Ireland, [2010] S.J. No. 756 (Q.B.) at paras. 8 & 12. Ferguson v. Birchmount Boarding Kennels Ltd., [2006] O.R. No. 300, 79 O.R. (3d) 681 (S.C.J.) at para. 18. Nevelson v. Murgaski, [2006] O.J. No (Sup Ct). (Sm. Cl. Div.)) at para. 25. Arnold v. Bekkers Pet Care Inc., [2010] O.J. No (Sup Ct. (Sm. Cl. Div.) at paras Courts of Justice Act, R.R.O. 1990, c. C-43, s Rules of Civil Procedure, R.R.O. 1990, Reg. 194, R. 44. Clark Door of Canada Ltd. v. Inline Fiberglass Ltd. (1996), 45 C.P.C. (3d) 244 (Ont. Gen. Div.) at para. 23.

12 12 It must be a pressure which the law does not regard as legitimate and it must be applied to such a degree as to amount to "a coercion of the will", to use an expression found in English authorities, or it must place the party to whom the pressure is directed in a position where he has no "realistic alternative" but to submit to it Where duress has been established, it has the effect of vitiating consent and an agreement obtained through duress is voidable at the instance of the party subjected to the duress unless by another agreement or through conduct, either express or implied, she affirms the impugned contract at a time when she is no longer the victim of the duress The general rule of law (the nemo dat rule) is that when a person has obtained the property of another, from one who is dealing with it without the authority of the true owner, no title is acquired as against the true owner. Hence, if the Surrender Form is void, then Animal Services did not have the authority to transfer or gift the animal to the defendants. In turn, the defendants cannot have acquired title The exception to the general rule requires the person taking the property (the defendants) to show that the true owner acted so as to mislead him or her into the belief that the person with the property (Animal Services) had the authority to transfer title Yasmin did not mislead anyone. She has consistently identified herself as Darwin s owner and said she wants him back. The defendants press release demonstrates that the defendants were aware of the controversial circumstances in which Darwin was transferred to them. 34 Stott v. Merit Investment Corp. (1988), 63 O.R. (2d) 545 (C.A.) at para Ibid. 36 Canaplan Leasing Inc. v. Dominion of Canada General Insurance Co. [1990] B.C.J. No. 914 (S.C.). 37 Ibid.

13 This exception to the nemo dat rule, it is respectfully submitted, is an extension of the equitable defence that a bona fide purchaser for value and without notice of someone else s equitable interest, may receive legal title of a good transferred to him or her This defence requires, however, that the defendants did not have notice of Yasmin s equitable title over Darwin, which they did have, but also that Darwin was given to them for value because equity will not assist a volunteer. It is respectfully submitted that the defendants both had knowledge of Yasmin s equitable title over Darwin and that Darwin was gifted to the defendants without any money being received by Animal Services Therefore, because the defendants had knowledge of facts that suggest that the owner did not intend to part with the property, the general rule of nemo dat prevails. Similarly, because the property was gifted to the purchaser the general rule also prevails. BALANCE OF CONVENIENCE 52. The plaintiff must also satisfy the test that the balance of convenience favours ordering the plaintiff have possession of the property and the defendant be deprived of it. The exercise is to weigh the benefit to the plaintiff against the burden on the defendant. Irreparable harm is a key factor. 53. Unlike claims over inanimate property, competing claims over pets may take into account a broader range of factors. Abuse of the pet, as defined under 38 Corkum v. Dagley, 2005 NSSC 126 at paras and i Trade Finance Inc. v. Bank of Montreal, 2011 SCC 26, [2011] 2 S.C.R. 360 at paras Ibid.

14 14 the OSPCA will be a relevant factor. Anxiety and stress experienced by the pet owner is another factor When considering what is in the best interests of the animal the court will usually focus on whether there has been any abuse by the parties within the meaning of animal protection legislation. The best interests of the animal, who is property under the common law, is constrained to situations where there has been abuse The notion that a pet may be better off in one environment or another is not part of the law and indeed cannot be unless animal rights are extended beyond legislation designed to prevent cruelty. For example, dogs may be better off on a farm where they can run free than in a bachelor sized apartment but they do not get a say in the matter. 56. Currently, Yasmin and her family are experiencing anxiety and stress because of the loss of Darwin. Mental distress from the loss of a pet is a recognized head of damages and is accepted as a genuine factor in determining who should be in possession of the pet. 57. There will be irreversible prejudice if Darwin is not returned because Yasmin and the family will continue to experience anxiety and they will lose the bond they have with Darwin by the time this matter reaches trial. Therefore, the balance of convenience favors returning him to the plaintiff. 58. There is no prejudice to the defendants and certainly no irreversible prejudice. This is not a situation where we have two competing pet owners, such as in a custody dispute over a pet in a divorce. Ms. Delaney s only connection to the animal is her animal rights philosophy. By Ms. Delaney s own admission, it is 40 Watson v. Hayward, [2002] B.C.J. No (Prov. Ct.) at paras Ibid.

15 15 not until some years from now when Darwin is an adult that any of her stated concerns even arise. 59. In the alternative, Yasmin and her family should have regular unsupervised access to Darwin based on a schedule. This is a most unattractive alternative given the distance from Toronto to Sunderland. PART IV - RELIEF SOUGHT 60. The plaintiff respectfully requests that this motion be allowed and Darwin returned to the plaintiff. ALL OF WHICH IS RESPECTFULLY SUBMITTED ON DECEMBER 17, 2012 Theodore P. Charney Falconer Charney LLP 8 Prince Arthur Avenue Toronto, ON M5R 1A9 Lawyers for the Plaintiff

16 16 SCHEDULE A 1. Arnold v. Bekkers Pet Care Inc., [2010] O.J. No (Sup Ct. (Sm. Cl. Div.)). 2. Canaplan Leasing Inc. v. Dominion of Canada General Insurance Co., [1990] B.C.J. NO. 914 (S.C.). 3. Clark Door of Canada Ltd. v. Inline Fiberglass Ltd. (1996), 45 C.P.C. (3d) 244 (Ont. Gen. Div.). 4. Corkum v. Dagley, 2005 NSSC Ferguson v. Birchmount Boarding Kennels Ltd., [2006] O.R. No. 300, 79 O.R. (3d) 681 (S.C.J.). 6. i Trade Finance Inc. v. Bank of Montreal, 2011 SCC 26, [2011] 2 S.C.R Ireland v. Ireland, [2010] S.J. No. 756 (Q.B.). 8. Nevelson v. Murgaski, [2006] O.J. No (Sup Ct. (Sm. Cl. Div.)). 9. Stott v. Merit Investment Corp. (1988), 63 O.R. (2d) 545 (C.A.). 10. Vallance v. Naaykens, [2001] B.C.J. No. 959 (S.C.). 11. Watson v. Hayward, [2002] B.C.J. No (Prov. Ct.)

17 17 SCHEDULE B Courts of Justice Act, R.R.O. 1990, c.c-43, Section 104 Interim order for recovery of personal property 104.(1)In an action in which the recovery of possession of personal property is claimed and it is alleged that the property, or (a) was unlawfully taken from the possession of the plaintiff; (b) is unlawfully detained by the defendant, the court, on motion, may make an interim order for recovery of possession of the property. Damages (2)A person who obtains possession of personal property by obtaining or setting aside an interim order under subsection (1) is liable for any loss suffered by the person ultimately found to be entitled to possession of the property. R.S.O. 1990, c. C.43, s. 104.

18 18 Ontario Society for the Prevention of Cruelty to Animals Act, R.S.O 1990, c.o.36, Section 11 Inspectors and agents Powers of police officer 11. (1) For the purposes of the enforcement of this Act or any other law in force in Ontario pertaining to the welfare of or the prevention of cruelty to animals, every inspector and agent of the Society has and may exercise any of the powers of a police officer. 2008, c. 16, s. 7 (1). Inspectors and agents of affiliates (2) Every inspector and agent of an affiliated society who has been appointed by the Society or by the Chief Inspector of the Society may exercise any of the powers and perform any of the duties of an inspector or an agent of the Society under this Act and every reference in this Act to an inspector or an agent of the Society is deemed to include a reference to an inspector or agent of an affiliated society who has been appointed by the Society or by the Chief Inspector of the Society. 2008, c. 16, s. 7 (2). Local police powers (3) In any part of Ontario in which the Society or an affiliated society does not function, any police officer having jurisdiction in that part has and may exercise any of the powers of an inspector or agent of the Society under this Act. R.S.O. 1990, c. O.36, s. 11 (3). Identification (4) An inspector or an agent of the Society who is exercising any power or performing any duty under this Act shall produce, on request, evidence of his or her appointment. 2008, c. 16, s. 7 (3). Interfering with inspectors, agents (5) No person shall hinder, obstruct or interfere with an inspector or an agent of the Society in the performance of his or her duties under this Act. 2008, c. 16, s. 7 (3).

19 19 Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 44 RULE 44 - INTERIM RECOVERY OF PERSONAL PROPERTY MOTION FOR INTERIM ORDER (1) An interim order under section 104 of the Courts of Justice Act for recovery of possession of personal property may be obtained on motion by the plaintiff, supported by an affidavit setting out, (a) a description of the property sufficient to make it readily identifiable; (b) the value of the property; (c) that the plaintiff is the owner or lawfully entitled to possession of the property; (d) that the property was unlawfully taken from the possession of the plaintiff or is unlawfully detained by the defendant; and (e) the facts and circumstances giving rise to the unlawful taking or detention. R.R.O. 1990, Reg. 194, r (1). (2) The notice of motion shall be served on the defendant unless the court is satisfied that there is reason to believe that the defendant may improperly attempt to prevent recovery of possession of the property or that, for any other sufficient reason, the order should be made without notice. R.R.O. 1990, Reg. 194, r (2). ORDER TO CONTAIN DESCRIPTION AND VALUE OF PROPERTY An interim order for recovery of possession of personal property shall contain a description of the property sufficient to make it readily identifiable and shall state the value of the property. R.R.O. 1990, Reg. 194, r DISPOSITION OF MOTION Where Made on Notice (1) On a motion for an interim order for recovery of possession of personal property made on notice to the defendant, the court may, (a) order the plaintiff to pay into court as security twice the value of the property as stated in the order, or such other amount as the court directs, or to give the appropriate sheriff security in such form and amount as the court approves, and direct the sheriff to take the property from the defendant and give it to the plaintiff;

20 20 (b) order the defendant to pay into court as security twice the value of the property as stated in the order, or such other amount as the court directs, or to give the plaintiff security in such form and amount as the court approves, and direct that the property remain in the possession of the defendant; or (c) make such other order as is just. R.R.O. 1990, Reg. 194, r (1). Where Made Without Notice (2) On a motion for an interim order for the recovery of possession of personal property made without notice to the defendant, the court may, (a) order the plaintiff to pay into court as security twice the value of the property as stated in the order, or such other amount as the court directs, or to give the appropriate sheriff security in such form and amount as the court approves, and direct the sheriff to take and detain the property for a period of ten days after service of the interim order on the defendant before giving it to the plaintiff; or (b) make such other order as is just. R.R.O. 1990, Reg. 194, r (2). CONDITION AND FORM OF SECURITY (1) Where an interim order for the recovery of possession of personal property requires either party to give security, the condition of the security shall be that the party providing the security will return the property to the opposite party without delay when ordered to do so, and pay any damages and costs the opposite party has sustained by reason of the interim order. R.R.O. 1990, Reg. 194, r (1). (2) Where the security is by bond, the bond shall be in Form 44A and shall remain in force until the security is released under rule R.R.O. 1990, Reg. 194, r (2). (3) Where the bond is to be given by a person other than an insurer licensed under the Insurance Act to write surety and fidelity insurance, the person giving the bond shall first be approved by the court. R.R.O. 1990, Reg. 194, r (3); O. Reg. 570/98, s. 2. SETTING ASIDE ORDER The court on motion may set aside or vary an interim order for the recovery of possession of personal property or stay enforcement of the order. R.R.O. 1990, Reg. 194, r RELEASE OF SECURITY

21 Any security furnished pursuant to an order made under rule may be released on the filing of the written consent of the parties or by order of the court. R.R.O. 1990, Reg. 194, r DUTY OF SHERIFF (1) Before proceeding to enforce an interim order for the recovery of possession of personal property, the sheriff shall ascertain that any security required by the order has been given. R.R.O. 1990, Reg. 194, r (1). (2) The sheriff shall serve the order on the defendant when the property or any part of it is recovered or as soon thereafter as is possible. R.R.O. 1990, Reg. 194, r (2). (3) Where the sheriff is unable to comply with the order, or it is dangerous to do so, the sheriff may move for directions from the court. R.R.O. 1990, Reg. 194, r (3). (4) The sheriff shall, without delay after attempting to enforce the order and in any event within ten days after service of the order, report to the plaintiff on what property has been recovered and, where the sheriff has failed to recover possession of all or part of the property, on what property has not been recovered and the reason for his or her failure to recover it. R.R.O. 1990, Reg. 194, r (4). WHERE DEFENDANT PREVENTS RECOVERY Where the sheriff reports that the defendant has prevented the recovery of all or part of the property, the court may make an order, (a) directing the sheriff to take any other personal property of the defendant, to the value of the property that the sheriff was prevented from recovering, and give it to the plaintiff; and (b) directing the plaintiff to hold the substituted property until the defendant surrenders to the plaintiff the property that the sheriff was prevented from recovering. R.R.O. 1990, Reg. 194, r