Bill 49 — Second Session, 23Rd Legislature, 43 Elizabeth Ii the Legislative Assembly of Alberta Bill 49 Civil Enforcement Act (Legislature 23, Session 2)

L23 S2 2202

Alberta — Bills

1994 BILL 49 Second Session, 23rd Legislature, 43 Elizabeth II THE LEGISLATIVE ASSEMBLY OF ALBERTA BILL 49 CIVIL ENFORCEMENT ACT MR. DUNFORD First Reading Second Reading Committee of the Whole Third Reading Royal Assent Title: 1994 (23rd, 2nd) Bill 49, Civil Enforcement Act

Bill 49 Mr. Dunford BILL 49 1994 CIVIL ENFORCEMENT ACT (Assented to , 1994) Table of Contents

Definitions,

interpretations and application 1

Part 1 General General principles 2 Crown is bound 3 Failure to comply 4 Applications to Court 5 Service of documents 6 Discontinuance of proceedings 7 Execution of documents, etc. 8

Part 2 Civil Enforcement Agencies and Bailiffs Civil enforcement agencies 9 Civil enforcement bailiffs 10 Not a Crown agent 11 Provision of services 12 Conditions governing civil enforcement proceedings 13 Complaints 14 Offence 15

Part 3 Prejudgment Relief

Definitions 16 Attachment order 17 Ex parte attachment order 18 Termination of attachment order 19 Provision of alternative security 20 Sale, etc. of attached property 21 Registration of attachment order 22 Priorities 23 1

Commencement, etc. of writ proceedings 24 Inconsistent actions 25

Part 4 Judgments and Writs Division 1 Registration Registration required 26 When writ is in force 27 Duration of registration in Personal Property Registry 28 Duration of registration under the Land Titles Act 29 Error or omission re writ 30 Division 2 Binding Effect of Writs

Definitions 31 Knowledge of writ 32 When writ binds 33 Subordination of subsequent interests 34 Priority between writs and security interests 35 Disposition of goods 36 Fixtures and growing crops 37 Negotiable instruments 38 Market securities 39 Priority of liens 40 Effect of seizure 41 Interaction between writs 42

Part 5 Seizure of Personal Property Applies to all exigible personal property 43 Demand on third person 44 Effecting seizure 45 Objection 46 Termination of seizure 47 Sale of property, etc. 48

Part 6 Special Seizure Mechanisms Application of

Part 49 Division 1 Property Other than Securities Cash and instruments 50 Secured obligations 51 Agricultural products 52 Fixtures 53 2

Serial number goods 54 Mobile homes 55 Division 2 Securities

Definitions 56 Effecting seizure 57 Duties of issuer 58 Duties of intermediary 59 Liability of issuer or intermediary 60 Liquidation of security 61 Liquidation procedure re non-market securities 62 Execution of transfer documents 63 Missing security certificate 64 Effect of transfer 65 Foreign issuers 66

Part 7 Land Applies to all land 67 Instruction to sell 68 Method of sale 69 Notice of intention to sell 70 Growing crops 71 Waiting period 72 Exemption 73 Sale of land 74 Transfer of land 75 Severance of joint tenancy, etc. 76

Part 8 Garnishment

Definitions and

interpretation 77 General principles re garnishment 78 When garnishee summons is in effect 79 Discretionary exemption 80 Employment earnings 81 Joint entitlement 82 Deposit accounts 83 Conditional obligations 84

Part 9 Receivers and Special Remedies Court appointed remedies 85 Considerations re appointment of receivers 86 Receivers 87 3

Part 10 Exemptions Exempted property 88 Property exceeding exempted values 89 Selection of property 90 Determination of exemption 91 Estate 92 Non-applicability of

Part 93

Part 11 Distributions Definition 94 Claim to be treated as a writ 95 Applies to all distributions 96 Distributable fund 97 Money derived from exempted property 98 Eligible claims 99 Distributable fund exceeds claims, etc. 100 Claims exceed a distributable fund 101 Liability 102 Funds protected by court proceedings 103

Part 12 Distress Distress by landlord 104 Distress by mortgagee, etc. 105

Part 13 Regulations and Rules of Court Regulations 106 Rules of Court 107

Part 14 Transitional, Consequential, Repeal and Commencement Division 1 Transitional Deemed references 108 Transitional provisions 109 Division 2 Consequential Consequential amendments 110-170 4

Division 3 Repeal and Commencement Repeal 171 Coming into force 172 HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Alberta, enacts as follows:

Definitions,

interpretation and application 1(1) In this Act, (a) “accessions” means goods that are installed in or affixed to other goods; (b) “agency” means a person who is authorized pursuant to an agreement entered into under

Part 2 to operate a civil enforcement agency and includes a sheriff where the sheriff is acting pursuant to

section 9(7); (c) “agricultural products” includes (

i) crops or livestock, and (ii) products of crops or livestock in their unmanufactured states, while in the possession of a person engaged in growing, raising, fattening, grazing or other agricultural operations; (d) “bailiff’ means a civil enforcement bailiff appointed under

Part 2; (e) “building materials” means materials that are incorporated into a building and includes goods attached to a building so that their removal (

i) would necessarily involve the dislocation or destruction of some other part of the building and cause substantial damage to the building, apart from the loss of value of the building resulting from the removal, or (ii) would result in weakening the structure of the building or exposing the building to weather damage or deterioration, but does not include heating, air conditioning or conveyancing devices or machinery installed in a building 5

or on land for use in carrying on an activity inside the building or on the land; (f) “chattel paper” means one or more writings that evidence both an obligation and a security interest in or lease of specific goods or specific goods and accessions, but does not include a security agreement providing for a security interest in specific goods and after-acquired goods other than accessions; (g) “civil enforcement proceedings” includes (

i) writ proceedings; (ii) distress proceedings authorized under this Act or any other law that is in force in Alberta; (iii) evictions authorized pursuant to a law in force in Alberta or an order of a Court; (h) “clearing agency” means an entity that provides (

i) centralized facilities for the clearing of trades in securities, or (ii) centralized facilities as a depository in connection with the clearing of trades in securities, and includes a nominee of that entity; (i) “clerk” means the clerk of the Court; (j) “Court” means the Court of Queen’s Bench; (k) “crops” means crops whether matured or otherwise, and whether naturally grown or planted, attached to land by roots or forming part of trees or plants attached to land, but includes trees only if they are (

i) nursery stock, (ii) trees being grown for uses other than the production of lumber or wood products, or (iii) trees being grown for use in reforestation of land other than the land on which the trees are growing; (1) distress means anything done to exercise (

i) a right of a landlord to distrain for unpaid rent, 6

(ii) a right of a lessor of personal property to repossess, (iii) a right of a secured party to enforce a security interest under

section 56(1)(

a) or 58(1) of the Personal Property Security Act, (iv) a right to take possession of personal property under an order of the Court, (

v) a right of distress under an enactment, or (vi) any other right under a law in force in Alberta to take personal property out of the possession of a person other than under the authority of a writ; (m) “distribute” means pay out in accordance with

Part 11; (n) “document of title” means a writing issued by or addressed to a bailee (

i) that covers goods in the bailee’s possession that are identified or are fungible portions of an identified mass, and (ii) in which it is stated that the goods in the bailee’s possession that are identified in it will be delivered to a named person, or to the transferee of the person, to bearer or to the order of a named person; (o) “enforcement creditor” means a person in whose favour a writ is in force; (p) “enforcement debt” means an amount outstanding on a money judgment in respect of which a writ is in force; (q) “enforcement debtor” means a person against whom a writ is in force; (r) “eviction” means anything done to enforce the right to take physical possession of premises or land; (s) “exempt” means not subject to writ proceedings or, in the case of distress proceedings, not subject to distress proceedings; (t) “exigible” means subject to writ proceedings; (u) “fixture” means tangible personal property that has been annexed to land and that is regarded in law as part of the land to which it has been annexed, but does not include building materials; 7

(v) “goods” means tangible personal property other than chattel paper, a document of title, an instrument, a security certificate and money, and includes fixtures, growing crops and the unborn young of animals, but does not include trees that are crops until they are severed or minerals until they are extracted; (w) “instructing creditor” means the enforcement creditor on whose instructions certain writ proceedings are taken or continued; (x) “instrument” means (

i) a bill, note or cheque within the meaning of the Bills of Exchange Act (Canada), (ii) any other writing that evidences a right to the payment of money and is of a kind that in the ordinary course of business is transferred by delivery with any necessary endorsement or assignment, or (iii) a letter of credit or an advice of credit if the letter or advice states that it must be surrendered on claiming payment under it, but does not include (iv) chattel paper, a document of title or a security certificate, or (

v) a writing that provides for or creates a mortgage or charge in respect of an interest in land that is specifically identified in the writing; (y) “judgment” includes any order, decree, duty or right that may be enforced as or in the same manner as a judgment of the Court; (z) “judgment creditor” means a person who has a money judgment; (aa) “land” includes any interest in land, but does not include growing crops; (bb) “market security” means (

i) a share, unit or other ownership interest in a corporation, partnership, association, organization, trust or fund, 8

(ii) an obligation of any person or entity, including a corporation, partnership, association, organization, government, trust or fund, or (iii) a right to acquire or to sell an interest or obligation referred to in subclause (

i) or (ii) that is one or part of a class or series (iv) listed and posted for trading on a securities exchange, or (

v) for which values or prices routinely appear in published securities market reports or in quotation services used by securities dealers; (cc) Minister means the member of the Executive Council who is charged with the administration of this Act; (dd) “mobile home” means (

i) a vacation trailer or house trailer, or (ii) a structure, whether ordinarily equipped with wheels or not, that is constructed or manufactured (

A) to be moved from one point to another by being towed or carried, and (

B) to provide living accommodation for one or more persons; (ee) “money judgment” means a judgment requiring a person to pay money or that part of a judgment that requires a person to pay money; (ff) “obligation” means a legal or equitable duty to pay money; (gg) “perfected” means, in respect of a security interest, perfected in accordance with the Personal Property Security Act; (hh) “person”, when used to refer to a creditor, includes the Crown except where the context otherwise requires; (ii) “personal property” means property other than land; (jj) “Personal Property Registry” means the Personal Property Registry established under the Personal Property Security Act; 9

(kk) “property” includes (

i) things, as well as rights or interests in things, (ii) anything regarded in law or equity as property or as an interest in property, (iii) any right or interest that can be transferred for value from one person to another, (iv) any right, including a contingent or future right, to be paid money or receive any other kind of property, and (

v) any cause of action; (ll) “related writ” means (

i) in respect of a particular enforcement debtor, a writ that would be disclosed if a search was conducted of the Personal Property Registry using the name of that debtor as shown on the instructing creditor’s writ, and (ii) in respect of a defendant under

Part 3, a writ that would be disclosed if a search was conducted of the Personal Property Registry using the name of that defendant as shown on the attachment order; (mm) “secured obligation” means an obligation secured by an interest in property; (nn) “security certificate” means, except in

Part 6, a writing that is (

i) in bearer, order or registered form, (ii) of a kind commonly dealt in on securities exchanges or markets or commonly recognized in any area in which it is issued or dealt in as a medium for investment, (iii) one of a class or series or by its terms divisible into a class or series, and (iv) evidence of a share, participation or other interest in or obligation of the issuer of the writing, but does not include a writing that provides for or creates a mortgage or charge in respect of an interest in land that is specifically identified in the writing; 10

(oo) “seizure documents” means the documents prescribed by regulation for the purposes of instructing an agency to carry out a seizure of personal property; (pp) “serial number goods” means serial number goods as defined in the regulations made under the Personal Property Security Act; (qq) “sheriff’ means a person designated as a sheriff by the Minister, (rr) “third person” means, other than in

Part 3, a person affected by writ proceedings other than the enforcement debtor or an enforcement creditor with a related writ; (ss) “writ” means a writ of enforcement; (tt) “writ proceedings” means any action, step or measure authorized by this Act to be taken for the purpose of enforcing a money judgment.

(2) For the purposes of this Act, (

a) an individual is deemed to know or have knowledge of a matter when information in respect of that matter is acquired by the individual under circumstances in which a reasonable person would take cognizance of the information; (

b) a limited partnership is deemed to know or have knowledge of a matter when information in respect of that matter has come to the attention of one of the general partners or a person having control or management of the partnership business under circumstances in which a reasonable person would take cognizance of the information; (

c) a partnership, other than a limited partnership, is deemed to know or have knowledge of a matter when information in respect of that matter has come to the attention of one of the partners or a person having control or management of the partnership business under circumstances in which a reasonable person would take cognizance of the information; (

d) a corporation is deemed to know or have knowledge of a matter when information in respect of that matter has come to the attention of (

i) an officer of the corporation, or 11

(ii) a senior employee of the corporation with responsibility for matters to which the information relates, under circumstances in which a reasonable person would take cognizance of the information or when the information in writing has been delivered to the registered office of the corporation or attorney for service for the corporation; (

e) the members of an association are deemed to know or have knowledge of a matter when information in respect of that matter has come to the attention of (

i) an officer of the association, (ii) a senior employee of the association with responsibility for matters to which the information relates, or (iii) all the members, under circumstances in which a reasonable person would take cognizance of the information; (

f) the Crown is deemed to know or have knowledge of a matter when information in respect of that matter has come to the attention of a senior employee of the Crown with responsibility for the matters to which the information relates under circumstances in which a reasonable person would take cognizance of the information.

(3) A reference in this Act to “this Act” or “this enactment” includes a reference to the regulations made under this Act.

(4) A reference in this Act to a specific provision or Part of this Act includes a reference to any regulations made under this Act in respect of any matters that are the subject of that provision or Part.

PART 1 GENERAL General principles2 The following applies with respect to the carrying out of civil enforcement proceedings: (

a) except as otherwise provided for in another enactment, (

i) a money judgment may only be enforced, and 12

(ii) a seizure or eviction may only be carried out, in accordance with this Act; (

b) except as otherwise provided for in this or any other enactment, all property of an enforcement debtor is subject to writ proceedings under this Act; (

c) on registration of a writ in the Personal Property Registry, that writ may be enforced anywhere in Alberta and any civil enforcement proceedings in respect of that writ may be carried out without regard to judicial districts or other geographical divisions within Alberta; (

d) except as otherwise specifically provided by this or any other Act, all writ proceedings are deemed to be taken on behalf of and for the benefit of all the enforcement creditors of an enforcement debtor; (

e) except as provided in any other enactment, a person may not be arrested or imprisoned for default in payment of a money judgment; (

f) subject to clauses (

h) and (

i) and

Part 2, anything done by an agency or a bailiff with the written consent of all interested persons is deemed to have been done in accordance with this Act; (

g) all rights, duties and functions of creditors, agencies and bailiffs under this Act must be exercised or discharged in good faith and in a commercially reasonable manner; (

h) any waiver by a debtor of any right or duty under this Act is void if it was given before the right or duty arose; (

i) a waiver by a debtor of any exemption given by this Act is void; (

j) nothing in this

section shall be construed so as to prevent a judgment creditor from soliciting or accepting payment from a judgment debtor. Crown is bound 3(1) This Act binds the Crown in exercising any rights or remedies as a creditor in civil enforcement proceedings.

(2) Notwithstanding subsection (1), nothing in this Act prevents the Crown from collecting a debt through proceedings otherwise available to the Crown under its prerogative or any other enactment. 13

Failure to comply 4 A person who has suffered loss or damage as a result of another person’s failure to comply with this Act (

a) has a cause of action against that other person with respect to that failure, and (

b) is entitled, if the Court finds that the person has suffered loss or damage, to a judgment for the damages suffered or $200, whichever is greater, Applications to Court 5(1) The Court may, on application by an interested party or an agency, give directions in respect of or determine any matter or issue that arises out of any civil enforcement proceedings.

(2) On considering an application under this Act, the Court may do any one or more of the following: (

a) make any order, including a binding declaration of right and injunctive relief, that is necessary to ensure compliance with this Act or to ensure protection of the interests of any person in property that is subject to civil enforcement proceedings; (

b) give directions to any person regarding the exercise of that person’s rights or performance of that person’s functions or duties under this Act; (

c) give directions respecting the carrying out of civil enforcement proceedings; (

d) stay enforcement of rights provided in this Act; (

e) direct that an enforcement creditor replace another enforcement creditor as the instructing creditor; (

f) abridge any period of time provided for under this Act; (

g) in the case of an application made under a provision of this Act other than subsection (1), give any other order, direction or relief that is permitted or otherwise provided for under that provision; (

h) make an order granted under this Act subject to any terms or conditions that the Court considers appropriate in the circumstances; (

i) except where this Act provides otherwise, make any other order or direction in respect of matters coming under this 14

Act that the Court considers appropriate in the circumstances; (

j) award costs. Service of documents6 A document that is to be served, given or provided to a person under this Act, may be served, given or provided to that person in accordance with the regulations. Discontin uance of proceedings 7(1) Before any seizure is released or any garnishment is discontinued, a notice of the release or the discontinuance must, at least 15 days before the date on which the seizure is to be released or the garnishment is to be discontinued, be served on all the enforcement creditors having related writs at the time that the notice was given.

(2) A notice given under subsection (1) does not need to be served on the instructing creditor except where the notice is being given other than on the instructions of the instructing creditor.

(3) If within 15 days from the day of being served with a notice under subsection (1), an enforcement creditor in writing instructs the agency or, in the case of garnishment, the clerk to continue the proceedings, (

a) the proceedings shall continue, and (

b) where more than one enforcement creditor instructs that the proceedings be continued, the enforcement creditor whose instructions were first received by the agency or, in the case of garnishment, by the clerk is from then on deemed to be the instructing creditor. Execution of documents, etc. 8 For the purposes of dealing with or disposing of property pursuant to this Act, an agency, a bailiff or a receiver appointed under this Act may (

a) do any act or thing that would otherwise have to be done by (

i) an enforcement debtor, or (ii) a person who is subject to distress proceedings. and (

b) execute or endorse any document that would otherwise have to be executed or endorsed by 15

(

i) an enforcement debtor, or (ii) a person who is subject to distress proceedings.

PART 2 CIVIL ENFORCEMENT AGENCIES AND BAILIFFS Civil enforcement agencies 9(1) The sheriff, on behalf of the Crown, may enter into an agreement with a person under which that person is authorized to operate a civil enforcement agency for the purposes of performing the following functions: (

a) the carrying out of seizures of property pursuant to writ proceedings or the right of distress; (

b) the carrying out of evictions; (

c) the selling of property that has been seized pursuant to writ proceedings or the right of distress; (

d) the distribution of the proceeds of sales referred to in clause (

c) to persons who are lawfully entitled to those proceeds; (

e) the carrying out of any other functions or duties provided for or permitted under this or any other enactment or an order of the Court.

(2) In addition to authorizing a person to operate an agency, an agreement entered into under subsection (1) may contain provisions (

a) setting out the terms and conditions under which an agency operates, (

b) governing the suspension or cancellation of the agreement or any of the agency’s operations, (

c) governing the rights and powers of the sheriff respecting access to and the search of any locations and premises of the agency and the removal of any property from that location or those premises, and (

d) governing any other matter respecting the authorization to operate the agency or the operations of the agency.

(3) Unless otherwise permitted by another enactment, only a person who is an agency may carry out the functions referred to in 16

(a) subsection (1)(

a) to (d), in the case of civil enforcement proceedings other than a distress under the Personal Property Security Act, and (b) subsection (1)(a), in the case of a distress under the Personal Property Security Act other than by a receiver.

(4) Notwithstanding subsections (1) and (3), an agency shall use only bailiffs for the purposes of (

a) carrying out seizures, (

b) removing seized property, and (

c) carrying out evictions.

(5) The Court shall not authorize any person who is not an agency to carry out the functions that are to be performed only by an agency under subsection (3).

(6) With respect to serial number goods referred to in

section 54, (

a) a person other than an agency may, notwithstanding this section, effect a seizure of those goods under

section 54(b), but (

b) the removal of the seized goods, the sale of those goods and the distribution of the proceeds of the sale must be carried out by an agency.

(7) The sheriff may, at the direction of the Minister, (

a) carry out those duties and functions that may be carried out by an agency, and (

b) exercise those powers that may be exercised by an agency.

(8) Nothing in this

section shall be construed to restrict the powers of a receiver appointed under

Part 9. Civil enforcement bailiffs 10(1) The sheriff may appoint an individual as a civil enforcement bailiff to carry out, subject to any restrictions or conditions contained in the appointment, (

a) the seizure of personal property, (

b) the removal of seized personal property, (

c) evictions, and 17

(

d) any other functions or duties provided for or permitted under this or any other enactment.

(2) The Court shall not authorize any person who is not a bailiff to carry out the functions of a bailiff referred to in subsection (1)(a), (

b) and (c). Not a Crown agent 11(1) Neither an agency nor a bailiff is an agent of the Crown.

(2) The Crown is not liable for anything done or omitted to be done by an agency or a bailiff. Provision of services 12 The following applies with respect to the carrying out of the duties and functions of agencies and bailiffs: (

a) a bailiff shall only carry out the duties or functions of a bailiff if the bailiff is employed by an agency or is otherwise under contract to an agency to provide bailiff services on behalf of the agency; (

b) civil enforcement proceedings carried out by a bailiff are not invalid by reason only that the bailiff carried out the civil enforcement proceedings at a location that is outside of the area within which the agency for which the bailiff provides bailiff services is permitted to operate; (

c) where an agency has been given written instructions to carry out a duty or function that is permitted pursuant to this Act or another enactment, the agency has the responsibility to carry out that duty or function when (

i) the fees and expenses that are prescribed or agreed to for the carrying out of that duty or function have been paid or arrangements that are satisfactory to the agency for the payment of those fees and expenses have been made, and (ii) subject to the regulations, all reasonable security or indemnification that is requested by the agency for the carrying out of the duty or function has been provided; (

d) on the application of an agency or any interested person, the Court may give directions as it considers appropriate in the circumstances regarding the exercise or performance of any of the agency’s or bailiff's powers, duties or functions under this Act or any other enactment. 18

Conditions governing civil enforcement proceedings 13(1) In this section, “debtor” means a person against whom civil enforcement proceedings may be taken.

(2) For the purposes of carrying out civil enforcement proceedings the following applies: (

a) a bailiff has, subject to clauses (

b) and (c), the right (

i) to enter any location or premises of a debtor for the purposes of carrying out (

A) the seizure and the removal, as the case may be, of property of the debtor, or (

B) the eviction of a debtor, and (ii) where a bailiff has reasonable grounds for believing that personal property of a debtor is located at a location or in premises of a person other than the debtor, to enter that location or those premises for the purposes of carrying out the seizure and the removal, as the case may be, of personal property of the debtor; (

b) a bailiff may use reasonable force for the purposes of gaining access to a location or premises of a debtor, other than a residence; (

c) in the case of a residence of a debtor or any location or premises, including a residence, of a person other than a debtor, a bailiff shall not, (

i) where entry to the residence, location or premises is refused, enter the residence, location or premises, or (ii) use force for the purposes of gaining access to the residence, location or premises, unless authorized to do so by an order of the Court; (

d) a bailiff who has gained lawful entry to a location or premises may gain entry by any means that are appropriate in the circumstances to (

i) any enclosure or container, or (ii) any interior room of the premises; 19

(

e) where a bailiff has used force to gain entry to a location or premises, the bailiff must make that location or premises reasonably secure before leaving the location or premises; (

f) a seizure is valid notwithstanding any irregularity in the procedure by which it was carried out; (

g) notwithstanding clause (f), the Court may order a seizure to be discontinued where the Court is satisfied that a person has been or is likely to be prejudiced by an irregularity in the procedure by which the seizure was carried out; (

h) a bailiff, at the time of seizure or at any time after carrying out the seizure, may remove for safekeeping the personal property that is under seizure; (

i) a bailiff may appoint the debtor or some other person as bailee of the personal property that is under seizure if the debtor or other person signs an undertaking (

i) to hold the property for the bailiff and the agency, and (ii) to deliver up the property to the bailiff or the agency on demand by the bailiff or agency; (

j) a debtor who has possession of or control over personal property that is under seizure and has been served with the seizure documents or the documents authorizing the carrying out of the distress in respect of that property (

i) holds that property as bailee for the bailiff and the agency, and (ii) must deliver that personal property to the bailiff or the agency (

A) when required to do so by the bailiff or the agency, and (

B) at a location specified by the bailiff or agency, whether or not the debtor has signed an undertaking referred to in clause (i); (

k) where a person (

i) is under a duty to deliver to a bailiff or an agency personal property that is under seizure, and 20

(ii) defaults in delivering the personal property to the bailiff or agency within a reasonable time after being required to do so by the bailiff or the agency, the Court on application may hold that person liable for civil contempt and award damages and costs against that person. Complaints14(1) Where the sheriff (

a) receives a complaint with respect to any matter concerning (

i) civil enforcement proceedings or any proceedings that are purported to be civil enforcement proceedings, (ii) the actions or conduct of an agency, any employee or officer of an agency or a bailiff, or (iii) the actions or conduct of any person who is not an agency or a bailiff but is or appears to be involved in carrying out civil enforcement proceedings or any proceedings that are purported to be civil enforcement proceedings, or (

b) has reasonable grounds for believing that (

i) civil enforcement proceedings are not being carried out in accordance with this or any other enactment, (ii) the actions or conduct of any agency, any employee or officer of an agency or a bailiff are not being carried out in accordance with this or any other enactment, or (iii) any agreement between an agency and the Crown is not being complied with, the sheriff may investigate the matter.

(2) Subject to subsection (3), for the purposes of carrying out an investigation under this section, (

a) the sheriff, or a person under the sheriff's direction, may enter any premises or location, unless entry to the premises or location is refused by the occupant of the premises or location, and may do one or more of the following: 21

(

i) inspect (

A) the premises or location, and (

B) any record, object or thing relating to the matter being investigated; (ii) make copies or take photographs of any record, object or thing referred to in subclause (i)(

B) or remove it for the purpose of making copies or taking photographs; (iii) make inquiries of any person in respect of (

A) any record, object or thing referred to in subclause (i)(B), and (

B) any action taken or carried out by an agency, an employee or officer of an agency, a bailiff or other person involved in civil enforcement proceedings or proceedings purported to be civil enforcement proceedings; (

b) notwithstanding clause (a), the sheriff or a person acting under the sheriffs direction shall not enter a residence without the permission of an adult resident of that residence unless otherwise authorized by the Court; (

c) if the sheriff or a person acting under the sheriff's direction removes any record, object or thing under clause (a)(ii), that person must (

i) give to the person from whom the items were taken a receipt for the items, and (ii) as soon as practicable return the items to the person from whom they were taken when they have served the purposes for which they were taken.

(3) In carrying out an investigation under this

section concerning the actions or conduct of any person who is not an agency, an employee or officer of an agency or a bailiff, the sheriff shall only exercise the powers permitted under subsection (2) (

a) with the permission of that person, or (

b) pursuant to an order of the Court.

(4) Where the sheriff or a person acting under the sheriff’s direction has gained lawful entry to premises or a location, a person shall not impede the sheriff or a person acting under the sheriff's 22

direction in the carrying out of any duty or function under this section.

(5) If the sheriff or a person acting under the sheriff's direction (

a) is refused entry to any premises or location, (

b) has reasonable expectation that entry to any premises or location will be refused, (

c) is impeded in any manner from carrying out a duty or function under this section, or (

d) has reasonable grounds to believe that the carrying out of a duty or function under this

section may be impeded, the sheriff may apply to the Court for an order authorizing entry into the premises or location and restraining any person from impeding the carrying out of any duty or function under this section.

(6) Where the sheriff carries out an investigation under this section, the sheriff may, for the purpose of ensuring that this or any other enactment respecting civil enforcement proceedings is being complied with or any agreement between an agency and the Crown is being complied with, issue written directions (

a) directing a person to comply with this or any other enactment; (

b) directing a person to comply with any agreement entered into between that person and the Crown under this Act or in respect of civil enforcement proceedings; (

c) governing the carrying out of civil enforcement proceedings; (

d) requiring a person to adopt certain practices or other procedures; (

e) prohibiting a person from carrying out civil enforcement proceedings or certain practices or procedures respecting civil enforcement proceedings.

(7) Where written directions are issued by the sheriff under subsection (6) and (

a) the person to whom the written directions are given does not comply with the directions or any portion of the directions, the sheriff may apply to the Court for an order 23

directing the person to comply with the written directions, or (

b) the person to whom the written directions are issued wishes to dispute the written directions may apply to the Court for a review of the written directions and an order rescinding or varying the written directions.

(8) With respect to matters coming under this section, nothing in this

section shall be construed so as to limit the exercise by the sheriff of any rights or powers given to the sheriff pursuant to an agreement entered into under

section 9 respecting access to and the search of premises or a location and the seizure of any property. Offence15(1) A person who does any of the following is guilty of an offence: (

a) except where authorized under an enactment, carries out or attempts to carry out the functions that may be carried out only by an agency unless that person is an agency; (

b) except where authorized under an enactment, carries out or attempts to carry out the functions that may be carried out only by a bailiff unless that person is a bailiff; (

c) purports to be (

i) an agency, or (ii) willing or otherwise in a position to carry out the functions of an agency, unless that person is an agency; (

d) purports to be (

i) a bailiff, or (ii) willing or otherwise in a position to carry out the functions of a bailiff, unless that person is a bailiff; (

e) purports to be (

i) a sheriff, or (ii) willing or otherwise in a position to carry out the functions of a sheriff, unless that person is a sheriff; 24

(

f) purports to be acting under the supervision or directions of a sheriff unless that person is acting under the supervision or directions of a sheriff; (

g) where the regulations prescribe the period of time in a day during which a seizure or eviction may be carried out, carries out a seizure or eviction at a time other than that permitted under the regulations; (

h) by means of threats of carrying out a seizure or sale obtains, takes or receives any property except as authorized by law; (

i) by means of unlawful force or threats of use of unlawful force (

i) enters or attempts to enter any location or premises, (ii) seizes, takes or receives any property or attempts to seize or take any property, or (iii) carries out or attempts to carry out an eviction; (

j) displays the word “agency”, “bailiff” or “sheriff" either alone or as part of a word or in conjunction with any other words (

i) on any business papers or correspondence or similar documents, (ii) on any business or identification cards or similar documents, or (iii) on any uniform, insignia, badge or vehicle, where the display of those words might lead the public or a member of the public into believing that the person displaying those words is, is employed by or is providing services on behalf of an agency, bailiff or sheriff, except where (iv) the person displaying the word “agency” is employed by or providing services on behalf of any agency, (

v) the person displaying the word “bailiff is a bailiff, or (vi) the person displaying the word "sheriff" is or is acting under the directions of a sheriff. 25

(2) Where (

a) a corporation is guilty of an offence under subsection (1), the corporation is liable to a fine of not more than $100 000, or (

b) an individual is guilty of an offence under subsection (1), that individual is, (

i) in the case of a first offence, liable to a fine of not more than $25 000, and (ii) in the case of a 2nd or subsequent offence, liable to a fine of not more than $50 000 or to a term of imprisonment of not more than 6 months or to both a fine and imprisonment.

PART 3 PREJUDGMENT RELIEF

Definitions16 In this Part, (a) “claim” means a claim that will result in a money judgment being granted if the claim is established; (b) “claimant” means a person asserting a claim; (c) “dealing”, in reference to property, includes transferring, mortgaging, charging, using, disposing of, creating an interest in or doing anything to the property; (d) “defendant” means a person against whom a claim is asserted; (e) “exigible property” means property that would be exigible if the defendant were an enforcement debtor; (f) “third person” means a person other than a defendant or a claimant. Attachment order 17(1) A claimant may apply to the Court for an attachment order where (

a) the claimant has commenced or is about to commence proceedings in Alberta to establish the claimant’s claim, or (

b) the claimant has commenced proceedings before a foreign tribunal to establish a claim if 26

(

i) a judgment or award of the foreign tribunal could be enforced in Alberta by action or by proceedings under an enactment dealing with the reciprocal enforcement of judgments or awards, and (ii) the defendant appears to have exigible property in Alberta.

(2) On hearing an application for an attachment order, the Court may, subject to subsection (4), grant the order if the Court is satisfied that (

a) there is a reasonable likelihood that the claimant’s claim against the defendant will be established, and (

b) there are reasonable grounds for believing that the defendant is dealing with the defendant’s exigible property, or is likely to deal with that property, (

i) otherwise than for the purpose of meeting the defendant’s reasonable and ordinary business or living expenses, and (ii) in a manner that would be likely to seriously hinder the claimant in the enforcement of a judgment against the defendant.

(3) In granting an attachment order the Court may do one or more of the following: (

a) direct that the order applies (

i) to all or specific exigible property of the defendant, or (ii) to any exigible property to be subsequently identified in writing by a bailiff; (

b) prohibit any dealing with exigible property of the defendant; (

c) impose conditions or restrictions on any dealings with exigible property of the defendant; (

d) require the defendant or a person who has possession or control of exigible property of the defendant to deliver the property up to a person identified in the order; (

e) authorize the clerk to issue a garnishee summons; (

f) appoint a receiver; 27

(

g) include in the order any term, condition or ancillary provision that the Court considers necessary or desirable.

(4) The Court shall not grant an attachment order unless the claimant undertakes to pay any damages or indemnity that the Court may subsequently decide should be paid to the defendant or a third person and where the Court grants an attachment order, the Court may require the claimant (

a) to give any additional undertaking that the Court considers appropriate, and (

b) to provide security in respect of any undertaking.

(5) When an attachment order is granted, it should be granted in such a manner that it causes as little inconvenience to the defendant as is consistent with achieving the purposes for which the order is granted.

(6) An attachment order shall not attach property that exceeds an amount or a value that appears to the Court to be necessary to meet the claimant’s claim, including interest and costs, and any related writs, unless the Court is of the view that such a limitation would make the operation of the order unworkable or ineffective.

(7) For the purposes of an order made under subsection (3) the following applies: (

a) if the clerk is authorized to issue a garnishee summons,

Part 8, with any necessary modification, applies to that garnishment; (

b) if a receiver is appointed,

Part 9, with any necessary modification, applies in respect of that receivership; (

c) if the order is to apply to exigible property to be subsequently identified in writing by a bailiff, the writing shall be considered to be included as a part of the order.

(8) Any interested person may apply to the Court to vary or terminate an attachment order. Ex parte attachment order 18(1) An application for an attachment order may be made ex parte.

(2) Subject to subsection (3), an attachment order granted on an ex parte application must specify a date, not more than 21 days from the day that the order is granted, on which the order will expire unless the order is extended on an application on notice to the defendant. 28

(3) If the Court is satisfied that it would be inappropriate for an attachment order granted on an ex parte application to expire automatically after 21 days, the order may specify a later expiry date or specify that it remains in effect until it terminates in accordance with

section 19.

(4) The Court, on application on notice to the defendant, may direct that an attachment order that was granted on an ex parte application remains in effect until the order terminates in accordance with

section 19 or as otherwise directed by the Court.

(5) If an application under subsection (4) cannot reasonably be heard and determined before the expiry date of the relevant attachment order, the Court may on ex parte application extend the period of time during which the order remains in force pending the determination of the application.

(6) When an application on notice to the defendant is made under subsection (4) the following applies: (

a) the onus is on the claimant to establish that the attachment order should be continued; (

b) the Court shall not continue the attachment order unless the circumstances that exist at the time of hearing the application justify the continued existence of the order; (

c) the Court may terminate the order if the Court is satisfied that the claimant failed to make full and fair disclosure of the material information that existed at the time that the claimant made the ex parte application for the attachment order. Termination of attachment order 19(1) Subject to

section 18 and except as otherwise ordered by the Court, an attachment order terminates on whichever of the following occurs first: (

a) on the dismissal or discontinuance of the claimant’s proceedings; (

b) on the 60th day from the day of the entry of a judgment in favour of the claimant.

(2) The Court may extend the operation of an attachment order beyond the times set out in subsection (1) if it appears just and equitable to do so. 29

Provision of alternative security 20 If property is under attachment pursuant to an attachment order, (

a) the defendant, (

b) any person claiming an interest in the attached property, or (

c) the person in whose possession the property was at the time of the attachment, may have the property released from attachment by providing sufficient alternative security in a form and amount as determined, (

d) by agreement between all interested persons, or (

e) by the Court, having regard to all the circumstances, including the apparent value of the defendant’s interest in the attached property. Sale, etc. of attached property 21 On application the Court may authorize the sale or other disposition of property that is subject to an attachment order without the consent of the owner of the property if in the opinion of the Court (

a) the property (

i) will depreciate substantially in value, or (ii) will be unduly expensive to keep under attachment, or (

b) it is necessary or prudent to sell or dispose of the property for any other reason not referred to in clause (a). Registration of attachment order 22 An attachment order may be (

a) registered in the Personal Property Registry, and (

b) in the case of land under the Land Titles Act, registered against the certificate of title to the land. Priorities23(1) Subject to subsection (2), priority between an attachment order and the interest of a third person in property to which the attachment order applies shall be determined in accordance with Division 2 of

Part 4 as if the attachment order were a writ. 30

(2) A third person who in a transaction that is permitted under an attachment order acquires an interest in property to which the attachment order applies acquires that interest free of the attachment order.

(3) Where prior to the expiration of an attachment order (

a) a writ has been issued by a clerk to the claimant in respect of the same proceedings in which the attachment order was granted, (

b) the writ is registered in the Personal Property Registry, and (

c) in the case of land, the writ is also registered under the Land Titles Act, that writ has the same priority as the attachment order. Commence ment, etc. of writ proceedings 24(1) Subject to subsection (2), writ proceedings may be commenced or continued against property that is subject to an attachment order and any money realized through those proceedings may be distributed under

Part 11 without regard to the attaching claimant’s claim.

(2) On application the Court may, where the Court considers that it would be just and equitable to do so, order one or more of the following: (

a) that no writ proceedings be commenced or continued against property that is the subject of an attachment order without the leave of the Court until the attachment order terminates; (

b) that money realized through writ proceedings against property that is the subject of an attachment order not be distributed until the attachment order terminates; (

c) that the attachment creditor have the status of an instructing creditor for the purposes of the distribution of the proceeds. Inconsistent actions 25(1) Where a person knowingly assists or participates in dealing with attached property in a manner that is inconsistent with the terms of the attachment order, the Court may order that person to compensate any claimant or enforcement creditor who suffers actual loss as a result of that dealing.

(2) The Court shall not make an order under subsection (1) against a person by reason only of the person having done something that was necessary to meet a legal duty that 31

(

a) arose before the person acquired knowledge of the attachment order, and (

b) was owed to someone other than the defendant.

(3) Nothing in this

section shall be construed so as to restrict the power of the Court to punish for contempt.

PART 4 JUDGMENTS AND WRITS Division 1 Registration Registration required 26 A judgment creditor may not initiate any writ proceedings in respect of a money judgment (

a) against any personal property unless a writ in respect of that judgment is registered in the Personal Property Registry, or (

b) against land unless a writ issued in respect of that judgment is registered (

i) in the Personal Property Registry, and (ii) under the Land Titles Act against the certificate of title to that land. When writ is in force 27(1) A writ is in force only while the judgment in respect of which the writ is issued is in force.

(2) For the purposes of subsection (1), a judgment is not in force (

a) if it has been satisfied, or (

b) on the expiration of 10 years from the day that the judgment is entered with the clerk unless the judgment is renewed or an action is brought on that judgment within the 10-year period. Duration of registration in Personal Property Registry 28 The registration of a writ in the Personal Property Registry (

a) is in effect for 2 years from the day that it is registered or such longer period as prescribed by the regulations, and 32

(

b) may be renewed in accordance with the Personal Property Security Act and the regulations under that Act. Duration of registration under the Land Titles Act 29 The registration of a writ under the Land Titles Act is in effect for the duration of the judgment. Error or omission re writ 30 Where writ proceedings have been carried out and there is an error or omission (

a) on the writ, or (

b) in respect of its registration in the Personal Property Registry, the Court may, on application, make an order validating any writ proceedings that may have taken place, subject to any interests that may have arisen in the period of time between the issuance of the writ or its registration in the Personal Property Registry, as the case may be, and the correction of the error or omission. Division 2 Binding Effect of Writs

Definitions31 In this Division, (a) “after-acquired personal property” means personal property acquired by an enforcement debtor after the relevant writ is registered in the Personal Property Registry; (

b) the following terms have the meanings as given to them in the Personal Property Security Act: (

i) buyer of goods; (ii) consumer goods; (iii) equipment; (iv) inventory; (

v) money; (vi) new value; (vii) ordinary course of business of the seller; (viii) purchase; 33

(ix) purchase-money security interest; (

x) purchaser; (xi) security interest; (xii) seller; (xiii) value. Knowledge of writ 32 For the purpose of this Division, a person is considered to have knowledge of a writ if that person has knowledge that the relevant property is subject to a writ or is under seizure. When writ binds 33(1) A writ does not bind or otherwise affect an enforcement debtor’s interest (

a) in any personal property, other than while the writ is in force and registered in the Personal Property Registry, (

b) in any land under the Land Titles Act, other than while the writ is in force and registered under the Land Titles Act against the applicable certificate of title, or (

c) in any land that is not under the Land Titles Act, other than while the writ is in force and is registered, filed or otherwise recorded in accordance with the regulations.

(2) A writ, (

a) in the case of personal property, on being registered in the Personal Property Registry binds all of the enforcement debtor’s exigible personal property; (

b) in the case of land under the Land Titles Act, on being registered under the Land Titles Act binds all of the enforcement debtor’s exigible land described in the certificate of title against which the writ is registered; (

c) in the case of land that is not under the Land Titles Act, on being registered, filed or otherwise recorded in accordance with the regulations, binds or otherwise affects the enforcement debtor’s interest in that land to the extent permitted by the enactments that govern (

i) that land, and (ii) claims made against interests in that land. 34

(3) Subsection (2)(

a) applies to after-acquired personal property of the enforcement debtor from the time that the enforcement debtor acquires that property. Subordination of subsequent interests 34(1) Except as otherwise provided in sections 35 to 40 or in any other enactment, an interest acquired in property after the property is bound by a writ is subordinate to the writ.

(2) Where an interest in property is subordinate to a writ, (

a) the property is subject to writ proceedings to the same extent that the property would have been if the subordinate interest did not exist, and (

b) a person who acquires the property as a result of writ proceedings acquires the property free of the subordinate interest. Priority between writs and security interests 35(1) Except as otherwise provided for in this Division, a security interest in personal property that is not registered or perfected at the time that the property becomes bound by a writ is subordinate to the writ.

(2) Subject to

section 35(5) of the Personal Property Security Act, a security interest in personal property has priority over a writ if the security interest was registered or perfected before the property became bound by the writ.

(3) A purchase money security interest in personal property has priority over a writ that bound the personal property before the purchase money security interest was registered or perfected if the security interest was registered or perfected not later than 15 days from the day that (

a) the debtor, or another person at the request of the debtor, obtained possession of the collateral, or (

b) the security interest attached, in the case of personal property other than goods, chattel paper, a security certificate, a document of title, an instrument or money. Disposition of goods 36(1) A buyer or lessee of goods sold or leased in the ordinary course of business of the seller or lessor takes free of any writ that binds the goods.

(2) A buyer or lessee of goods, other than fixtures, that are acquired as consumer goods takes free from a writ that binds the goods if the buyer or lessee 35

(

a) gave value for the interest acquired, (

b) bought or leased the goods without knowledge that the goods are bound by the writ, and (

c) the purchase price of the goods does not exceed $1000 or, in the case of a lease, the market value of which does not exceed $1000.

(3) Where serial number goods that are bound by a writ are not described by serial number in the registration of that writ in the Personal Property Registry, (

a) in the case of consumer goods, a buyer, lessee or secured party who gives value for an interest in the goods acquires the interest free of the writ, and (

b) in the case of equipment, a buyer, lessee or secured party who gives value for an interest in the goods without knowledge of the writ acquires the interest free of the writ.

(4) A sale or lease under this

section may be for cash, by exchange for other property or on credit, and includes delivering goods or a document of title to goods under a pre-existing contract for sale but does not include a transfer as security for, or in total or partial satisfaction of, a money debt or past liability. Fixtures and growing crops 37(1) Where goods are bound by a writ and while being bound by the writ the goods become a fixture, those goods shall continue to be bound by that writ.

(2) Where (

a) goods that are bound by a writ become a fixture, or (

b) a writ binds a growing crop, a notice of that fact may be registered under the Land Titles Act against the certificate of title for the land.

(3) Any question of priorities between a writ and a security interest in a fixture or a growing crop shall be determined in accordance with

section 36(5) or 37(4) of the Personal Property Security Act.

(4) Where a person acquires an interest in a fixture or a growing crop that is bound by a writ by acquiring an interest in the land on which the fixture or crop is located, that person’s interest is not subordinate to the writ unless notice referred to in subsection (2) was registered against the certificate of title before the person acquired the interest. 36

(5) Subsections (2), (3) and (4) apply only to land for which a certificate of title has been issued under the Land Titles Act. Negotiable instruments 38(1) A holder of money has priority over a writ that binds the money if that holder (

a) acquired the money without knowledge of the writ, or (

b) is a holder for value, whether or not the holder has knowledge of the writ.

(2) A purchaser of an instrument or security certificate has priority over a writ that binds the instrument or security certificate if that purchaser (

a) gave value, (

b) acquired it without knowledge of the writ, and (

c) took possession of it.

(3) A clearing agency that takes possession of a security certificate without knowledge of a writ that binds the security certificate has priority over the writ.

(4) A holder of a negotiable document of title has priority over a writ that binds the document of title if that holder (

a) gave value, and (

b) acquired the document of title without knowledge of the writ.

(5) A purchaser of chattel paper has priority over a writ that binds the chattel paper if that purchaser (

a) gave new value, (

b) took possession of the chattel paper in the ordinary course of the purchaser’s business, and (

c) at the time of taking possession did not have knowledge of the writ. Market securities 39 A person who acquires a market security in a transaction that is settled through a clearing agency has priority over a writ that binds the market security if that person did not have knowledge of the writ at the time of settlement. 37

Priority of liens40 When a person in the ordinary course of business furnishes materials or services with respect to goods that are bound by a writ, any lien that the person has with respect to the materials or services has priority over the writ unless the lien is given under an enactment that provides that the lien does not have that priority. Effect of seizure 41 Subject to

section 35(5) of the Personal Property Security Act, the position of a person who acquires an interest in personal property that is bound by a writ is determined by this Division regardless of whether the personal property has been seized. Interaction between writs 42(1) An interest in property is not subordinate to a writ by reason only of the fact that the interest is subordinate to another writ.

(2) Nothing in this

section shall be construed so as to create any priority as between writs.

PART 5 SEIZURE OF PERSONAL PROPERTY Applies to all exigible personal property 43(1) For the purposes of enforcing a writ, all exigible personal property of an enforcement debtor is liable to seizure.

(2) Any exigible personal property of an enforcement debtor that is to be seized pursuant to writ proceedings shall be seized and dealt with in accordance with this Part. Demand on third person44(1) Where there are reasonable grounds for believing that exigible personal property of an enforcement debtor is in the possession or control of a third person, the agency may and, if so instructed by the instructing creditor, must serve a demand on the third person requiring the third person to deliver the property to the agency or make it available for seizure within 15 days from the day that the demand is served on the third person.

(2) A third person on whom a demand is served under this

section must forthwith (

a) deliver the property to the agency, (

b) advise the agency of the place at which seizure of the property may be effected and take reasonable steps to ensure that the property remains at that place until it is seized, or 38

(

c) where the third person has a right as against the enforcement debtor to retain the property or does not have possession or control of the property, advise the agency that the third person is not required to comply with clause (

a) or (

b) by reason that the third person (

i) has a right as against the enforcement debtor to retain the property, or (ii) does not have possession or control of the property.

(3) Where a third person complies with a demand made under this section, the agency must compensate the third person for any expenses reasonably incurred by the third person in complying with that demand.

(4) A third person who without reasonable excuse fails to comply with a demand made under this

section must compensate the enforcement creditors with a related writ for any pecuniary loss suffered by them as a result of the non-compliance.

(5) When an agency takes possession of property from a third person in respect of whom a demand was made under this section, the third person is discharged of any responsibility that the third person may have been under to hold the property for, or return it to, the debtor.

(6) This

section does not apply where a security, as defined in

section 56, is held on behalf of an enforcement debtor by a clearing agency or an intermediary, as defined in

section 56. Effecting seizure 45(1) Personal property that is described in a notice of seizure is seized when a bailiff, (

a) while at the place at which the property is located, serves the seizure documents on (

i) the enforcement debtor or an adult member of the enforcement debtor’s household, (ii) an adult occupying or working at the location at which the property is located, or (iii) a person who has possession of or control over the property, or (

b) subject to the regulations, attaches to the property documents indicating that the property is seized or posts 39

the notice of seizure in a conspicuous place at the location at which the property is located.

(2) Notwithstanding subsection (1), where this or another enactment sets out a different seizure process in respect of certain property or classes of property, that property is seized when it is seized pursuant to that seizure process.

(3) Where a bailiff effects seizure under subsection (1) but at the time of the seizure did not serve the seizure documents on the enforcement debtor or an adult member of the debtor’s household, an agency must serve the seizure documents on the debtor as soon after effecting seizure as is practicable.

(4) Notwithstanding subsection (3), if an agency is unable to serve the seizure documents (

a) on the enforcement debtor, or (

b) on an adult member of the enforcement debtor’s household, the instructing creditor may proceed in the same manner as if the enforcement debtor had been served with the seizure documents and had filed a notice of objection in respect of the seizure.

(5) A person is guilty of an offence if that person without lawful authority removes, damages or otherwise interferes (

a) with seizure documents or identifying documents that are attached to seized property or posted under subsection (1)(b), or (

b) with any property that is under seizure. Objection46(1) Where an enforcement debtor wishes to object to a seizure of personal property, the enforcement debtor must within 15 days from the day that (

a) the seizure documents are served under

section 45(1)(a)(

i) on the enforcement debtor or an adult member of the enforcement debtor’s household, or (

b) the seizure documents are served under

section 45(3) on the enforcement debtor, serve a notice of objection in the prescribed form on the agency that carried out the seizure. 40

(2) On being served with a notice of objection, the agency shall not sell or otherwise dispose of the property unless permitted to do so by the Court.

(3) A notice of objection is void and shall be disregarded if (

a) a reason for the objection is not set out in the notice of objection, or (

b) the notice of objection is not served on the agency within the 15-day period provided for under subsection (1). Termination of seizure 47(1) Once personal property is seized, that property remains under seizure until the agency (

a) sells or otherwise disposes of the property under this Act, or (

b) releases the property from seizure.

(2) If personal property has been under seizure for at least 90 days, the agency may give 30 days’ notice to every enforcement creditor who, at the time that the notice is given, has a related writ against the enforcement debtor of the agency’s intention to release the property from seizure.

(3) Unless within the 30-day period referred to in subsection (2) the agency has been directed by an enforcement creditor to continue the seizure, the agency may release from seizure the property in respect of which the notice was given. Sale of property, etc. 48 For the purposes of selling seized personal property the following applies: (

a) subject to clause (h), property must not be sold until the period of time for serving on the agency a notice of objection with respect to the seizure of the property has expired; (

b) subject to clause (a), an agency must sell the property as soon after being instructed to do so as is practicable; (

c) the agency may delay the sale if it is commercially reasonable to do so; (

d) subject to this Part, the agency may without an order of the Court sell the property by any commercially reasonable method; 41

(

e) the agency must, at least 15 days before the day on which the sale is to take place, give notice to the instructing creditor and the enforcement debtor of the method of sale being used; (

f) the agency may sell the property to an enforcement creditor by private sale if (

i) at least 15 days before the day of the sale, the agency gives notice of the terms of the sale to (

A) the enforcement debtor, and (

B) all of the other enforcement creditors having related writs at the time that the notice is given, and (ii) within the 15-day period neither the enforcement debtor nor any of the enforcement creditors having related writs serves on the agency a notice of objection to the sale; (

g) if an objection to a private sale is served on the agency in accordance with clause (f)(ii), the matter shall be dealt with in the same manner as a notice of objection is dealt with under

section 46; (

h) on application the Court may by order permit the agency to effect an expeditious sale or disposal of property where the Court is of the opinion that in the circumstances it is appropriate to sell or dispose of the property in an expeditious manner; (

i) subject to

section 34(2), when property is sold, (

i) the person who buys the property obtains only the interest of the enforcement debtor in the property, and (ii) the sale of the property does not adversely affect the rights or interest of any other person in the property. 42

PART 6 SPECIAL SEIZURE MECHANISMS Application of

Part 49 Except where it would conflict with this Part,

Part 5 applies to seizure proceedings against property governed by this Part. Division 1 Property Other than Securities Cash and instruments 50 For the purposes of seizing and dealing with cash and instruments, the following applies: (

a) seized cash may not be distributed as enforcement proceeds until the expiration of the time within which the enforcement debtor may serve a notice of objection in accordance with

section 46(1); (

b) the seizure of an instrument constitutes the agency that seized the instrument as the irrevocable agent of the enforcement debtor for the purpose of liquidating the instrument; (

c) without restricting the generality of clause (

b) the agency that seized an instrument may do one or more of the following as if the agency had been specifically authorized by the enforcement debtor to do so: (

i) present the instrument for payment and receive payment thereon; (ii) sue any person liable on the instrument in the name of the debtor; (iii) negotiate the instrument; (

d) an agency that endorses an instrument on behalf of the enforcement debtor must do so in a manner that will exclude recourse against the enforcement debtor. Secured obligations51 For the purposes of seizing and dealing with a secured obligation, other than a market security or an obligation evidenced by an instrument, the following applies: (

a) seizure of a secured obligation is effected by (

i) identifying the obligation and the security for it in the notice of seizure, 43

(ii) registering the notice of seizure in the Personal Property Registry, (iii) if the collateral for the secured obligation is land, registering under the Land Titles Act the notice of the seizure against the certificate of title to the land, and (iv) serving the seizure documents on the enforcement debtor; (

b) if the enforcement debtor’s security has not been registered in the Personal Property Registry or under the Land Titles Act when the secured obligation is seized, an agency may register the security in the Personal Property Registry or under the Land Titles Act, as the case may be; (

c) after seizing a secured obligation, an agency may serve the notice of seizure on the person liable to pay the obligation and after being served with the notice that person must pay to the agency any amount that is or becomes payable in respect of the obligation; (

d) after serving the notice of seizure on the person liable to pay the obligation, an agency, as an alternative to selling the secured obligation under

Part 5, may collect the obligation through any proceedings, including an action or enforcement of the security, that could otherwise have been taken by the enforcement debtor. Agricultural products52 For the purposes of seizing and dealing with agricultural products, the following applies: (

a) an agency may seize growing crops of an enforcement debtor; (

b) a growing crop must not be sold until it has been harvested; (

c) an agency has the same rights and duties as the enforcement debtor regarding the sale of seized agricultural products under any applicable marketing legislation or plan; (

d) unless the enforcement debtor undertakes to harvest a seized crop, an agency may require the instructing creditor to provide security for the payment of any harvesting expenses that may be incurred by the agency; 44

(

e) if the instructing creditor does not provide the requested security, the agency may release the crop from seizure; (

f) any harvesting or marketing expenses incurred by an agency in connection with a seized crop are a first charge on and payable out of the proceeds of the crop in priority to any other claim or right in the property including any security interest, lien, charge, encumbrance, mortgage or assignment whether arising pursuant to a statute or otherwise; (

g) the benefit of the charge referred to in clause (

f) extends to an enforcement creditor who has paid the harvesting expenses incurred by an agency. Fixtures53 For the purposes of seizing and dealing with fixtures, the following applies: (

a) a fixture may be seized and sold as personal property (

i) in the circumstances set out in clause (b), or (ii) as authorized by the Court; (

b) a fixture that is bound by a writ may be seized and sold in accordance with

Part 5 if (

i) the fee simple interest in the land to which the fixture is affixed is not beneficially owned by the enforcement debtor, and (ii) any interest in the fixture of a person who has an interest in the land is subordinate to the writ; (

c) an agency that seizes a fixture must serve on each person who appears on the records of the Registrar of Land Titles, at the time the notice is given, to have an interest in the land a notice containing (

i) a description of the seized fixture and of the land to which it is affixed, (ii) the amount for which writs are alleged to have priority over the person’s interest in the fixture, and (iii) a statement that the fixture may be removed and sold unless the amount referred to in clause (

g) is paid on or before a specified date that is not less than 15 days from the day that the notice is served; 45

(

d) the notice given under clause (

c) may be served in accordance with this Act or by registered mail addressed to the address of the person to be notified as it appears in the records of the Registrar of Land Titles; (

e) a person who is entitled to receive a notice under clause (

c) may apply to the Court for an order postponing removal of the fixture from the land or for the determination of any issue relating to the seizure; (

f) if a fixture is seized and removed, any person other than the enforcement debtor who had an interest in the land at the time that the fixture was affixed to the land (

i) is entitled to reimbursement from the agency for any damage to that person’s interest caused during the removal of the fixture, but (ii) is not entitled to reimbursement for diminution in the value of the land caused by the absence of the fixture or the need to replace it; (

g) any person with an interest in the land to which a fixture is affixed may retain the fixture by paying to the agency the lesser of (

i) the amount for which the person’s interest in the fixture is subordinate to any writs, and (ii) the market value of the fixture; (

h) if the appropriate payment is made to the agency under clause (g), the fixture ceases to be bound by any writ against the enforcement debtor. Serial number goods54 Serial number goods may be seized (

a) in accordance with

Part 5, or (

b) subject to the regulations, by (

i) registering in the Personal Property Registry a notice of the seizure that identifies the goods by serial number, and (ii) serving the seizure documents on the enforcement debtor. 46

Mobile homes55 For the purpose of acquiring possession of a seized mobile home, the following applies: (

a) where (

i) the mobile home is occupied by the enforcement debtor or some other person, and (ii) the occupant fails, on demand, to deliver up possession of the mobile home, the instructing creditor, on notice to the occupant, may apply to the Court for an order directing the occupant to deliver up possession of the mobile home; (

b) an agency may obtain possession of the mobile home as authorized by the order referred to in clause (

a) if (

i) the occupant has been served with the order, and (ii) the occupant has failed to deliver up possession of the mobile home as directed by the order. Division 2 Securities

Definitions56(1) In this Division, (a) “holder” means, in relation to a security, a person (

i) who or whose nominee is the registered holder of the security, (ii) who has possession of a security certificate evidencing the security, or (iii) for whom a clearing agency holds the security; (b) “intermediary” means a holder who holds the relevant security on behalf of an enforcement debtor but does not include a clearing agency unless the clearing agency’s own records shows that the clearing agency holds the relevant security for the enforcement debtor; (c) “issuer” means the issuer of securities that are the subject of seizure proceedings; (d) “registered holder” means a person shown as the owner or holder of a security in the records of the security’s issuer or the records of the issuer’s transfer agent; 47

(e) “security” means any share or market security; (f) “security certificate” means a document evidencing a security; (g) “share” means a share in a corporation.

(2) For the purposes of this Part and regulations, “transfer agent” means an entity appointed by an issuer as its agent for the purposes of (

a) maintaining a securities register, (

b) recording the transfer of securities, (

c) distributing dividends or other payments in respect of its securities, or (

d) providing services that are ancillary to matters referred to in clauses (

a) to (c). Effecting seizure 57(1) An agency may seize a security, (

a) if the security is evidenced by a security certificate, by seizing the security certificate in accordance with

Part 5, (

b) if the enforcement debtor is the registered holder of the security, by serving the issuer with a notice of seizure in the prescribed form, (

c) if the security is held by an intermediary, by serving the intermediary with a notice of seizure in the prescribed form, or (

d) where it is possible to effect seizure of the security by any one or more of the methods referred to in clauses (

a) to (c), by whichever method the agency considers most appropriate in the circumstances.

(2) Notwithstanding subsection (1), a seizure may be effected in accordance with subsection (1)(

b) or (

c) only if the notice of seizure is served in Alberta on the issuer or intermediary. Duties of issuer58(1) Where the enforcement debtor is the registered holder of a security that an agency has seized otherwise than in accordance with

section 57(1)(b), the agency must serve the notice of seizure on the issuer as soon after effecting the seizure as is practicable. 48

(2) An issuer who has been served with a notice of seizure regarding a security of which the enforcement debtor is the registered holder shall do the following: (

a) send to the agency any documents and allow the agency to inspect any records that the enforcement debtor, as the registered holder of the security, is entitled to receive or inspect; (

b) pay to the agency any dividend or other payment in respect of the security that would otherwise be payable by the issuer to the enforcement debtor; (

c) comply with any instruction given by the agency regarding the seized security where the issuer would be required to comply with the instruction if that instruction was given by the enforcement debtor while the security was not under seizure.

(3) Except as it applies to the enforcement debtor, nothing in subsection (2) shall be construed so as to adversely affect any right of a holder of a security certificate under a law in force in Alberta or the laws under which the issuer of the security certificate is incorporated or otherwise constituted. Duties of intermediary 59(1) Where an agency has seized a security by serving a notice of seizure on an intermediary, the following applies: (

a) the intermediary shall hold the security on behalf of and in accordance with the instructions of the agency; (

b) the agency is entitled to receive any information or documents relating to the security that the intermediary is required to give to the enforcement debtor; (

c) the intermediary shall pay to the agency any dividend or other payment in respect of the security that would otherwise be payable by the intermediary to the enforcement debtor; (

d) the agency is entitled to give any instruction to the intermediary regarding the seized security that the enforcement debtor would otherwise be entitled to give; (

e) if so instructed by the agency, and if it is possible to do so, the intermediary shall cause the security to be registered in the name of the agency or deliver a security certificate evidencing the security to the agency, or both; 49

(

f) if so instructed by the agency, the intermediary shall liquidate the security and pay to the agency any proceeds to which the enforcement debtor would otherwise be entitled.

(2) Notwithstanding subsection (1), seizure of a security held by an intermediary does not prejudice any right that the intermediary would otherwise have to enforce a security interest or lien (

a) for the amount owed by the enforcement debtor to the intermediary at the time of seizure, or (

b) to the extent otherwise provided by the regulations.

(3) If a notice of seizure is served on an intermediary after the intermediary has agreed on behalf of the debtor to sell a security to which the notice of seizure applies, the intermediary may complete the sale and deal with the proceeds in accordance with subsection (1)(f). Liability of issuer or intermediary 60 An issuer or intermediary who fails to comply with a duty imposed on it under

section 58 or 59 is liable for any pecuniary loss suffered by the enforcement creditors as a result of the failure. Liquidation of security 61(1) An agency may liquidate a seized security by any means that the nature of the security permits.

(2) Subject to

section 65, no restriction on the transfer of a security, other than a constraint under

section 168 of the Business Corporations Act, applies to the transfer of a security by an agency under this Act. Liquidation procedure re non-market securities 62 The following applies only in respect of shares that are not market securities: (

a) where an issuer has been served with a notice of seizure in respect of certain shares, the issuer must so inform any person who requests information from the issuer regarding the enforcement debtor’s ownership of or ability to transfer those shares; (

b) on being instructed to sell seized shares, the agency shall serve a notice of intended sale on (

i) the issuer, (ii) any person who, to the knowledge of the agency, would have a preferential right to acquire the shares 50

on a voluntary sale of the shares by the enforcement debtor, and (iii) every registered shareholder of the issuer, if there are not more than 15 registered shareholders; (

c) the notice of intended sale must set out the method of sale that the agency intends to follow in selling the shares; (

d) after complying with clause (b), the agency shall not take any further steps to sell the shares until 15 days have elapsed from the day that the notice was served under clause (b); (

e) the agency, subject to clause (f), must in selling shares use a method of sale that (

i) follows as closely as possible any procedure that the enforcement debtor would be required to follow in order to sell the shares, and (ii) subject to subclause (i), provide to the issuer and the existing shareholders of the issuer a reasonable opportunity to buy or redeem the shares before they are offered for sale to any other person; (

f) the agency is not required to comply with clause (

e) to the extent that the method of sale referred to in clause (

e) would prevent the shares from being sold at all or prevent them from being sold within a reasonable time or for a reasonable price; (

g) a person who would otherwise be entitled to acquire or redeem the shares for a predetermined price or at a price fixed by reference to a predetermined formula is entitled to buy or redeem the shares from the agency for that price unless the Court determines that a sale at that price would unfairly prejudice the enforcement debtor or the enforcement creditors; (

h) at any time before the shares are sold by the agency, any person referred to in clause (

b) may pay to the agency an amount sufficient to discharge all related writs and any outstanding agency’s fees or charges and the taxable fees and disbursements of the instructing creditor, and on paying that amount to the agency that person has a lien on the shares for the amount paid to the agency, plus interest; (

i) on application by the agency or any interested person, the Court may make any order that the Court considers appropriate regarding the method of liquidating seized 51

shares, including an order doing one or more of the following: (

i) approving, with or without modification, or rejecting (

A) the method of sale proposed by the agency or by any other person, (

B) any proposed term of the sale, or (

C) any proposed method of realizing the value of the shares other than through sale; (ii) suspending sale proceedings; (iii) directing that the issuer be liquidated and its proceeds disposed of according to law; (

j) if the agency has sent a notice of an intended sale to the persons mentioned in clause (

b) and no application is made under clause (

i) before the shares are sold, the method of sale set out in the notice of intended sale is deemed to have met the requirements of clause (e). Execution of transfer documents 63 The issuer of a security is not required to acknowledge any document executed or endorsed by an agency or a receiver unless the document is accompanied by the certificate of the agency or receiver stating that the document has been executed or endorsed by the agency or receiver under the authority of this Act. Missing security certificate 64 Where (

a) liquidation of the enforcement debtor’s interest in the security would ordinarily require presentation of a security certificate to the issuer or a transfer agent of the issuer, (

b) the security certificate appears to have been lost, destroyed or wrongfully taken, and (

c) the instructing creditor has made satisfactory provision for indemnification of the issuer against any liability the issuer may incur in respect of the security certificate, the Court on application may require the issuer to acknowledge a transfer or other disposition of the security without presentation of the security certificate. 52

Effect of transfer 65(1) On presentation of a transfer document endorsed or executed by the agency or receiver that is in compliance with

section 63, the issuer shall register the transfer of a registered security to the person named as transferee in the transfer document.

(2) In addition to any agreement to which the transferee is deemed by

section 140 of the Business Corporations Act to be a party, the transferee is deemed to be a party to any shareholders’ agreement regarding (

a) the management of the affairs of the issuer, or (

b) the exercise of voting rights attached to the seized shares, to which the enforcement debtor was a party at the time of the seizure and of which the transferee had knowledge at the time of the transfer if the shareholders’ agreement contains provisions intended to have the effect of precluding the enforcement debtor from transferring the security, except to a person who agrees to be a party to that shareholders’ agreement.

(3) Notwithstanding subsection (2) of this

section and

section 140 of the Business Corporations Act, the Court may grant a declaration that the transferee is not bound by a term or provision of any agreement, by-law or

article that discriminates against the transferee by reason of the transferee acquiring the securities through writ proceedings. Foreign issuers 66 Where (

a) a security of an issuer that is not incorporated or otherwise constituted under the laws of Alberta is seized under this Act, and (

b) the Court is satisfied that the issuer or some other person is likely to suffer actual prejudice as a result of a conflict between anything in this Division and the laws under which the issuer is incorporated or otherwise constituted, the Court shall make any order it considers necessary to prevent the issuer or person from being so prejudiced. 53

PART 7 LAND Applies to all land 67 For the purposes of enforcing a writ, (

a) all land of the enforcement debtor that is under the Land Titles Act is liable to sale under this Part, and (

b) all land of the enforcement debtor that is not under the Land Titles Act is, subject to the enactments governing that land, liable (

i) to sale, or (ii) to be otherwise dealt with, in accordance with the regulations. Instruction to sell 68 To initiate enforcement proceedings to sell land an enforcement creditor must provide to an agency instructions to sell the land and any relevant documents or information that are required by the agency. Method of sale69 An agency may sell land by any method of sale that is commercially reasonable. Notice of intention to sell 70 Before land is sold under this Act, a notice of intention to sell the land must be given in accordance with the regulations. Growing crops71 Growing crops may be sold as part of a sale of land under this

Part if the notice of intention to sell states that the crops are to be sold along with the land. Waiting period72(1) Once the regulations governing the giving of notice of intention to sell have been complied with, an agency shall not, unless otherwise permitted by the Court, offer the land for sale until a waiting period of 180 days has expired from the day that all of the requirements of those regulations have been complied with.

(2) A Court may, subject to subsection (3), extend or shorten the 180-day waiting period.

(3) The Court may shorten the 180-day waiting period only if the Court is satisfied that the land is not exempt. 54

Exemption73(1) Before the expiration of the waiting period referred to in

section 72, an enforcement debtor who is an individual may serve on the agency a written claim claiming an exemption under

Part 10.

(2) Unless the Court orders otherwise, an enforcement debtor who serves a written claim in accordance with subsection (1) shall be presumed to be entitled to the applicable exemption under

Part 10.

(3) Where an enforcement debtor does not within the waiting period referred to in

section 72 serve on the agency a written claim under subsection (1), the enforcement debtor may not, without leave of the Court, subsequently claim that the land is in whole or part exempt.

(4) On the expiration of the waiting period referred to in

section 72, the agency may offer the land for sale in accordance with the notice of intention to sell given under this Part. Sale of land74(1) At least 30 days before offering land for sale the agency must serve notice of the method of sale on the enforcement debtor and any other person specified by the regulations.

(2) In addition to any information prescribed by the regulations, the notice of the method of sale may set out the minimum price for which the agency proposes to sell the land.

(3) If the notice of the method of sale sets out the minimum price for which the agency proposes to sell the land, the following applies: (

a) the notice must state that any person who objects to the land being sold for the proposed minimum price must serve a notice of objection on the agency within 30 days from the day of being served with notice of the method of sale; (

b) if any person serves a notice of objection on the agency within the time mentioned in clause (a), the agency must not sell the land except on terms that are approved of by the Court; (

c) if a notice of objection is not served on the agency within the time mentioned in clause (a), the agency may, without an order of the Court, complete the sale of the land for a price that equals or exceeds the proposed minimum price.

(4) If the notice of the method of sale does not set out the minimum price for which the agency proposes to sell the land, the following applies: 55

(

a) on entering into an agreement to sell the land, the agency must serve notice of the terms of the sale on (

i) every person who was served with notice of the method of sale, and (ii) if the instructing creditor is the buyer, every other enforcement creditor with a related writ at the time that the notice is given; (

b) the notice of the terms of sale must state that any person who objects to the terms of the proposed sale must serve a notice of objection on the agency within 15 days from the day of being served with notice of the terms of sale; (

c) if a person serves a notice of objection on the agency within the time mentioned in clause (b), the agency shall not complete the sale unless authorized to do so by the Court; (

d) if a notice of objection is not served on the agency within the time mentioned in clause (b), the agency may, without an order of the Court, complete the sale. Transfer of land 75(1) On presentation to the Registrar of Land Titles of (

a) a transfer of land that is executed by the agency, and (

b) a certificate certifying that the agency has complied with the requirements of this Part and that (

i) a notice of objection to the sale was not served on the agency within the period of time prescribed under

section 74, or (ii) a notice of objection to the sale was served on the agency within the period of time prescribed under

section 74 and that the Court has authorized the sale of the land, the Registrar shall, subject to subsection (2), transfer the enforcement debtor’s interest in the land to the transferee (

c) free of all writs that were registered against the enforcement debtor’s interest in the land, but (

d) unless otherwise ordered by the Court, subject to any other encumbrances or interests that were registered against the enforcement debtor’s interest in the land. 56

(2) Where an interest in land is sold pursuant to a Court order made under

section 74(3)(

b) or (4)(c), the Registrar shall not transfer the interest until the Registrar has been satisfied by the agency (

a) that all persons who have a right to appeal that order have given written undertakings not to appeal the order or, if the order has been appealed, not to take a further appeal, or (

b) in the case of the appropriate undertakings not being given under clause (a), (

i) that the order is no longer subject to an appeal, or (ii) if the order has been appealed, that the appeal has been concluded and the order is no longer subject to a further appeal. Severance of joint tenancy, etc. 76(1) Writ proceedings against an enforcement debtor’s interest as a joint tenant of land sever the joint tenancy when an agency has entered into an agreement to sell the debtor’s interest.

(2) If a writ is registered against land in which an enforcement debtor holds an interest in joint tenancy and the enforcement debtor dies, the writ shall continue to bind the land in an amount equal to the lesser of (

a) the amount owing on the writ, and (

b) the value that the debtor’s interest in the land would have been if the joint tenancy had been severed immediately before the debtor’s death.

PART 8 GARNISHMENT

Definitions and

interpretation 77(1) In this Part, (a) “current obligation” means an obligation, or any portion of an obligation, that on the day of service of a garnishee summons on the garnishee (

i) is payable, (ii) is payable on demand, or (iii) is payable on satisfaction of a condition to which

section 83(1) applies; 57

(b) “employment earnings” means wages, salary, commissions or remuneration for work by an individual however computed; (c) “future obligation” means an obligation or any portion of an obligation that is not a current obligation and that (

i) will arise or become payable in certain circumstances or at a certain time or times under (

A) an existing agreement or trust, (

B) an issued security, or (

C) the will of a deceased person, (ii) will arise or become payable in the ordinary course of events from an existing employment relationship, (iii) is a statutory obligation that is likely to arise or become payable as a result of an event that has occurred, or (iv) may arise or become payable in respect of an existing cause of action; (d) “garnished obligation” means an obligation against which a garnishee summons has been issued; (e) “garnishee” means a person on whom a garnishee summons is served for the purposes of attaching an obligation that is owed or may become owing by that person to an enforcement debtor; (f) “garnishee summons amount” means (

i) the amount for which a garnishee summons was originally issued, or (ii) where the garnishee has been served with a notice of a change in the amount referred to in subclause (i), the amount set out in that notice; (g) "joint entitlement" means an obligation that is or will be owed to 2 or more persons jointly; (

h) net pay means, in respect of any month, the total employment earnings payable by an employer to a person in that month minus any deductions prescribed by regulation; 58

(i) “obligation” means a legal or equitable duty to pay money; (j) “pay period” means a period at the end of which a person is entitled to be paid all or some portion of that person’s employment earnings for that period; (k) “security” has the meaning set out in

section 56(1)(e); (1) “statutory obligation” means an obligation imposed by an enactment

(2) For the purposes of subsection (1)(c), (

a) a reference to an existing state of affairs or to an event that has taken place refers to a state of affairs or event that is existing or that has taken place when the relevant garnishee summons is served on the garnishee, and (

b) a reference to an existing agreement includes an agreement that amends or replaces an agreement that was existing when the relevant garnishee summons was served on the garnishee. General principles re garnishment 78 For the purpose of enforcing a writ by means of garnishment, the following applies: (

a) except as otherwise provided by this or any other enactment, any current obligation or future obligation is attachable by garnishment; (

b) an obligation that is evidenced by an instrument is not attachable by garnishment; (

c) a garnishee summons may be issued against more than one obligation; (

d) subject to the regulations, if a garnishee summons is in effect and another garnishee summons is issued against the same obligation, that subsequent garnishee summons is of no effect; (

e) a garnishee summons attaches the garnished obligation when the garnishee summons is served on the garnishee, (

f) an obligation that is owed to an enforcement debtor by a person carrying on business as a partnership within Alberta may be attached if the garnishee summons is served on the partnership within Alberta notwithstanding that one or more members of the partnership do not reside in Alberta; 59

(

g) where a joint entitlement is owed to an enforcement debtor and any other person, a garnishee summons may be issued against that joint entitlement; (

h) a payment made by a garnishee in accordance with this Part or on a judgment granted under

section 84 discharges the garnishee, to the extent of the payment, as against the enforcement debtor; (

i) a garnishee is entitled to a set-off to which the garnishee would have been entitled in the absence of garnishment proceedings if (

i) the right to the set-off already existed when the garnishee summons was served on the garnishee, (ii) the right to the set-off arose after the garnishee summons was served on the garnishee but the set-off arose in consequence of an obligation entered into by the garnishee prior to service of the garnishee summons, or (iii) it would be inequitable not to allow the set-off; (

j) money held by the clerk is not subject to garnishment. When garnishee summons is in effect 79(1) Subject to subsection (2), a garnishee summons expires one year from the day on which it was issued.

(2) Where a garnishee summons is issued in respect of a deposit account, the garnishee summons expires 60 days from the day on which it was issued.

(3) A garnishee summons remains in effect until the earliest of the following occurs: (

a) the garnishee summons expires; (

b) the garnishee pays the garnishee summons amounts to the clerk who issued the garnishee summons; (

c) the enforcement creditor notifies the garnishee that the garnishee summons is no longer in effect; (

d) the garnishment proceedings are terminated by order of the Court. 60

Discretionary exemption 80 Where the source of a garnished future obligation (

a) is property of the enforcement debtor, or (

b) is an agreement between the enforcement debtor and the garnishee, the Court may exempt from attachment as much of the obligation as is required by the enforcement debtor to keep or maintain the property or to perform the agreement, as the case may be. Employment earnings81(1) For the purposes of garnishing an enforcement debtor’s employment earnings from the enforcement debtor’s employer, the following applies: (

a) in any month during which a garnishee summons is in effect, the garnishee summons attaches the amount, if any, by which an enforcement debtor’s net pay for the month exceeds the employment debtor’s actual employment earnings exemption for the month; (

b) the employment earnings that are attached by a garnishee summons in any month must, at the end of the enforcement debtor’s last pay period that ends during the month, be paid by the garnishee to the clerk who issued the garnishee summons; (

c) at the end of an enforcement debtor’s last pay period for each month during which a garnishee summons is in effect, the garnishee shall deliver to the clerk who issued the garnishee summons a statement setting out (

i) the enforcement debtor’s total employment earnings for the pay periods that ended during the month, (ii) the number of the enforcement debtor’s dependants, and (iii) the particulars of any amounts deducted in calculating the enforcement debtor’s net pay for the month; (

d) subject to clause (e), an enforcement debtor's actual employment earnings exemption for any month is the sum of (

i) the enforcement debtor’s minimum exemption, and 61

(ii) one half of any amount by which the enforcement debtor’s net pay exceeds the enforcement debtor’s minimum exemption; (

e) an enforcement debtor’s actual employment earnings exemption for any month shall not exceed the enforcement debtor’s maximum exemption; (

f) an enforcement debtor’s minimum and maximum employment earnings exemption for any month must be determined in accordance with the regulations; (

g) if the enforcement debtor earns employment income from more than one source, the Court on application may reduce or eliminate the enforcement debtor’s actual exemption that is applicable to any source of employment income; (

h) if an enforcement debtor’s employment earnings from a particular source vary substantially between months by reason that the enforcement debtor is paid (

i) at intervals in excess of one month, (ii) at irregular intervals, or (iii) in irregular amounts, the Court on application may increase the minimum or maximum exemption for any particular month, so that the enforcement debtor’s total exemptions over the course of the garnishment proceedings will approximate what they would have been if the enforcement debtor’s employment earnings had been uniformly distributed over the relevant months; (

i) a garnishee’s compensation for dealing with the garnishee summons as permitted under this Part must always be included in the calculation of the amount attached by a garnishee summons, but may actually be deducted from the enforcement debtor’s employment earnings only where the debtor’s net pay exceeds the enforcement debtor’s actual exemption; (

j) the portion of an enforcement debtor’s employment earnings that is exempt from garnishment and the portion that is attached by a garnishee summons issued in respect of a judgment for the payment of alimony or maintenance must be determined in accordance with the Maintenance Enforcement Act; 62

(

k) an interruption of less than 30 days in an enforcement debtor’s employment shall not be taken into account in determining the effect of a garnishee summons issued against the enforcement debtor’s employment earnings. (2) Sections 79(3)(

b) and 80 do not apply to a garnishee summons issued against employment earnings. Joint entitlement 82 For the purposes of garnishing a joint entitlement in which an enforcement debtor has an interest, the following applies: (

a) on being served with a garnishee summons the garnishee’s response to the summons must include the names and addresses of the joint obligees other than the enforcement debtor; (

b) subject to clause (c), after a garnishee has responded to a garnishee summons, the instructing creditor must serve a copy of the garnishee summons and a notice of the garnishee’s response on each joint obligee; (

c) if disclosure of a joint obligee’s address would be unlawful or a breach of a legal duty owed by the garnishee to the obligee, the garnishee, instead of complying with clause (a), must (

i) serve the garnishee summons on the obligee, and (ii) certify in the garnishee’s response that the garnishee has done so; (

d) where a joint entitlement is owed to an enforcement debtor and any other person, it is presumed for the purposes of this Part that, subject to clauses (e), (

f) and (g), an equal portion of the joint entitlement is owed to each joint owner, (

e) if, on an ex parte application by an enforcement creditor, it appears to the Court that the enforcement debtor may be beneficially entitled to a larger portion of the joint entitlement than is presumed under clause (d), the Court may require the garnishee to pay the larger portion to the clerk; (

f) if an amount is received by the clerk that is in excess of the portion of a joint entitlement that is attributed to the enforcement debtor under clause (d), that amount may not be distributed unless the Court is satisfied, on an application on notice to the other obligees, that the enforcement debtor is beneficially entitled to the excess amount; 63

(

g) on the application of any interested person, the Court may determine the actual beneficial interest of each joint obligee; (

h) when money is received by the clerk in respect of a joint entitlement, that money shall not, unless the Court otherwise directs, be distributed until 30 days have expired from the day that the notice is served on all the joint obligees. Deposit accounts 83(1) For the purposes of determining whether a deposit account obligation has arisen or is payable, a condition of the account agreement (

a) that the account holder must apply in person to make or give notice before making a withdrawal, or (

b) that any person making a withdrawal must present a pass-book or other document to the garnishee, shall be disregarded for the purposes of this Part.

(2) Notwithstanding

section 79, a garnishee summons that attaches a joint account only attaches the portion of the joint entitlement that is a current obligation.

(3) Where the employment earnings of an enforcement debtor are paid directly into a deposit account by or on behalf of the enforcement debtor’s employer, the enforcement debtor may apply to the Court for an order directing that the enforcement debtor be entitled to an employment earnings exemption similar to that which the enforcement debtor would have been entitled to if the employment earnings had been garnished from the employer.

(4) The Court may on application make any order necessary to prevent a garnishee from being prejudiced by the operation of this section. Enforcement of garnishee’s duties 84(1) Where a garnishee (

a) does not comply with any requirement of this Part, the Court may grant appropriate relief on the application of an enforcement creditor, or (

b) has failed to pay money to the clerk in accordance with this Part, the Court may grant judgment against the garnishee for the amount of the garnishee summons or a lesser amount as the Court considers appropriate in the circumstances. 64

(2) A judgment granted under subsection (1)(

b) may be in the name of the creditor making the application but the judgment is for the benefit of all the enforcement creditors who would have shared in the distribution if the money had been paid to the cleric in accordance with this Part.

PART 9 RECEIVERS AND SPECIAL REMEDIES Court appointed remedies 85 Notwithstanding any rule of law or equity to the contrary, where certain exigible property of an enforcement debtor cannot otherwise be conveniently realized, the Court on the application of an enforcement creditor may do one or more of the following: (

a) appoint a receiver of the property; (

b) order the enforcement debtor or any person in possession or control of the property to deliver the property to an agency or to another person named in the order; (

c) enjoin the enforcement debtor or any other person from disposing of or otherwise dealing with the property; (

d) make any other or additional order that the Court considers necessary or appropriate to facilitate realization of the property. Considerations re appointment of receivers 86 In determining whether to appoint a receiver under

section 85, the Court must consider at least the following: (

a) whether it would be more practical to realize on the property through other proceedings authorized by this Act; (

b) whether the appointment of a receiver would be an effective means of realizing on the property; (

c) the probable cost of the receivership in relation to the probable benefits to be derived by the appointment of a receiver; (

d) whether the appointment of a receiver would cause undue hardship or prejudice to the enforcement debtor or a third person; (

e) the likelihood of the writs against the enforcement debtor being satisfied without resorting to the property in question. 65

Receivers87 With respect to receivers, the following applies: (

a) a person may not be appointed as a receiver unless that person (

i) satisfied the qualifications, if any, set out in the regulations, and (ii) has agreed in writing to act as a receiver in respect of the matter for which the appointment is to be made; (

b) the Court may give a receiver those powers that the Court considers necessary or appropriate for the realization of the property, including, without limiting the generality of the foregoing, the power to manage or sell the property or bring any proceedings in relation to the property; (

c) unless otherwise ordered by the Court, a receiver may take into the receiver’s custody and control the property over which the receiver is being appointed.

PART 10 EXEMPTIONS Exempted property 88 The following property of an enforcement debtor is exempt from writ proceedings: (

a) the food required by the enforcement debtor and the enforcement debtor’s dependants during the next 12 months; (

b) the necessary clothing of the enforcement debtor and the enforcement debtor’s dependants that are of a value not exceeding an amount prescribed by the regulations; (

c) household furnishings and appliances that are of a value not exceeding an amount prescribed by the regulations; (

d) one motor vehicle that is of a value not exceeding an amount prescribed by the regulations; (

e) medical and dental aids that are required by the enforcement debtor and the enforcement debtor’s dependants; (

f) in the case of a enforcement debtor (

i) who is a bona fide farmer, and 66

(ii) whose principal source of livelihood is farming, 160 acres if the enforcement debtor’s principal residence is located on that 160 acres and that 160 acres is part of that enforcement debtor’s farm; (

g) the principal residence of an enforcement debtor, including a residence that is a mobile home, where the enforcement debtor’s equity in that residence does not exceed an amount prescribed by the regulations for that residence but if the enforcement debtor is a co-owner of the residence the amount of the exemption allowed under this provision is reduced to an amount that is proportionate to the enforcement debtor’s ownership interest in the residence; (

h) in the case of an enforcement debtor whose primary income is not earned from farming operations, personal property not exceeding in value an amount prescribed by the regulations that is used by the enforcement debtor to earn income from the enforcement debtor’s occupation; (

i) in the case of an enforcement debtor whose primary income is earned from farming operations, the personal property that is necessary for the proper and efficient conduct of the enforcement debtor’s farming operations for the next 12 months; (

j) any property as prescribed by the regulations. Property exceeding exempted values 89(1) Where the enforcement debtor’s equity in the property referred to in

section 88 exceeds the prescribed value of the exemption for the property, that property is subject to sale pursuant to writ proceedings.

(2) If property to which subsection (1) applies is sold pursuant to writ proceedings, the following applies: (

a) an agency shall, before distributing any of the proceeds of the sale under

Part 11, (

i) pay to the enforcement debtor an amount that is equal to the prescribed value of the exemption, or (ii) where the property was subject to a subordinate security interest or encumbrance, pay to the secured creditor the lesser of (

A) the prescribed value of the exemption, and 67

(

B) the amount owed by the enforcement debtor to the secured creditor; (

b) clause (

a) does not apply where the enforcement debtor has other property of the same description that is exempted under

section 88; (

c) except where money paid to an enforcement debtor under clause (

a) or

section 98(

a) is intermingled with other funds of the enforcement debtor, that money and any deposit accounts into which that money is paid is exempt for a period of 60 days from the day that the money is paid to the enforcement debtor. Selection of property 90(1) If (

a) an enforcement debtor owns more than one item of a type of property for which there is an exemption under

section 88, and (

b) the total value of the items exceeds the maximum prescribed value of the exemption for that type of property, the enforcement debtor may select the items, up to the maximum prescribed value of the exemption, that will be exempt.

(2) If the enforcement debtor does not in a timely manner make a selection under subsection (1), the bailiff may select the items that are exempt. Determination of exemption 91 On application to the Court to determine whether property is exempt, the Court must make its determination on the basis of the circumstances that exist (

a) at the time of the seizure, in the case of personal property that has been seized, and (

b) at the time that the notice of intention to sell is given, in the case of enforcement against land. Estate92(1) Where an enforcement debtor is deceased, the property of that enforcement debtor that would be exempt if the enforcement debtor were alive remains exempt from writ proceedings against the enforcement debtor’s estate for the period of time that the property is required for the maintenance and support of the deceased enforcement debtor’s dependants. 68

(2) For the purposes of

section 90, if an enforcement debtor has died, the representative of the enforcement debtor’s estate may make a selection of the property to be exempt. Non-applic ability of

Part 93 The exemptions set out in this Part do not apply to the following: (

a) to an enforcement debtor that is not an individual; (

b) to writ proceedings on a judgment for the payment of maintenance or alimony; (

c) to property that the enforcement debtor has abandoned; (

d) to writ proceedings on a money judgment arising out of

an act for which the enforcement debtor has been convicted of an offence under the Criminal Code (Canada).

PART 11 DISTRIBUTIONS Definition94 In this Part, “distributing authority” means (

a) in the case of writ proceedings other than garnishment, an agency, and (

b) in the case of garnishment, the clerk. Claim to be treated as a writ 95 For the purposes of this Part, a claim made against an enforcement debtor under an enactment other than this Act shall be treated in the same manner as a related writ if (

a) under that enactment (

i) the claim is deemed to be or is referred to as a writ of enforcement or it is otherwise indicated in that enactment that the claim is to be treated as a writ of enforcement, or (ii) the person making the claim is deemed to be or is referred to as an enforcement creditor or it is otherwise indicated in that enactment that the person making the claim is to be treated as an enforcement creditor, and 69

(

b) the claim is registered in the Personal Property Registry. Applies to all distributions 96(1) All money that (

a) is realized through writ proceedings, or (

b) is otherwise received by an agency as a result of the existence of an enforcement debt, shall be dealt with in accordance with this Part.

(2) Where property that is bound by a writ is sold in distress proceedings under a landlord’s right of distraint or in proceedings to enforce a security interest or encumbrance that has priority over the writ, (

a) if the property is sold by a distributing authority, this Part applies to any portion of the proceeds that exceeds the amount (

i) for which the landlord is entitled to distrain, or (ii) that is necessary to discharge the security interest or encumbrance, and (

b) if the property is sold by a person other than a distributing authority, that person must pay to an agency any portion of the proceeds that exceeds the amount necessary to discharge the security interest or encumbrance.

(3) Nothing in this Part other than

section 102 shall be construed so as to prejudice any right to money that is based on an interest, including a security interest or an encumbrance, (

a) in the money, or (

b) in the property from which the money is derived, where that interest has priority over the relevant writs. Distributable fund 97 For the purposes of determining what constitutes a distributable fund, the following applies: (

a) subject to clauses (

b) and (c), any money to which this Part applies constitutes a distributable fund when the money is received by a distributing authority; 70

(

b) where this Act requires that money that is received by a distributing authority not be distributed before a certain period of time elapses or a certain event occurs, that money constitutes a distributable fund only when the period elapses or the event occurs; (

c) money payable in accordance with

section 89(2) or 98 does not constitute or form pan of a distributable fund. Money derived from exempted property 98 Where a distributing authority receives money that is exempt or that represents the proceeds of exempt property, that money constitutes a distributable fund subject to the following payments being made from that money: (

a) if an enforcement creditor against whom the exemption does not apply has a related writ, the distributing authority (

i) shall pay to that enforcement creditor the lesser of (

A) the amount outstanding on the writ, and (

B) the maximum prescribed value of the exemption, and (ii) shall, insofar as the remaining balance permits, pay to the enforcement debtor the amount, if any, by which the maximum prescribed value of the exemption exceeds the amount of the payment made under subclause (i); (

b) if there is not an enforcement creditor who qualifies to be paid under clause (a), the distributing authority shall, insofar as the amount of that money held by the distributing authority permits, pay to the enforcement debtor an amount that is equal to the maximum prescribed value of the exemption. Eligible claims99(1) The eligible claims against a distributable fund are (

a) the amounts outstanding on all related writs that are in force against the enforcement debtor, and (

b) the costs that the Court has directed to be paid out of the fund pursuant to

section 103(2), if not otherwise included in an eligible claim. 71

(2) Subject to

section 103(2), eligible claims against a distributable fund shall be identified and the amount of each claim fixed as of the date that the fund is constituted. (

Document details

Collection	Alberta — Bills
Citation	L23 S2 2202
Type	bill
Volume / chapter	L23 S2 2202
Language	en
Format	json
Source	PROVINCIAL
Identifier	8752de27dfc30e9dddf3ca59646b41339965fe6a

Source file is stored in the law ingest library (json).