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SNL1996

CHAPTER J-1.1

JUDGMENT ENFORCEMENT ACT

Amended:

1997 c3; 1997 c12 s8; 1998 c6 s16; 1998 c22; 1998 cP-7.1 s81;

2001 c24; 2001 c42 s23; 2004 cL-3.1 s43; 2006 cS-31.1 s85; 2006 c44; 2007 cS-13.01 s109; 2009 c30 s8; 2013 c16 s25

CHAPTER J-1.1

AN ACT RESPECTING JUDGMENT

ENFORCEMENT

(Assented to December 19, 1996)

Analysis

Short title

Interpretation

PART I

GENERAL

Application

3.1

Labrador Inuit rights

Crown is bound

Administration of enforcement system

Assistance and advice

Offence

Execution of documents, etc.

Payment of fees and expenses

Discontinuance of proceedings

Application to court

Service

Registry

Searches of the registry

Recovery for loss

Cause of action

Payment of claim for loss

Administrative records

Public access to records

Statement of status

Notice of change

Enforcement debt

Enforcement documents

Employee protection

PART II

PREJUDGMENT RELIEF

Definitions

Process for enforcement

Attachment order

Scope of attachment order

Attachment order without notice

Termination of attachment order

Provision of alternative security

Sale

, etc. of attached property

Registration of attachment order and disclosure

Priorities

Enforcement proceedings, etc.

Inconsistent actions

PART III

NOTICE OF JUDGMENT

Definitions

Registration required

Effective notice of judgment and enforcement by contempt

Money judgment not in force

Registration

Amendment, transfer and data removal

Registration not constructive notice

Error or omission

Discharge and amendment

Property bound

Knowledge of notice of judgment

Subordinate interests

Subsequent interests

Notices of judgment and security interests

Priority status not affected

Disposition of goods

Fixtures and growing crops

Negotiable instruments

Protected purchaser of security

Other rights

Priority of liens

Effect of seizure

Interests in land

Exceptions to binding

Interaction between notices of judgment

Interest subject to sale

Tracing proceeds

PART IV

INFORMATION REGARDING

ENFORCEMENT

Voluntary questionnaires

Sheriff questionnaire

Examination

Sheriff to be given notice

Identification of debtor

Disclosure

PART V

SEIZURE OF PERSONAL PROPERTY

When seizure available

Instructions to seize

Instruction requirements

Scope of seizure

Demand on third party

Effecting seizure

Entry onto premises

Seizure valid notwithstanding irregularity

Custody of seized property

Report

Termination of seizure and notice of claim

Sale

of property, etc.

PART VI

SPECIAL SEIZURE MECHANISMS

Application of

Part

Cash and instruments

Obligations

Products of nature

Fixtures

Mobile homes

Partners interest

Definitions

Effecting seizure

Powers of sheriff on seizure

Duties of private company

Sheriff may deal with seized property

Liability of private company or securities intermediary

Liquidation of security

Liquidation procedure re private company shares

Missing security certificate

Effect of transfer

Rep. by 2007 cS-13.01 s109

PART

VII

LAND

Application of

Part

Instructions

Method of sale

Service of documents and entry on land

Unharvested products

Waiting period

Sale

of land

Severance of joint tenancy, etc.

Transfer of land

Small claims judgments

109.1

Labrador Inuit lands exempt

PART VIII

GARNISHMENT

Definitions

General principles re garnishment

Initiating garnishment proceedings

Contents of garnishee order

When garnishee order is in effect

Discretionary exemption

Garnishee's duties

Payment as discharge

Garnishee dispute

Money not to be distributed

Money in court

Employment earnings

Joint entitlement

Deposit accounts

Conditional obligation

Enforcement of garnishee's duties

PART IX

RECEIVERS AND

SPECIAL REMEDIES

Court appointed remedies

Considerations re appointment of receivers

Receivers

PART X

EXEMPTIONS

Definitions

Non-applicability of

Part

Exempted property

131.1

Exemption of registered plans

Co-ownership

Property exceeding exempted values

Extension of exemptions

Other dispositions of exempt property

Selection of property

Survival of exemptions

Determination of exemption

Income exemption

Income exemption certificate

Income exemption limits

Adjustment of income exemption amount

Extension of income exemption

Claim procedure

Employment earnings protected

Instalment order

Default

Stay of enforcement

Corporations and partnerships

PART XI

DISTRIBUTIONS

Applies to all distributions

Distributable fund

Money derived from exempted property

Eligible claims

Distribution of fund

Surplus

Statement of proposed distribution

Overpayment

Claimant is a debtor

PART XII

DISPUTES

Notice of objection

Application to court

Notice of third party interest

Notice of claim

Procedure

Objection or disputed claim

Claims made outside prescribed period

Non-application to registered interests

Non-application of Part

PART XIII

IMPEACHABLE TRANSACTIONS

Definitions

Exception

Fraudulent transfers

Intent to prefer

Preferential effect

What constitutes transaction

Transaction in good faith

Payment to creditor

Restoration of security to creditor

Saving of payment to creditor

Proceeds of property

Declaration from court

Order for preservation

PART XIV

REGULATIONS

Regulations

Forms

Fees

Judicature Act and Rules to apply

PART XV

PENALTIES, REPEAL, AMENDMENTS AND

MISCELLANEOUS

Penalty

Transitional

Transitional

RSN1990 cA-19 Amdt.

RSN1990 cA-20 Rep.

RSN1990 cB-3 Amdt.

RSN1990 cC-28 Amdt.

RSN1990 cC-36 Amdt.

RSN1990 cJ-2 Amdt.

RSN1990 cJ-4 Amdt.

RSN1990 cL-11 Amdt.

SN1995 cL-16.1 Amdt.

RSN1990 cP-3 Amdt.

SN1995 cP-31.1 Amdt.

RSN1990 cP-41 Amdt.

RSN1990 cS-6 Amdt.

1991 c39 Amdt.

RSN1990 cS-16 Amdt.

RSN1990 cS-31 Amdt.

Review

Commencement

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:

Short title

This Act may be cited as the Judgment Enforcement Act

1996 cJ-1.1 s1

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Interpretation

(1)In this Act

(a)

"accession" means goods that are installed in or affixed to other goods;

(b)

"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 agricultural operations including raising, fattening or grazing livestock;

(c)

"aquaculture" means the cultivation of plants and animals that, at most stages of their development or life cycles, live in an aquatic environment;

(d)

"attachment order" means an attachment order issued under

Part II;

(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

(iii)

heating, air conditioning or conveyancing devices, or

(iv)

machinery installed in a building 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 a monetary obligation and a security interest in or lease of specific goods or specific goods and accessions;

(g)

[Rep. by 2007 cS-13.01 s109]

(h)

"court", unless the context indicates otherwise, means the Trial Division or a judge of the Trial Division;

(i)

"creditor", except in

Part XIII and unless the context indicates otherwise, means a person in whose favour there is a notice of judgment;

(j)

"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, and includes trees only if they are

(

i) being grown as nursery stock,

(ii)

being grown for uses other than for the production of lumber and wood products, or

(iii)

intended to be replanted in another location for the purpose of reforestation;

(k)

"debtor" unless the context indicates otherwise, means a person against whom there is a notice of judgment;

(l)

"deposit account" means a chequing, savings, demand or similar account at a bank, trust company, credit union or other deposit-taking institution in the province but does not include an account or arrangement under which money is deposited for a fixed term, whether or not the term may be abridged, extended or renewed;

(m)

"distribute", "distribution" and "distributable" means to pay out or a payment in accordance with

Part XI;

(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, to the transferee of the person, to bearer or to the order of a named person;

(o)

"eligible claim", unless the context indicates otherwise, means an eligible claim referred to in

section 153;

(p)

"enforcement debt" means the amount calculated under

section 22 with respect to a money judgment for which there is a notice of judgment;

(q)

"enforcement documents" means the documents referred to in

section 23;

(r)

"enforcement proceedings" means an action, step or measure authorized by this Act to be taken for the purpose of enforcing a money judgment, and includes an order made under subsection 10(2) of the Small Claims Act,

but does not include proceedings authorized under

Part XIII;

(s)

"exempt" means not subject to enforcement proceedings;

(t)

"exigible" means subject to enforcement proceedings;

(u)

"farming" means the production of agricultural products;

(v)

"fish" means fish, including shellfish and crustaceans and marine mammals;

(w)

"fishing" means fishing for or catching fish by a method other than from an aquaculture facility;

(x)

"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;

(y)

"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;

(z)

"instructing creditor" means the creditor upon whose instructions or as a result of whose initiation certain enforcement proceedings are, as provided in this Act, taken or continued;

(aa)

"instrument" means

(

i) a bill, note or cheque within the meaning of the Bills of Exchange Act

( Canada

(ii)

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 a 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, a security certificate, or

(

v) a writing that provides for or creates an interest in land, or

(vi)

a writing that provides for or creates a mortgage or charge in respect of an interest in land and specifically identifies the interest in the writing;

(bb)

"judgment" includes an order, decree, certificate, duty or right that may be enforced as or in the same manner as a judgment of the court including a judgment made under the Small Claims Act

and the Federal Court Act

, but does not include a support order registered with the director under the Support Orders Enforcement Act, 2006

, except as provided in

section 3;

(cc)

"land", except in

Part III

, includes

(

i) an interest in land, and

(ii)

except where the context otherwise requires a fixture,

but does not include

(iii)

growing crops, or

(iv)

an interest in land that secures an obligation or an obligation that arises in connection with an interest in or lease of land;

(dd)

"maintenance claim" means a money judgment that is or is based on a support order as defined in the Support Order Enforcement Act

(ee)

[Rep. by 2007 cS-13.01 s109]

(ff)

"minister" means the minister appointed under the Executive Council Act

to administer this Act;

(gg)

"money judgment" means a judgment requiring a person to pay money, or that part of a judgment which requires a person to pay money but does not include money payable under an order for contempt;

(hh)

"notice of attachment" means a notice of an attachment order which is registered under this Act and the data authorized to effect that registration and where the context permits, the data authorized to be registered with respect to an amendment of that attachment order;

(ii)

"notice of claim" means, except where the context otherwise requires, a notice of claim referred to in

section 162;

(jj)

"notice of judgment" means a notice of a money judgment registered under this Act and, where the context permits, the data authorized to be registered with respect to an amendment, renewal or discharge of a notice of judgment;

(kk)

"notice of objection" means, a notice of objection described in

section 159;

(ll)

"notice of seizure" means a notice from the sheriff to the debtor indicating that property is seized;

(mm)

"obligation" means a legal or equitable duty to pay money;

(nn)

"person" when used to refer to a creditor includes the Crown in right of the province except where the context indicates otherwise;

(oo)

"personal property" means, except as provided in

Part III

, property other than land;

(oo.1)

"personal property registry" means the personal property registry established under the Personal Property Security Act;

(pp)

"products of aquaculture" includes all cultivated plants and animals that, at most stages of their development or life cycles, live in an aquatic environment while in their unmanufactured state and in the possession of a person whose occupation is aquaculture;

(qq)

"products of the sea, lakes and rivers" includes fish of all kinds, marine and fresh water life and other substances taken from water while in their unmanufactured state and in the possession of a person whose occupation is fishing, but does not include products of aquaculture;

(rr)

"property" includes

(

i) things, as well as rights or interests in things,

(ii)

a thing regarded in law or equity as property, or as an interest in property,

(iii)

a right or interest that can be transferred for value from one person to another,

(iv)

a right, including a contingent or future right, to be paid money or receive another kind of property, and

(

v) a cause of action;

(ss)

"register" and "registered" unless the context indicates otherwise, means registered in the registry;

(tt)

"registry" unless the context indicates otherwise means the registry established under

section 13;

(uu)

"registry of deeds" means the Registry of Deeds established under the Registration of Deeds Act

(vv)

"related notice of judgment" means

(

i) with respect to a particular debtor, a notice of judgment that would be disclosed if a search was conducted of the registry using the name of that debtor as shown in information received from a creditor,

(ii)

with respect to a defendant under

Part II, a notice of judgment that would be disclosed if a search was conducted of the registry using the name of that defendant as shown on the attachment order,

but does not include

(iii)

a notice of judgment that would clearly be excluded as not applying to the particular debtor or defendant based on the information disclosed on a search of the registry, or

(iv)

a notice of judgment with respect to a debtor or defendant which the sheriff or creditor knows is not the particular debtor or defendant;

(ww)

"secured obligation" means an obligation secured by an interest in property;

(ww.1)

"security" means a security as defined in the Securities Transfer Act

(xx)

"security certificate" means a security certificate as defined in the Securities Transfer Act

(yy)

"security interest", with respect to personal property, means

(

i) an interest in personal property that secures payment or performance of an obligation, but does not include the interest of a seller who has shipped goods to a buyer under a negotiable bill of lading or its equivalent to the order of the seller or to the order of an agent of the seller, unless the parties have otherwise evidenced an intention to create or provide for a security interest in the goods, and

(ii)

the interest of

(

A) a consignor who delivers goods to a consignee under a commercial consignment,

(

B) a lessor under a lease for a term of more than one year,

(

C) a transferee under a transfer of an account or a transfer of chattel paper, and

(

D) a buyer under a sale of goods without a change of possession

that does not secure payment or performance of an obligation;

(yy.1)

"serial numbered goods" means goods that are prescribed by the regulations as serial numbered goods;

(zz)

"sheriff" means the High Sheriff appointed under the Sheriff's Act, 1991

(zz.1)

"small claims creditor" means a creditor in whose favour there is a notice of judgment with respect to a money judgment made under the Small Claims Act;

(aaa)

"statement of status" means a statement of status referred to in

section 20; and

(bbb)

"wage claim" means the portion of a money judgment that is at a particular time declared by the Director of Labour Standards to be for wages as defined in the Labour Standards Act

(2) For the purpose of this Act

(

a) a natural person knows or has knowledge when information is acquired by the person under circumstances in which a reasonable person would take cognizance of it;

(

b) a partnership knows or has knowledge when information 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 it;

(

c) a corporation knows or has knowledge when information, in writing, has been delivered to the corporations registered office or attorney for service, or when information has come to the attention of

(

i) a managing director or officer of the corporation, or

(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 it;

(

d) the members of an association know or have knowledge when information has come to the attention of

(

i) a managing director or officer of the association,

(ii)

a senior employee of the association with responsibility for matters to which the information relates, or

(iii)

all members,

under circumstances in which a reasonable person would take cognizance of it; and

(

e) a government knows or has knowledge when information has come to the attention of a senior employee of the government with responsibility for matters to which the information relates under circumstances in which a reasonable person would take cognizance of it.

(3) A reference in this Act to a specific provision or Part of this Act includes a reference to a regulation made under this Act respecting a matter that is the subject of that provision or Part.

1996 cJ-1.1 s2 ; 1998 c22 s1 ; 1998 cP-7.1 s81 ; 2006 cS-31.1 s85 ; 2007 cS-13.01 s109

PART I

GENERAL

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Application

(1)All money judgments shall be enforced in accordance with this Act.

(2) Notwithstanding subsection (1), where another Act provides for the enforcement of a money judgment, this Act shall not apply, except to the extent that the other Act provides that

(

a) the judgment or order may be enforced as or in the same manner as a judgment of the court; or

(

b) this Act shall apply.

(3) Notwithstanding subsection (1), where a support order filed with the director under the Support Orders Enforcement Act, 2006

is in arrears, the director appointed under that Act may register that support order in accordance with

section 38 and that registered support order, to the extent of the arrears, shall be considered to be a notice of judgment to which this Act applies and the director shall be considered a creditor for the purpose of the Act.

(3.1) Notwithstanding paragraph 2(1)(bb) and subsection (3), where a support order is not filed with the director under the Support Orders Enforcement Act, 2006,

that support order may be registered in accordance with

section 38 and when registered it shall be considered to be a notice of judgment to which this Act applies.

(4) Where

an Act of the province does not provide for the enforcement of a money judgment, this Act shall apply.

(5) The following applies to enforcement proceedings:

(

a) a money judgment, a notice of which is registered, authorizes and directs the sheriff to carry out the instructions of an instructing creditor under this Act;

(

b) except as otherwise provided in this or another Act, all property of a debtor is subject to enforcement proceedings under this Act;

(

c) except as otherwise specifically provided in this or another Act, all enforcement proceedings are considered to be taken on behalf of and for the benefit of all the creditors of a debtor;

(

d) except as provided in this or another Act, a person may not be arrested or imprisoned for defaulting in the payment of a money judgment;

(

e) except as provided in paragraphs (

g) and (

h) an action of the sheriff carried out with the written consent of all interested persons shall be considered to have been carried out in accordance with this Act;

(

f) all rights, duties and functions of creditors and the sheriff under this Act shall be exercised or discharged in good faith and in a commercially reasonable manner;

(

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

(

h) a waiver by a debtor of an exemption given by this Act shall be void; and

(

i) nothing in this

section shall be construed so that it prevents a creditor from soliciting or accepting from a debtor payment that is otherwise lawful.

SN1997 cJ-1.1 s3; 1997 c3 s1 ; 1998 c22 s2 ; 2006 cS-31.1 s85

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Labrador Inuit rights

3.1

This Act shall be read and applied in conjunction with the Labrador Inuit Land Claims Agreement Act

and, where a provision of this Act is inconsistent or conflicts with a provision, term or condition of the Labrador Inuit Land Claims Agreement Act,

the provision, term or condition of the Labrador Inuit Land Claims Agreement Act

shall have precedence over the provision of this Act.

2004 cL-3.1 s43

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Crown is bound

(1)This Act binds the Crown in exercising rights or remedies as a creditor in enforcement proceedings.

(2) Notwithstanding subsection (1), this Act shall not prevent the Crown from collecting a debt through proceedings otherwise available to the Crown under another Act.

1996 cJ-1.1 s4

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Administration of enforcement system

(1)The sheriff shall supervise the registry and the system of enforcement of judgments under this Act.

(2) The sheriff may designate an employee of his or her office or another employee of the government of the province to assist in the supervision of the judgment enforcement system under this Act and to co-ordinate enforcement proceedings conducted under this Act.

1996 cJ-1.1 s5

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Assistance and advice

The sheriff may use assistance and advice, including the paid assistance and advice of agents, brokers or advisors in order to carry out the duties and functions under this Act.

1996 cJ-1.1 s6

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Offence

(1)Except where authorized, a person shall not

(

a) carry out or attempt to carry out the functions that may only be carried out by the sheriff under this Act;

(

b) purport to be a person in a position to or authorized to carry out functions that may only be carried out by the sheriff under this Act; or

(

c) use a name, title, description or abbreviation, or otherwise act in a manner that expressly or otherwise might lead to the belief that the person is in a position to or authorized to carry out functions that may be carried out by the sheriff under this Act.

(2) A person who acts contrary to subsection (1) is guilty of an offence.

1996 cJ-1.1 s7

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Execution of documents, etc.

For the purpose of dealing with or disposing of property under this Act, the sheriff may

(

a) do

an act or thing that would otherwise be done by a debtor; and

(

b) execute or endorse a document that would otherwise be executed or endorsed by a debtor.

1996 cJ-1.1 s8

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Payment of fees and expenses

(1)The sheriff is not required to act on instruction from a creditor until the creditor has paid the required fees and the reasonably anticipated expenses of carrying out the instruction, or made arrangements for payment that are satisfactory to the sheriff.

(2) The sheriff may terminate enforcement proceedings where the instructing creditor has not paid the required fees and reasonably anticipated expenses of continuing the enforcement proceedings, or made arrangements for payment that are satisfactory to the sheriff, within 15 days of a request for payment from the sheriff.

(3) A person who has instructed the sheriff to conduct enforcement proceedings under this Act and the solicitor for that person are liable to pay the sheriff's fees and expenses permitted by law.

1996 cJ-1.1 s9

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Discontinuance of proceedings

(1)Before seized property is released, other than as provided in subsection 80(2), or a garnishment is discontinued, a notice of the release or the discontinuance shall, not less than 15 days before the date of the release or discontinuance of the garnishment be served on all the creditors having related notices of judgment at the time that the notice was given.

(2) Before a sale of land under

Part VII

is discontinued,

(

a) a notice of discontinuance in the required form shall be served on all creditors with related notices of judgment at the time the notice was served; and

(

b) a sale may be postponed for not fewer than 15 days from the service of the notice referred to in paragraph (a).

(3) If within 15 days from the day of being served with a notice under this section, a creditor instructs the sheriff, in writing, to continue the proceedings,

(

a) the proceedings shall continue; and

(

b) where more than one creditor instructs that the proceedings be continued, the creditor whose instructions were first received by the sheriff shall from then on be considered to be the instructing creditor.

1996 cJ-1.1 s10

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Application to court

(1)The court or, the Court of Appeal where an application is made to that court, may, on application by an interested person under this Act, or incidental to, or in substitution for an order made or sought under another Act, give directions with respect to or determine a matter or issue that arises out of enforcement proceedings.

(2) On considering an application under this Act, the court or, the Court of Appeal, where an application is made to that court, may

(

a) make an 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 a person in property that is subject to enforcement proceedings;

(

b) give directions to a 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 enforcement proceedings;

(

d) in whole, or in part, and on terms that it considers appropriate, stay the enforcement of rights provided in this Act;

(

e) direct that a creditor replace another creditor as the instructing creditor;

(

f) abridge a 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 another order, direction or relief that is permitted or otherwise provided for under that provision;

(

h) make an order granted under this Act subject to the terms or conditions that it considers appropriate or necessary;

(i)

[Rep. by 1998 c22 s3]

(

j) award costs; and

(

k) make another order, not inconsistent with this Act, that it considers appropriate or necessary.

1996 cJ-1.1 s11 ; 1998 c22 s3

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Service

(1)Except as otherwise provided in this Act, a notice, order, approval or other document is sufficiently served or given where delivered personally or sent by registered mail to the person to whom service or delivery is to be made at the latest known address of that person.

(2) Except as otherwise provided in this or another Act, service of a notice, order, approval or other document shall be carried out by the sheriff.

(3) Where service upon a debtor is required under

Part VII

, and the debtor cannot be served personally or by registered mail, the sheriff may post a notice on the land of the debtor in addition to attempting service by the other required means and that notice shall indicate the information required to be served.

(4) Where a notice, order, approval or other document is required to be served under this Act within a fixed time period or otherwise, failure to make that service within the required time shall not invalidate enforcement proceedings under this Act provided that the debtor, creditor or another person has not been demonstrably prejudiced by that failure.

(5) Where service of a document is carried out by the sheriff under this Act, that document may be a facsimile copy of the original document.

1996 cJ-1.1 s12

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Registry

(1)There shall be for the province a registry for the purpose of registering

(

a) notices of judgment and notices of attachment under this Act; and

(

b) notices and registrations of documents as provided in another Act.

(2) The sheriff shall maintain a computer storage and retrieval system consisting of hardware, software, electronic and other equipment and facilities necessary for the registration of notices and other information under this or another Act.

(3) Registration of the notices and other information in the registry, in relation to the offshore area, shall be effected in accordance with the provisions of this Act.

(4) In this

section "offshore area" means offshore area as defined in the Hibernia Development Project Act

( Canada

(5) The registration of a notice and other information in the registry shall not be considered to be constructive notice to another person of the existence of that notice or information.

1996 cJ-1.1 s13

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Searches of the registry

(1)Upon payment of a fee, a person may search the records of the registry and obtain a printed search result.

(2) A search under subsection (1) may be conducted for a

(

a) debtor, in the name of that debtor;

(

b) defendant under

Part II, in the name of the defendant; or

(

c) the serial number of goods of a kind that are prescribed by the regulations as serial numbered goods.

(3) A printed search result that purports to be issued by the sheriff is receivable as evidence and is, in the absence of evidence to the contrary, proof of the registration of a notice of judgment, notice of attachment or other notice to which the search relates.

1996 cJ-1.1 s14 ; 1998 cP-7.1 s81

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Recovery for loss

(1)A person may bring an action against the sheriff to recover loss or damage suffered by that person because of an error or omission in the operation of the registry if the loss or damage resulted from reliance on a printed search result issued by the registry.

(2) The sheriff is not liable for loss or damage suffered by a person because of

(

a) oral advice given by the sheriff, an employee or agent respecting this Act or another Act that provides for registration in the registry, or the operation of the registry, unless the person bringing the action proves that the sheriff, employee or agent was not acting in good faith; or

(

b) the failure of the electronic registry to effect a registration or to effect a registration correctly.

1996 cJ-1.1 s15

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Cause of action

(1)Except as otherwise provided in this Act, 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, or the Provincial Court

where the amount claimed does not exceed the jurisdictional limits of that court, finds that a loss or damage has been suffered, to a judgment for the damages suffered or $200, whichever is greater.

(2) Notwithstanding subsection (1) and the Proceedings Against the Crown Act

, the sheriff, an employee or agent of the sheriff and a clerk, deputy clerk or other employee of the Provincial Court

is not personally liable for an error or omission in respect of the discharge or purported discharge of a duty or function under this Act.

1996 cJ-1.1 s16 ; 1997 c3 s2 ; 1998 c22 s4 ; 2001 c42 s23

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Payment of claim for loss

(1)The total amount recoverable in an action under

section 15 shall not exceed the amounts prescribed by regulation.

(2) If damages are paid to a claimant under this section, the Crown is subrogated to the rights of the claimant against a person indebted to the claimant whose debt to the claimant was the basis of the loss or damage in respect of which the claim was paid.

(3) If the amount of the damages paid to a claimant is less than the value the claimant would have had if the error or omission had not occurred, the right of subrogation under subsection (2) does not prejudice the right of the claimant to recover in priority to the Crown an amount equal to the difference between the amount paid to the claimant and the value the claimant would have had if the error or omission had not occurred.

(4) The minister responsible for the administration of the Consolidated Revenue Fund may, without action being brought, pay out of the fund the amount of a claim against the sheriff when authorized to do so by the minister on the report of the sheriff setting out the facts and his or her opinion that the claim is just and reasonable.

(5) When an award of damages has been made in favour of a claimant and the time for appeal has expired, or when an appeal is disposed of in whole or in

part in favour of the claimant, the minister responsible for the administration of the Consolidated Revenue Fund shall pay out of the fund the amount specified in the judgment including the costs of the claimant if the judgment so provides.

1996 cJ-1.1 s17

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Administrative records

(1)In addition to the registry established under

section 13, the sheriff shall maintain a computer storage and retrieval system for the purpose of maintaining records of enforcement proceedings made with respect to a money judgment or an attachment order and maintain other records as required by this Act or as considered necessary for the efficient administration of this Act.

(2) The records referred to in subsection (1) shall include records of

(

a) instructions received from creditors;

(

b) steps taken to carry out creditor's instructions and their results;

(

c) notices, orders and statements received;

(

d) money received, indicating the source and the date of receipt;

(

e) money paid out, indicating the amount paid to each recipient;

(

f) the amount of the enforcement debt with respect to a notice of judgment; and

(

g) other matters for which another Act or the regulations require the sheriff to maintain a record for the efficient administration of this Act.

(3) Notwithstanding

section 19, where information is recorded under paragraph (2)(

g) relating to a support order under the Support Orders Enforcement Act, 2006

, that information shall not be released except to indicate to a creditor that there is an outstanding support order under that Act.

1996 cJ-1.1 s18 ; 2006 cS-31.1 s85

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Public access to records

(1)Upon payment of a fee, the sheriff shall provide information required to be maintained under

section 18 which would not be disclosed by a printed search result under

section 14.

(2) Notwithstanding subsection (1),

(

a) the sheriff shall provide information with respect to the status and conduct of enforcement proceedings reasonably requested by a creditor on the status of that creditor or proceedings carried out by the sheriff for that creditor; and

(

b) the sheriff may determine the information which may be released under subsection (1).

1996 cJ-1.1 s19

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Statement of status

(1)A statement of status required under this Act with respect to a money judgment shall state the

(

a) information; and

(

b) current status,

of that money judgment as required by the sheriff.

(2) A statement of status shall be made under oath or affirmation.

1996 cJ-1.1 s20

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Notice of change

(1)A creditor shall deliver to the sheriff written notice of

(

a) a reduction in the amount outstanding on the judgment; or

(

b) a stay of enforcement or proceedings ordered by a court,

within 15 days of the reduction or court order.

(2) Where a creditor does not deliver written notice as provided in subsection (1), the creditor shall be liable for pecuniary loss suffered by the debtor as a result of that noncompliance.

1996 cJ-1.1 s21

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Enforcement debt

Enforcement debt with respect to a notice of judgment is an amount equal to

(

a) the sum of

(

i) the amount outstanding on the judgment as stated in the notice of judgment including registration fees,

(ii)

interest in accordance with the Judgment Interest Act

that has accrued with respect to the judgment,

(iii)

fees or expenses paid or payable by the creditor to the sheriff after the registration of the notice of judgment, and

(iv)

all other amounts to be added to the amount outstanding on the judgment of which the sheriff has written notice,

minus

(

b) the sum of

(

i) the total of all distributions paid to the creditor, or to which the creditor is entitled under

Part XI, and

(ii)

all other amounts to be deducted from the amount outstanding on the judgment of which the sheriff has written notice.

1996 cJ-1.1 s22

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Enforcement documents

(1)The enforcement documents are:

(

a) a notice of seizure, a copy of a garnishee order or a notice of intention to sell land;

(

b) a notice of objection form, together with an envelope addressed to the sheriff;

(

c) a copy of the instructing creditor's notice of judgment;

(

d) a statement of the amount of each enforcement debt with respect to each related notice of judgment;

(

e) a notice of third party interests to be completed by the debtor; and

(

f) instructions to the debtor including a reference to the right to apply for a stay of enforcement.

(2) Enforcement documents shall be in the required form.

1996 cJ-1.1 s23 ; 1998 c22 s5

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Employee protection

(1)An employer shall not dismiss, suspend, lay off, penalize, discipline or discriminate against a debtor who is an employee if the reason for that is related to the commencement or possible commencement of enforcement proceedings under this Act.

(2) A debtor who believes that he or she has been dismissed, suspended, laid off, penalized, disciplined or discriminated against contrary to subsection (1) or (4) may apply to the court and the court may, if it finds reasonable grounds for that belief, make an order in favour of the debtor that it considers just, including an order for reinstatement and an award of damages.

(3) An employer who does not appear to defend an application made under subsection (2) shall be considered to have dismissed, suspended, laid off, penalized, disciplined or discriminated against the debtor who made the application.

(4) An employer who has suspended, laid off, penalized, disciplined, or has discriminated against a debtor who is an employee, while a garnishee order with respect to employment earnings is in effect, or within 6 months after it has ceased to have effect, is guilty of an offence unless a just cause is shown for that action.

(5) A claimant or a creditor who, except as permitted by this Act or by an order of the court,

(

a) conducts inquiries at the place of employment of or through a person who employs a debtor or defendant for the purpose of collecting or enforcing a claim or money judgment;

(

b) delivers a questionnaire under

section 64 or 65 to a person who employs a debtor or defendant; or

(

c) applies under

Part IV for the examination of a person who employs a debtor or defendant,

is guilty of an offence.

(6) For the purpose of subsection (5), the terms "claim", "claimant" and "defendant" have the same meaning as in

Part II.

1996 cJ-1.1 s25 ; 1998 c22 s6

PART II

PREJUDGMENT RELIEF

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Definitions

In this Part

(a)

"claim" means a claim that might result in a money judgment being granted if the claim were 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 a debtor; and

(f)

"third person" means a person other than a defendant or a claimant.

1996 cJ-1.1 s25 ; 1998 c22 s7

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Process for enforcement

Except as otherwise provided in this or another Act, a claim shall be enforced by proceedings under this Part.

1996 cJ-1.1 s26

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Attachment order

(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 the province to establish the claimant's claim; or

(

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

(

i) a judgment or award of the foreign tribunal could be enforced in the province 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 the province.

(2) On hearing an application made under subsection (1) the court may make an attachment order if it is satisfied that

(

a) there is a serious issue to be tried; 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.

1996 cJ-1.1 s27

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Scope of attachment order

(1)The court may in an attachment order

(

a) direct that the order applies

(

i) to all or specific exigible property of the defendant, or

(ii)

to exigible property to be subsequently identified in writing by the sheriff;

(

b) prohibit a dealing with exigible property of the defendant;

(

c) impose conditions or restrictions on 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 claimant to apply for the issuing of a garnishee order;

(

f) appoint a receiver; and

(

g) include in the order a term, condition or provision that the court considers necessary or desirable.

(2) Notwithstanding subsection 27(2), the court shall not grant an attachment order unless the claimant undertakes to

(

a) prosecute the proceeding to judgment without delay; and

(

b) pay damages or indemnity that the court may 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

(

c) to give an additional undertaking that the court considers necessary; and

(

d) to provide security in the form of a bond or otherwise in respect of an undertaking.

(3) A bond required by the court under paragraph (2)(

d) shall be

(

a) in an amount that the court considers appropriate;

(

b) accompanied by 2 sufficient sureties or other sufficient security approved by the court; and

(

c) in the required form,

and the court may require that bonding be provided by a corporation registered under the Insurance Adjusters, Agents and Brokers Act

(4) Where an attachment order is granted, it shall be granted in a manner to cause as little inconvenience to the defendant as is consistent with achieving the purpose for which the order is granted.

(5) 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 claimants claim, including interest and costs, and related notices of judgment and notices of attachment, unless the court is of the view that a limitation of the amount or value would make the operation of the order unworkable or ineffective.

(6) For the purpose of subsection (1),

(

a) if the sheriff is authorized to issue a garnishee order,

Part VIII, with the necessary changes, applies to that garnishment;

(

b) if a receiver is appointed,

Part IX, with the necessary changes, applies in respect of that receivership; and

(

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

(7) An interested person may apply to the court to vary or terminate an attachment order.

1996 cJ-1.1 s28 ; 1998 c22 s8

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Attachment order without notice

(1)An application for an attachment order may be made without notice to another person.

(2) An attachment order made without notice to another person and granted shall specify a date, not more than 30 days from the day that the order is granted, on which the order shall expire unless the order is extended on an application on notice to the defendant.

(3) If the court is satisfied that it would be inappropriate for an attachment order granted without notice to another person to expire automatically after 30 days, the order may specify a later expiry date or specify that it remains in effect until it terminates in accordance with

section 30.

(4) The court, on application by the claimant, who shall give notice to the defendant, may direct that an attachment order that was granted without notice to another person remain in effect until the order terminates under

section 30 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 application without notice to another person, 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),

(

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 of the application justify the continued existence of the attachment order; and

(

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 application without notice to another person for the attachment order.

1996 cJ-1.1 s29

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Termination of attachment order

(1)Except as otherwise ordered by the court, an attachment order terminates

(

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

(b)

60 days after the day of the entry of a judgment in favour of the claimant,

whichever occurs first.

(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.

1996 cJ-1.1 s30

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Provision of alternative security

Where property is attached under an attachment order,

(

a) the defendant;

(

b) a 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 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.

1996 cJ-1.1 s31

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Sale

, etc. of attached property

(1)An application may be made to the court to authorize the sale or other disposition of property that is subject to an attachment order without the consent of the owner of the property and the court may authorize that sale or disposition if, in the opinion of the court,

(

a) the property will

(

i) depreciate substantially in value, or

(ii)

be unduly expensive to keep under attachment; or

(

b) it is necessary or prudent to sell or dispose of the property for another reason not referred to in paragraph (a).

(2) Where the court authorizes the sale or disposition of property under subsection (1), the sheriff shall sell or dispose of that property in a manner consistent with enforcement proceedings under this Act.

1996 cJ-1.1 s32

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Registration of attachment order and disclosure

(1)Where an attachment order is in force, a claimant may register a notice of that attachment in the registry which shall be effective until the attachment order terminates under

section 30, or one year after registration, whichever comes first.

(2) A notice of attachment may be renewed by registration before the expiration of the current one year registration period and that renewed notice of attachment shall be effective for one year after the time when the original notice of attachment would have otherwise expired.

(3) Sections 41 to 43 and 45 shall apply to a registration of a notice of attachment with the necessary changes, as if the notice of attachment were a notice of judgment.

(4) The court may, at any time after the granting of an attachment order and before the entry of final judgment, order a person to disclose information the person possesses regarding property that a plaintiff seeks to attach under the order.

1996 cJ-1.1 s33

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Priorities

(1)Priority between a notice of attachment and the interest of a third person in property to which the attachment order applies shall be determined in accordance with

Part III

as if the notice of attachment were a notice of judgment.

(2) Notwithstanding subsection (1), 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, before a notice of attachment ceases to be in force, a notice of judgment has been registered in respect of the same proceedings in which the attachment order was issued, that notice of judgment has the same priority as the notice of attachment.

1996 cJ-1.1 s34

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Enforcement proceedings, etc.

(1)Enforcement proceedings may be commenced or continued against property that is subject to an attachment order and money realized through those proceedings may be distributed under

Part XI without regard to the attaching claimant's claim.

(2) Notwithstanding subsection (1), the court may, where the court considers that it would be just and equitable to do so, order

(

a) that enforcement proceedings not 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 enforcement proceedings against property that is the subject of an attachment order not be distributed until the attachment order terminates; and

(

c) that the attachment creditor have the status of an instructing creditor for the purpose of the distribution of the proceeds.

1996 cJ-1.1 s35

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Inconsistent actions

(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 a claimant or 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 only because the person has done something that was necessary to meet a legal duty that

(

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

(

b) was owed to someone other than the defendant.

(3) This

section shall not be construed so that it restricts the power of the court to punish for contempt.

1996 cJ-1.1 s36

PART III

NOTICE OF JUDGMENT

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Definitions

In this Part

(a)

"after-acquired property" means property acquired by a debtor after the relevant notice of judgment is registered in the registry;

(b)

"buyer of goods" includes a person who obtains a vested right in goods under a contract to which that person is a party, as a consequence of the goods becoming a fixture or accession to property in which he or she has an interest;

(c)

"consumer goods" means goods that are used or acquired for use primarily for personal, family or household purposes;

(d)

"equipment" means goods that are held by a debtor other than as inventory or consumer goods;

(e)

"intangible" means personal property other than goods, a document of title, chattel paper, a security certificate, an instrument, and money;

(f)

"inventory" means goods

(

i) that are held by a person for sale or lease, or that have been leased by that person,

(ii)

that are to be furnished by a person or have been furnished by that person under a contract of service,

(iii)

that are raw materials or work in progress, or

(iv)

that are materials used or consumed in a business;

(g)

"land" means an interest in land and includes

(

i) a lease, and

(i.1)

except where the context otherwise requires, a fixture, and

(ii)

an interest in a right to payment that arises in connection with an interest in or lease of land other than an interest in a right to payment evidenced by an instrument or a security certificate,

but does not include growing crops;

(h)

"money" means a medium of exchange authorized by the Parliament of Canada or authorized or adopted by a foreign government as part of its currency;

(i)

"new value" means value other than a previous debt or liability;

(j)

"ordinary course of business of the seller" includes the supply of goods in the ordinary course of business as part of a contract for services and materials;

(k)

"personal property" means goods, a document of title, chattel paper, a security certificate, an instrument, money or an intangible, but does not include land;

(l)

"purchase" means taking by sale, lease, discount, assignment, negotiation, mortgage, pledge, lien, issue, reissue, gift or another consensual transaction creating an interest in property;

(m)

"purchase money security interest" means a security interest in property to the extent that it secures all or a part of the purchase price of the property;

(n)

"purchaser" means a person who takes by purchase;

(o)

"seller" includes a person who supplies goods that become a fixture or accession; and

(p)

"value" means consideration sufficient to support a simple contract, and includes a previous debt or liability.

1996 cJ-1.1 s37 ; 1998 cP-7.1 s81

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Registration required

(1)A person who has a money judgment that is in force may register a notice of that judgment in the registry in accordance with this Act.

(2) The sheriff shall accept as proof of a money judgment a money judgment certified by an officer of the court from which that judgment originated, a certified true copy of that judgment or a facsimile copy of either.

(3) Where a court has awarded a money judgment that includes interest calculated in accordance with the Judgment Interest Act

the information contained in that money judgment shall not be registered in a notice of judgment under this

section until the ordered interest amount has been calculated and stated on that money judgment and is approved by the court or, where the interest amount is agreed upon between the creditor and the debtor, by an officer of the court.

(4) Except as otherwise provided in this Act a creditor who does not have a notice of judgment shall not

(

a) bind the property of a debtor;

(

b) initiate an enforcement proceeding; or

(

c) share in a distribution in accordance with

Part XI.

(5) A reference to a notice of judgment shall be considered to be a reference to the data entered in the registry to effect a registration of a notice of judgment under this Act.

1996 cJ-1.1 s38 ; 1997 c3 s3

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Effective notice of judgment and enforcement by contempt

(1)Except as otherwise provided, a notice of judgment is effective only while the money judgment upon which it is based is in force.

(2) [Rep. by 1998 c22 s9]

1996 cJ-1.1 s39 ; 1998 c22 s9

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Money judgment not in force

(1)A money judgment is not in force

(

a) if it has been satisfied;

(

b) if the period for the enforcement of the judgment has expired in accordance with the Limitations Act,

or another Act providing for a limitation period; or

(

c) as provided in the money judgment or in an order of a court having jurisdiction with respect to that money judgment.

(2) For the purpose of determining whether a money judgment is in force, a person searching the registry shall rely on the information contained in the notice of judgment.

1998 c22 s10

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Registration

(1)The registration of a notice of judgment is effective from the time that a registration number, date and time is assigned to that registration in the registry.

(1.1) A notice of judgment or a notice of an attachment order may be registered electronically by a user of the registry approved for the purpose by the sheriff using a computer system and a computer network, electronic forms and documents and computer format approved for the purpose by the sheriff.

(1.2) Where a notice of judgment or a notice of an attachment order is registered electronically on the registry by a person referred to in subsection (1.1), the sheriff shall, immediately following electronic registration, send a notice of verification of the registration containing the information referred to in subsection (1), electronically to the user of the registry referred to in subsection (1.1).

(2) The effectiveness of the registration of a notice of judgment is not affected by a defect, irregularity, omission or error in the notice of judgment unless the defect, irregularity, omission or error is seriously misleading.

(3) A registration of a notice of judgment is ineffective if there is a seriously misleading defect, irregularity, omission or error in the name of the debtor.

(4) In order to establish that a defect, irregularity, omission or error is seriously misleading, it is not necessary to prove that anyone was actually misled by it.

(5) A statement verifying the registration of a notice of judgment shall be served on the debtor and the creditor within 30 days after it is registered.

(6) A person who registers a notice of judgment knowing that the judgment is not in force or registers a notice of judgment that contains information that the person knows is incorrect is guilty of an offence.

1996 cJ-1.1 s41 ; 2001 c24 s1

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Amendment, transfer and data removal

(1)A notice of judgment may be amended in accordance with this Act and that amendment is effective from the time that it is registered.

(1.1) A statement verifying the registration of an amendment shall be served on the debtor and the creditor within 30 days after it is registered.

(2) If a creditor transfers a money judgment, the notice of judgment may be amended to disclose that transfer.

(3) If the rights of a creditor have been subordinated by the creditor to the interest of another person the notice of judgment may be amended to disclose the subordination.

(4) Data in a registration of a notice of judgment may be removed from the records of the registry in accordance with the regulations.

1996 cJ-1.1 s42 ; 1998 c22 s11

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Registration not constructive notice

Registration of a notice of judgment in the registry does not constitute notice or knowledge to a person of the existence of the notice of judgment.

1996 cJ-1.1 s43

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Error or omission

Where enforcement proceedings have been carried out and there is an error or omission with respect to the registration of the notice of judgment in the registry, the court may, on application by an interested person, make an order validating enforcement proceedings that may have taken place, subject to interests that may have arisen in the period of time between the registration of the notice of judgment in the registry and the correction of the error or omission.

1996 cJ-1.1 s44 ; 1997 c3 s4

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Discharge and amendment

(1)A creditor shall

(

a) discharge a notice of judgment where the money judgment is no longer in force other than by virtue of paragraph 40(1)(b);

(b)

(

c) amend a notice of judgment to release property that has been released or that is declared exempt under

Part X; or

(

d) amend an error in a notice of judgment.

(2) Where a creditor fails to comply with subsection (1) within 30 days of the event requiring discharge or amendment of the notice of judgment, the debtor or another person with an interest in the property of the debtor may give a written demand to the creditor to discharge or amend the notice of judgment.

(3) If a creditor fails to comply with a demand under subsection (2) within 15 days after it is given, or fails to give to the person giving the demand an order of the court confirming that the notice of judgment need not be discharged or amended, the person giving the demand may register the discharge or amendment.

(4) The creditor or debtor, or another person with an interest in the property, may apply to the court and the court may order that a notice of judgment in the registry be maintained on a condition and for a period of time or may order that the notice of judgment be amended or discharged.

(4.1) Where the sheriff has reasonable grounds to believe that a money judgment has been satisfied, or for another reason the sheriff is of the opinion that no valid basis exists for maintaining the notice, the sheriff may discharge a notice of that judgment.

(5) A fee or expense shall not be charged by a creditor for compliance with a demand under subsection (2).

1996 cJ-1.1 s46 ; 1998 c22 s12 ; 1998 c22 s12 ; 2001 c24 s2

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Property bound

(1)A money judgment shall not bind or otherwise affect the debtor's property until registration of a notice of judgment in the registry.

(2) On being registered in the registry, a notice of judgment binds all of the debtor's property.

(3) Subsection (2) applies to after-acquired property of the debtor from the time that the debtor acquires that property.

1996 cJ-1.1 s46

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Knowledge of notice of judgment

For the purpose of this Part, a person is considered to have knowledge of a notice of judgment if that person has knowledge that the relevant property is subject to a notice of judgment, enforcement proceedings or has been seized.

1996 cJ-1.1 s47

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Subordinate interests

(1)In this Act, a reference to an interest in property being subordinate to a notice of judgment means subordinate to the rights or interest of the creditor who has registered the notice of judgment.

(2) An interest in property that is subordinate to a notice of judgment is also subordinate to the rights or interest of a representative of creditors, including a trustee in bankruptcy, for the purpose of enforcing rights of the creditor who registered the notice of judgment.

(3) Where an interest in property is subordinate to a notice of judgment,

(

a) the property is subject to enforcement 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 enforcement proceedings acquires the property free of the subordinate interest.

(4) An interest in property that is subordinate to a notice of judgment is subordinate to the extent of the amount outstanding on the enforcement debt at the time the enforcement proceedings are taken against the property.

1996 cJ-1.1 s48

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Subsequent interests

Except as otherwise provided in this or another Act, an interest acquired in property after the property is bound by a notice of judgment is subordinate to the notice of judgment.

1996 cJ-1.1 s49

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Notices of judgment and security interests

(1)Except as otherwise provided in this Act, a security interest in personal property is subordinate to a notice of judgment that binds the property regardless of whether the security interest attached before or after the personal property became bound by registration of the notice of judgment in the registry.

(2) Subject to subsections 36(5) and (6) of the Personal Property Security Act,

a security interest in personal property has priority over a notice of judgment that binds the property if at the time the notice of judgment is registered in the registry

(

a) the security interest is perfected or registered in the personal property registry; or

(

b) the secured party or a person acting on behalf of the secured party has possession of the personal property under

section 25 of the Personal Property Security Act.

(3) A purchase money security interest in personal property has priority over a notice of judgment 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

1998 cP-7.1 s81

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Priority status not affected

Where

(

a) the registration of the notice of judgment has been discharged in error or without authorization; and

(

b) the notice of judgment is re-registered not later than 30 days after the lapse or discharge,

the discharge of the notice of judgment does not affect the priority status of the notice of judgment in relation to a competing perfected security interest that immediately prior to the discharge of the notice of judgment had a subordinate priority position, except to the extent that the competing security interest secures advances made or contracted for after the discharge and prior to the re-registration of the notice of judgment.

1998 cP-7.1 s81

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Disposition of goods

(1)A buyer or lessee of goods sold or leased in the ordinary course of business of the seller or lessor takes free of a notice of judgment that binds the goods.

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

(

a) gives value for the interest acquired; and

(

b) buys or leases the goods without knowledge that the goods are bound by the notice of judgment, and

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

(3) Where serial number goods that are bound by a notice of judgment are not described by serial number in the registration of that notice of judgment in the 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 notice of judgment; 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 notice of judgment acquires the interest free of the notice of judgment

(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.

1996 cJ-1.1 s52 ; 1997 c3 s5 ; 1998 cP-7.1 s81

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Fixtures and growing crops

(1)Where goods are bound by a notice of judgment and while being bound by the notice of judgment the goods become a fixture, those goods shall continue to be bound by that notice of judgment.

(2) A notice of judgment that binds goods after they become a fixture is subordinate to the interest of a person who has an interest in the land at the time the fixture is bound and who

(

a) has not disclaimed an interest in the fixture;

(

b) has not entered into an agreement under which a person is entitled to remove the fixture; or

(

c) is not otherwise precluded from preventing the debtor from removing the fixture.

(3) Any question of priorities between a notice of judgment and a security interest in a fixture or growing crop shall be determined in accordance with subsections 37(9) and 38(7) of the Personal Property Security Act.

1996 cJ-1.1 s53 ; 1998 cP-7.1 s81

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Negotiable instruments

(1)A holder of money has priority over a notice of judgment that binds the money if that holder

(

a) acquired the money without knowledge of the notice of judgment; or

(

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

(2) A creditor without a notice of judgment who receives an instrument drawn or made by a debtor and delivered in payment of a debt owing to that creditor by that debtor has priority over a notice of judgment that binds the instrument whether or not the creditor has knowledge of the notice of judgment at the time of delivery.

(3) A purchaser of an instrument or security certificate has priority over a notice of judgment that binds the instrument or security certificate if that purchaser

(

a) gave value;

(

b) acquired it without knowledge of the notice of judgment; and

(

c) took possession of it.

(4) [Rep. by 2007 cS-13.01 s109]

(5) A holder of a negotiable document of title has priority over a notice of judgment that binds the document of title if that holder

(

a) gave value; and

(

b) acquired the document of title without knowledge of the notice of judgment.

(6) A purchaser of chattel paper has priority over a notice of judgment 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 notice of judgment.

1996 cJ-1.1 s54 ; 2007 cS-13.01 s109

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Protected purchaser of security

A person who is a protected purchaser of a security within the meaning of the Securities Transfer Act

has priority over a notice of judgment that binds the security where that person did not have knowledge of the notice of judgment at the time the person obtained control of the security.

2007 cS-13.01 s109

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Other rights

A transferee of an interest or a right, other than an interest in or a right to land or personal property, bound by a notice of judgment shall have priority over a notice of judgment that binds the right if the transferee gave value and did not have knowledge of the notice of judgment at the time of the transfer.

1998 cP-7.1 s81

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Priority of liens

Where a person in the ordinary course of business furnishes materials or services with respect to goods that are bound by a notice of judgment, a lien that the person has with respect to the materials or services has priority over the notice of judgment unless the lien is given under an enactment that provides that the lien does not have that priority.

1996 cJ-1.1 s57

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Effect of seizure

Subject to

section 36(6) of the Personal Property Security Act,

the position of a person who acquires an interest in personal property that is bound by a notice of judgment is determined by this Part regardless of whether the personal property has been seized.

1998 cP-7.1 s81

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Interests in land

(1)Where

(

a) a person acquires an interest in land before the registration of a notice of judgment; and

(

b) based on the records in the registry of deeds, the notice of judgment would otherwise bind the interest,

the interest is subordinate to the notice of judgment unless the person proves that

(

c) evidence of the interest was registered in the registry of deeds before the notice of judgment was registered in the registry;

(

d) evidence of the interest was registered in the registry of deeds within 90 days of

(

i) the creation of the interest, or

(ii)

in the case of an interest created by an instrument, the execution of the instrument;

(

e) in the case of an interest other than a security interest, the interest was acquired in good faith; or

(

f) the creditor had knowledge of the interest at the time the claim on which the money judgment was based arose.

(2) Subsection (1) applies only to interests in land created after the commencement of this Act.

(3) A purchase money security interest in land bound by a notice of judgment has priority over the notice of judgment if evidence of that interest was registered in accordance with paragraph (1)(d).

1996 cJ-1.1 s59

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Exceptions to binding

(1)A person who acquires an interest in land takes the interest

(

a) free of; or

(

b) in the case of a security interest, in priority to

a notice of judgment that binds the land if an instrument evidencing that interest is registered in the registry of deeds within 10 days of the registration of the notice of judgment in the registry.

(2) A person who acquires an interest in land takes free of, or in the case of a security interest, in priority to, a notice of judgment that binds the land, if

(

a) the person gives value for the interest acquired; and

(

b) the person acquires the land without knowledge that the land was bound by the notice of judgment.

(3) For the purpose of subsection (2), a person shall be considered to have knowledge of a notice of judgment if

(

a) the notice of judgment would be disclosed in a search of the registry using the name in which the interest was held by the debtor in the registry of deeds; and

(

b) it would be reasonable to conclude that the notice of judgment was with respect to the debtor.

1997 c3 s6

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Interaction between notices of judgment

(1)An interest in property is not subordinate to a notice of judgment by reason only of the fact that the interest is subordinate to another notice of judgment.

(2) This

section shall not be construed so that it creates a priority between notices of judgment.

1996 cJ-1.1 s61

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Interest subject to sale

(1)Subject to subsection 48(3), sections 107 and 165, when property is sold as a result of enforcement proceedings,

(

a) the person who buys the property obtains only the interest of the debtor in the property; and

(

b) the sale of the property does not adversely affect the rights or interest of another person in the property.

(2) Notwithstanding subsection (1), a buyer at a sale conducted as a result of enforcement proceedings acquires the interest or rights that the debtor could have conveyed, respecting the property that is sold, to a purchaser in circumstances similar to those at the time of that sale.

1996 cJ-1.1 s62

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Tracing proceeds

(1)When money received as a result of enforcement proceedings with respect to property is distributed, a person who does not assert a claim with respect to that property before that money is distributed shall not trace or otherwise follow the money.

(2) Notwithstanding subsection (1), unless

(a)

subsections 48(3) and 107(1) apply to the interest in property;

(

b) the interest in property did not survive a sale as a result of enforcement proceeding as provided in

section 62; or

(

c) otherwise provided in

section 165,

a person may apply to the court for an order with respect to the money distributed.

1996 cJ-1.1 s63 ; 1997 c3 s7

PART IV

INFORMATION REGARDING

ENFORCEMENT

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Voluntary questionnaires

(1)A creditor may serve a questionnaire on the debtor to be completed and returned to the creditor for the purpose of determining the ability of the debtor

to satisfy the claims of the creditor.

(2) A debtor shall return the completed questionnaire to the creditor within 15 days of service.

(3) A creditor shall provide the sheriff with a copy of a questionnaire completed by a debtor at the time he or she issues first instructions to the sheriff.

1998 c22 s13

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Sheriff questionnaire

(1)A creditor may instruct the sheriff to serve a questionnaire on a person who may be required to submit to an examination under

section 66 to be completed and returned to the sheriff for the purpose of determining the ability of the debtor to satisfy the claim of the creditor.

(2) A questionnaire under this Part shall be in the required form.

(3) A person served with a questionnaire under subsection (1) shall return the completed questionnaire to the sheriff within 15 days of service.

1998 c22 s14

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Examination

(1)A creditor may set a place and time for an examination and may examine a debtor or another person for the purpose of determining the ability of the debtor to satisfy the claims of the creditor.

(2) A creditor shall, in the required form, serve upon the debtor or other person a notification of the place and time of an examination.

(3) A debtor or another person who has been served with a notification of an examination under subsection (2) shall attend that examination at the required time and place.

(4) Notwithstanding subsection (3), the debtor or other person may, in accordance with the regulations and by agreement with the creditor, arrange for a change of place and time for an examination.

(5) The minister may make regulations respecting examinations under subsection (1), including

(

a) the persons who may be examined;

(

b) the time and place of an examination;

(

c) the person before whom the examination may be conducted;

(

d) the procedure with respect to the conduct of the examination; and

(

e) the consequences of a failure to attend an examination or to answer proper questions.

1996 cJ-1.1 s66 ; 1998 c22 s15

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Sheriff to be given notice

(1)A creditor shall, in the required form, notify the sheriff of the time set for an examination under this Part.

(2) A creditor who conducts an examination under this Part and obtains a transcript of the examination shall deliver the transcript to the sheriff.

(3) Where a debtor or other person is examined under this Part, the creditor shall elicit information sufficient to complete a questionnaire appropriate for the circumstances.

(4) The person before whom an examination referred to in subsection (3) was conducted shall

(

a) complete a questionnaire based on the information disclosed at the examination;

(

b) certify under oath or affirmation that the completed questionnaire accurately reflects the information disclosed; and

(

c) deliver the certified questionnaire to the sheriff, the creditor, the debtor and the person examined within 30 days of the examination.

(5) The sheriff shall keep records of the receipt of questionnaires, notices of appointments or orders for examination or transcripts that are required under this Part.

1996 cJ-1.1 s67

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Identification of debtor

A person shall provide information for the purpose of determining or verifying the identity and location of a debtor.

1996 cJ-1.1 s68

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Disclosure

The court may, at any time after the issue of a judgment, order a debtor or another person to disclose to a person appointed by the court, information the debtor or other person possesses regarding property in which the debtor has an interest, or which the debtor or another person has disposed of since contracting the debt, or incurring the liability in respect of which the judgment was obtained.

1996 cJ-1.1 s69

PART V

SEIZURE OF PERSONAL PROPERTY

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When seizure available

(1)For the purpose of enforcement proceedings, all exigible personal property of a debtor is liable to seizure.

(2) Except as otherwise provided in this Act, eligible personal property of a debtor that is to be seized under enforcement proceedings shall be seized and dealt with in accordance with this Part.

(3) Notwithstanding subsections (1) and (2), an obligation is not subject to seizure and shall not be dealt with except in accordance with

Part VI.

(4) Notwithstanding subsection (2), where this or another Act sets out a different seizure process in respect of property or a class of property, that property is seized when it is seized under that seizure process.

(5) In this Part, unless the context indicates otherwise, a reference to a seizure means a seizure of personal property.

1996 cJ-1.1 s70 ; 1998 c22 s16

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Instructions to seize

A creditor may instruct the sheriff to seize personal property and to deal with seized property in accordance with this Act.

1996 cJ-1.1 s71

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Instruction requirements

(1)The sheriff shall not attempt to seize personal property unless a creditor has provided

(

a) instructions in writing;

(

b) a current statement of status;

(

c) the information respecting the nature and location of the property to be seized that the sheriff reasonably requires;

(

d) a statement that a copy of the instructions was delivered to all other creditors with related notices of judgment; and

(

e) other documents or information reasonably required by the sheriff.

(2) The sheriff may terminate enforcement proceedings where the instructing creditor has not provided the information required under subsection (1) within 15 days of a request from the sheriff for that information.

1996 cJ-1.1 s72

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Scope of seizure

(1)The sheriff may attempt to seize enough of the debtor's exigible personal property to satisfy an amount equal to the sum of

(

a) the amount of all enforcement debts on all related notices of judgment; and

(

b) the enforcement fees and expenses,

minus the sum of

(

c) the realizable value of property remaining under seizure and available to satisfy the claims of creditors with related notices of judgment; and

(

d) amounts realized from enforcement proceedings taken against property of the debtor which have not been distributed.

(2) The sheriff may seize personal property in which there are reasonable grounds for believing the debtor has an exigible interest, but shall not seize property that appears to be exempt.

(3) Where, at the time seizure is effected, it is not practicable to

(

a) distinguish exempt from exigible property; or

(

b) limit the value of the property seized to the amount directed to be seized in accordance with subsection (1),

the sheriff may seize all the property in question until

(

c) the part that is exempt; or

(

d) the part that is in excess of what is required to satisfy the amount directed to be seized under subsection (1),

can be identified and separated from the exigible property at which time the sheriff shall release the exempt or excess property from seizure.

1996 cJ-1.1 s73

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Demand on third party

(1)Where there are reasonable grounds for believing that exigible personal property of a debtor is in the possession or control of a third party, the sheriff may, and, if instructed by the instructing creditor, shall, serve a demand on the third party requiring the third party to deliver the property to the sheriff or make it available for seizure within 15 days from the day that the demand is served on the third party.

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

section shall immediately

(

a) deliver the property to the sheriff;

(

b) advise the sheriff 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

(

c) where the third party has a right against the debtor to retain the property or does not have possession or control of the property, advise the sheriff that the third party is not required to comply with paragraph (

a) or (

b) because that third party

(

i) has a right against the debtor to retain the property, or

(ii)

does not have possession or control of the property.

(3) Where a third party complies with a demand made under this section, the sheriff shall compensate the third party for expenses reasonably incurred by the third party in complying with that demand.

(4) A third party who, without reasonable excuse fails to comply with a demand made under this section, shall compensate the creditors for a pecuniary loss suffered by them as a result of the non-compliance.

(5) Where the sheriff takes possession of property from a third party in respect of whom a demand was made under this section, the third party is discharged of responsibility that the third party may have had to hold the property for, or return it to, the debtor.

(6) This

section does not apply to property held by a securities intermediary, as defined in the Securities Transfer Act

, if the debtor has a security entitlement, as defined in the Securities Transfer Act

, against the securities intermediary with respect to that property.

(7) A demand served on a person under this

section shall be accompanied by a notice of claim, a notice of third party interest and instructions in the required form.

1996 cJ-1.1 s74 ; 2007 cS-13.01 s109

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Effecting seizure

(1)Personal property that is described in a notice of seizure is seized when the sheriff

(

a) while at the place at which the property is located, serves the necessary enforcement documents on

(

i) the debtor or an adult member of the 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) in the manner prescribed by regulation, attaches to the property documents indicating that the property is seized or posts the notice of seizure in a conspicuous place at the location at which the property is located.

(2) Where the sheriff has seized personal property other than in accordance with subparagraph (1)(a)(i), the sheriff shall serve the enforcement documents on the debtor as soon after seizing that property as is practicable.

(3) Where the sheriff is unable to serve the enforcement documents as required by subsection (2), the sheriff shall begin the proceedings provided for under

section 80.

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

(

a) enforcement documents or identifying documents that are attached to seized property or posted under paragraph (1)(b); or

(

b) property that is under seizure.

1996 cJ-1.1 s75 ; 1998 c22 s17

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Entry onto premises

For the purpose of carrying out enforcement proceedings

(

a) the sheriff may

(

i) enter a location or premises of a debtor for the purpose of carrying out the seizure and removing property of the debtor, and

(ii)

where the sheriff 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, enter that location or those premises for the purpose of carrying out the seizure and removing personal property of the debtor;

(

b) the sheriff may use reasonable force for the purpose of gaining access to a location or premises of a debtor, other than a dwelling place;

(

c) notwithstanding paragraphs (

a) and (b), in the case of a dwelling place of a debtor or location or premises, including a dwelling place of a person other than a debtor, the sheriff shall not,

(

i) where entry to the dwelling place, location or premises is refused, enter the dwelling place, location or premises, or

(ii)

use force for the purpose of gaining access to the dwelling place, location or premises,

unless authorized to do so by an order of the court;

(

d) where the sheriff has gained lawful entry to a location or premises, he or she may gain entry by any means that are appropriate in the circumstances to

(

i) an enclosure or container, or

(ii)

an interior room of the premises; and

(

e) where the sheriff has used force to gain entry to a location or premises, he or she shall make that location or premises reasonably secure before leaving the location or premises.

1996 cJ-1.1 s76

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Seizure valid notwithstanding irregularity

(1)A seizure is valid notwithstanding an irregularity in the procedure by which it was carried out.

(2) Notwithstanding subsection (1), the court may order that a seizure be discontinued where it 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.

1996 cJ-1.1 s77

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Custody of seized property

(1)The sheriff, at the time of seizure or after carrying out the seizure, may remove for safekeeping the personal property that has been seized.

(2) The sheriff may appoint the debtor or some other person as bailee of the personal property that has been seized if the debtor or other person signs an undertaking

(

a) to hold that property for the sheriff; and

(

b) to deliver up that property to the sheriff on demand by the sheriff.

(3) A debtor who has possession of or control over personal property that has been seized and has been served with the enforcement documents in respect of that property

(

a) holds that property as bailee for the sheriff; and

(

b) shall deliver that personal property to the sheriff

(

i) when required to do so by the sheriff, and

(ii)

at a location specified by the sheriff,

whether or not the debtor has signed an undertaking referred to in subsection (2).

(4) Where a person

(

a) has a duty to deliver to the sheriff personal property that has been seized; and

(

b) defaults in delivering the personal property to the sheriff within a reasonable time after being required to make that delivery,

that person

(

c) may be held liable for civil contempt by the court on application by the sheriff or a creditor; and

(

d) shall compensate the creditors with related notices of judgment for a pecuniary loss suffered by them as a result of the non-compliance.

1996 cJ-1.1 s78

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Report

(1)The sheriff shall, within a reasonable time after seizing or attempting to seize personal property, report that seizure or attempted seizure, in writing, to the instructing creditor.

(2) Where personal property has been seized, the sheriff's report shall include details of that seized property and a reasonable estimate of the value that would be realized from that seized property and available for distribution under

Part XI.

(3) The sheriff shall maintain a record of the information to be included in a report under subsection (2).

1996 cJ-1.1 s79

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Termination of seizure and notice of claim

(1)Where personal property is seized, it remains under seizure until

(

a) sold or otherwise disposed of under this Act; or

(

b) released from seizure by the sheriff.

(2) Where personal property has been seized and

(

a) the sheriff has been unable to serve the debtor as required by subsection 75(2); or

(

b) the personal property has been seized for not fewer than 60 days and, in the opinion of the sheriff, it is appropriate that the property be released from seizure,

the sheriff shall give notice of the proposed release to every creditor who, at the time that the notice is given, has a related notice of judgment of his or her intention to release the property from seizure.

(3) (4) Property shall not be released from seizure or returned to the debtor under subsection (2) until

(

a) the period for an application to the court has elapsed with no application being made; or

(

b) the application is dismissed.

1996 cJ-1.1 s80 ; 1998 c22 s18

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Sale

of property, etc.

For the purpose of selling seized personal property

(

a) the sheriff shall not sell that seized property until instructed to do so by the instructing creditor;

(

b) the property shall be sold as soon as is practicable after the instructions to sell are given;

(

c) notwithstanding paragraph (b), the property shall not be sold

(

i) until the period of time for the delivery to the sheriff of a notice of objection or notice of claim with respect to the property has expired, or

(ii)

where an effective notice of objection or an effective notice of claim is delivered to the sheriff, until the objection or claim is rejected, withdrawn, or the court authorizes the sale;

(

d) the sale may be delayed if in the opinion of the sheriff it is commercially reasonable to do so;

(

e) the property may without an order of the court be sold by a method that the sheriff considers to be commercially reasonable;

(

f) at least 15 days before the day on which the sale is to take place, notice shall be served upon the instructing creditor and all creditors with related notices of judgment and the debtor of the method of sale being used;

(

g) the property may be sold to a creditor by private sale if

(

i) not fewer than 15 days before the day of the sale, notice of the terms of the sale is served upon the debtor, and all of the other creditors having related notices of judgment at the time that the notice is given, and

(ii)

within the 15 day period the debtor or a creditor with a related notice of judgment has not notified the sheriff, in writing, that he or she objects to the sale;

(

h) if the sheriff is notified of an objection to a private sale in accordance with subparagraph (g)(ii), the sheriff shall not sell the property to the creditor by that proposed private sale unless permitted to do so by the court;

(

i) notwithstanding paragraphs (a), (

b) and (c), the property may be sold or disposed of in an expeditious manner

(

i) under order of the court,

(ii)

if the property is perishable, depreciating rapidly in value, dangerous, unsanitary or a hazard to health, upon giving every interested person as much notice as is practicable in the circumstances,

(iii)

if the property is unique or for a special purpose, the sheriff has received an offer to purchase the property at a reasonable price, it is not probable that another reasonable offer would be received provided, that interested persons have been given as much notice as is practicable in the circumstances, or

(iv)

if the property is an instrument or a security;

(

j) unless otherwise ordered by the court, the proceeds of that sale in accordance with paragraph (

i) shall not be distributed before they could have been, based on the earliest time at which the property could otherwise have been sold; and

(

k) where the property cannot be sold for a reasonable price, the property may be sold for the best obtainable price by or with approval of the sheriff

(

i) under order of the court, or

(ii)

if a reasonable price for the property would not exceed $1000.

1996 cJ-1.1 s81 ; 1998 c22 s19 ; 2007 cS-13.01 s109

PART VI

SPECIAL SEIZURE MECHANISMS

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Application of

Part

(1)Except where it would conflict with this Part,

Part V applies to seizure proceedings against or dealing with property governed by this Part.

(2) For the purpose of applying the provisions of

Part V a reference in this Part to the liquidation of property shall be considered to be a reference to a sale.

1996 cJ-1.1 s82

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Cash and instruments

For the purpose of seizing and dealing with cash and instruments

(

a) seized cash may not be distributed as enforcement proceeds until

(

i) the expiration of the time within which the debtor may serve a notice of objection in accordance with subsection 159(1), and

(ii)

where a notice of claim has been served on a third party under

section 163, the expiration of the period within which the person may deliver a notice of claim to the sheriff;

(

b) the seizure of an instrument makes the sheriff the irrevocable agent of the debtor for the purpose of liquidating the instrument;

(

c) the sheriff may

(

i) present the instrument for payment and receive payment on it,

(ii)

sue a person liable on the instrument in the name of the debtor,

(iii)

take proceedings or an action available to enforce a security for payment of the obligation evidenced by the instrument, and

(iv)

negotiate the instrument; and

(

d) the sheriff when endorsing an instrument on behalf of the debtor shall do so in a manner that shall exclude recourse against the debtor.

1996 cJ-1.1 s83

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Obligations

(1)For the purpose of seizing and dealing with a secured obligation, other than a security or an obligation evidenced by an instrument,

(

a) seizure of a secured obligation is effected by

(

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

(ii)

registering the notice of seizure in the registry appropriate for the property that is the security for the obligation, and

(iii)

serving the enforcement documents on the debtor;

(

b) if the debtor's security has not been registered in the appropriate registry when the secured obligation is seized, the sheriff may register the security in the registry appropriate for the property that is the security for the obligation;

(

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

(

d) after serving a notice on the person liable to pay the obligation under paragraph (

c) the sheriff, as an alternative to selling the secured obligation under

Part V, may collect the obligation through proceedings, including an action or enforcement of the security for the obligation that could otherwise have been taken by the debtor.

(2) For the purpose of seizing and dealing with an obligation, other than a secured obligation, a security or an obligation evidenced by an instrument,

(

a) where the sheriff considers it appropriate, he or she may seize an obligation for the purpose of sale;

(

b) seizure of an obligation under paragraph (

a) is effected by

(

i) identifying the obligation in the notice of seizure, and

(ii)

serving the enforcement documents on the debtor;

(

c) after seizing an obligation, the sheriff may serve notice of the seizure in the required form on the person liable to pay the obligation and after being served with the notice that person shall comply with the directions of the sheriff in the notice; and

(

d) upon effecting seizure, the sheriff shall proceed to sell the seized obligation under

Part V.

(3) Notwithstanding subsections (1) and (2), an obligation shall not be seized if a garnishee order is in effect with respect to the obligation or if a judgment has been obtained against the garnishee under

section 125.

(4) Where an obligation is seized under this Part, and the person liable to pay the obligation is notified of that seizure by the sheriff, a notice of third party interest in the required form shall accompany that notice.

1996 cJ-1.1 s84 ; 2007 cS-13.01 s109

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Products of nature

For the purpose of seizing and dealing with agricultural products, products of aquaculture and products of the sea, lakes and rivers,

(

a) the sheriff may seize growing crops, products of aquaculture and products of the sea, lakes and rivers;

(

b) growing crops and products of aquaculture referred to in paragraph (

a) shall not be sold until they have been harvested;

(

c) the sheriff has the same rights and duties as the debtor regarding the sale of seized agricultural products, products of aquaculture and products of the sea, lakes and rivers under applicable marketing legislation or a marketing plan;

(

d) unless the debtor undertakes to harvest a seized crop or product of aquaculture the sheriff may require the instructing creditor to provide security for the payment of harvesting expenses that may be incurred by the sheriff;

(

e) if the instructing creditor does not provide the requested security, the sheriff may release the crop or products of aquaculture from seizure;

(

f) expenses incurred by the sheriff in connection with

(

i) harvesting, or

(ii)

marketing

a seized crop, product of aquaculture or products of the sea, lakes and rivers are a first charge on and payable out of the proceeds of those crops or products in priority to a claim or right in the property including a security interest, lien, charge, encumbrance, mortgage or assignment, whether or not it arises under a statute; and

(

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

f) extends to a creditor who has paid the harvesting expenses incurred by the sheriff.

1996 cJ-1.1 s85

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Fixtures

(1)For the purpose of seizing and dealing with fixtures,

(

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

(

i) as set out in paragraph (b), or

(ii)

as authorized by the court;

(

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

Part V where

(

i) the absolute interest in the land to which the fixture is affixed is not beneficially owned by the debtor, and

(ii)

the interest in the fixture of a person who has an interest in the land is subordinate to the notice of judgment;

(

c) the sheriff shall serve on each person who is indicated by the instructing creditor as evidenced by documents registered in the registry of deeds as having an interest in the land on which the fixture is located a notice containing

(

i) a description of the seized fixture and of the land to which it is affixed,

(ii)

the amount for which notices of judgment is 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 paragraph (

f) is paid before a specified date that is not less than 15 days after the day that the notice is served;

(

d) a person who is entitled to receive a notice under paragraph (

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

(

e) if a fixture is seized and removed, a person, other than the 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 sheriff for 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; and

(

f) a person with an interest in the land to which a fixture is affixed may retain the fixture by paying to the sheriff the lesser of

(

i) the amount for which the person's interest in the fixture is subordinate to the notice of judgment, and

(ii)

the market value of the fixture.

(2) Where the appropriate payment is made to the sheriff under paragraph (1)(f), the fixture ceases to be bound by a notice of judgment against the debtor.

1996 cJ-1.1 s86

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Mobile homes

(1)For the purpose of acquiring possession of a seized mobile home,

(

a) where

(

i) the mobile home is occupied by the 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; and

(

b) the sheriff may obtain possession of the mobile home as authorized by the order referred to in paragraph (

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.

(2) For the purpose of this section, a mobile home means a vacation trailer, house trailer or portable dwelling unit manufactured wholly or partially for use as living accommodations for one or more persons and capable of being attached to, towed, propelled or transported by a motor vehicle or transported by any means on its chassis or on the chassis of a vehicle, but does not include a unit to which

Part VII

applies.

1996 cJ-1.1 s87

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Partners interest

(1)Enforcement proceedings shall not be taken with respect to the joint property of a partnership except on a judgment in the name of the partnership.

(2) Notwithstanding subsection (1), the court may make an order under

Part IX including the appointment of a receiver, with respect to the interest of the debtor in the partnership and upon the appointment of a receiver, the debtor shall be considered to have charged his or her interest in the partnership in favour of the receiver.

(3) A notice of judgment registered in the name of a debtor who is a partner shall not bind the joint interest of the partner in partnership property with respect to the dealing by the partnership with that property.

(4) Notwithstanding subsection (3), a notice of judgment binds the debtor's interest in the partnership.

(5) For the purpose of this section, partnership does not include a person carrying on business in a name or style other than that person's legal or proper name.

1996 cJ-1.1 s88

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Definitions

(1)In sections 90 to 98, "private company" means a corporation other than a distributing corporation within the meaning of the Corporations Act

(2) In sections 90 to 98, "appropriate person, "endorsement", "entitlement order", "instruction", "issuer", "securities intermediary" and "security entitlement" have the same meanings as in the Securities Transfer Act

2007 cS-13.01 s109

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Effecting seizure

(1)The sheriff may seize the interest of a debtor in a security or a security entitlement in accordance with sections 48 to 52 of the Securities Transfer Act

(2) Notwithstanding

section 49 of the Securities Transfer Act

the sheriff may seize the interest of a debtor in a security issued by a private company by serving a notice of seizure on the issuer at the issuers chief executive office.

(3) Where a seizure under this

section is by notice to an issuer or a securities intermediary, the seizure becomes effective when the issuer or the securities intermediary has had a reasonable opportunity to act on the seizure, having regard to the time and manner of the receipt of the notice.

(4) Where a debtors interest in a security or a security entitlement is seized in accordance with this

section and that interest is subject to a prior security interest,

(

a) the seizure does not affect the prior security interest; and

(

b) notwithstanding sections 91 to 97, the ability of the sheriff to deal with the security or security entitlement is limited to those rights and powers that the debtor would have had but for the seizure.

2007 cS-13.01 s109

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Powers of sheriff on seizure

(1)Where a debtors interest in a security or a security entitlement is seized in accordance with

section 90, the sheriff is the appropriate person for the purposes of dealing with or disposing of the seized property and, for the duration of the seizure, the debtor is not the appropriate person for the purposes of dealing with or disposing of the seized property.

(2) Upon seizure of a debtors interest in a security entitlement under

section 90, the sheriff may

(

a) do

an act or thing that would otherwise have to be done by the debtor; or

(

b) execute or endorse a document that would otherwise have to be executed or endorsed by the debtor.

(3) An endorsement, instruction or entitlement order made by the sheriff as the appropriate person under subsection (1) or by a receiver must be accompanied by a certificate of the sheriff or the receiver stating that the endorsement, instruction or entitlement order has been made by the sheriff or the receiver under this Act.

2007 cS-13.01 s109

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Duties of private company

A private company that has been served with a notice of seizure with respect to a security of which the debtor is the registered holder shall

(

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

(

b) pay to the sheriff a dividend or other payment in respect of the security that would otherwise be payable by the private company to the debtor; and

(

c) comply with a direction given by the sheriff with respect to the seized security where the private company would be required to comply with the direction if that direction was given by the debtor while the security was not under seizure.

2007 cS-13.01 s109

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Sheriff may deal with seized property

Where the sheriff has seized a debtors interest in a security entitlement by serving a notice of seizure on a securities intermediary whose securities intermediarys jurisdiction within the meaning of the Securities Transfer Act

is the province, the following applies:

(

a) the sheriff is entitled to receive information or documents relating to the security entitlement that the securities intermediary is required to give to the debtor;

(

b) the securities intermediary shall pay to the sheriff a distribution, dividend or other payment in respect of the security entitlement that would otherwise be payable by the securities intermediary to the debtor; and

(

c) the sheriff is entitled to give a direction to the securities intermediary with respect to the seized security entitlement that the debtor would otherwise be entitled to give.

2007 cS-13.01 s109

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Liability of private company or securities intermediary

A private company or securities intermediary who fails to comply with a duty under

section 92 or 93 is liable for a pecuniary loss suffered by the creditors as a result of the failure.

2007 cS-13.01 s109

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Liquidation of security

(1)The sheriff may liquidate a seized security by a means that the nature of the security permits.

(2) A restriction on the transfer of a security issued by a private company shall not apply to the transfer of the security by the sheriff under this Act.

(3) A restriction on the transfer of a security issued by a co-operative, other than a restriction under paragraph 99(1)(

g) of the Co-operatives Act

applies to the transfer of that security by the sheriff under this Act.

2007 cS-13.01 s109

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Liquidation procedure re private company shares

(1)This

section applies only to shares that are issued by a private company.

(2) Where a private company has been served with a notice of seizure with respect to certain shares, the private company shall inform a person of that service where he or she requests information from the private company regarding the debtors ownership of or ability to transfer those shares.

(3) On being instructed to sell seized shares, the sheriff shall serve a notice of the method of sale in the required form on

(

a) the private company;

(

b) a person who, to the knowledge of the sheriff, would have a preferential right to acquire the shares on a voluntary sale of the shares by the debtor; and

(

c) every registered shareholder of the private company, if there are not more than 15 registered shareholders.

(4) The notice of the method of sale under subsection (3) shall set out the procedure the sheriff intends to follow in selling the shares.

(5) After complying with subsection (3), the sheriff shall not take further steps to sell the shares until 15 days have elapsed from the day that the notice was served under that subsection.

(6) The sheriff shall, in selling shares, use a method of sale that

(

a) follows as closely as possible a procedure that the debtor would be required to follow in order to sell the shares; and

(

b) provides to the private company and the existing shareholders of the private company a reasonable opportunity to buy or redeem the shares before they are offered for sale to another person.

(7) The sheriff is not required to comply with subsection (6) to the extent that the method of sale referred to in that subsection would prevent the shares from being sold at all or prevent them from being sold within a reasonable time or at a reasonable price.

(8) A person who would otherwise be entitled to acquire or redeem the shares for a predetermined price or at price fixed by reference to a predetermined formula is entitled to buy or redeem the shares from the sheriff for that price unless the court determines that a sale at that price would unfairly prejudice the debtor or the creditor.

(9) Before the shares are sold by the sheriff, a person referred to in subsection (3) may pay to the sheriff an amount sufficient to discharge all related notices of judgment and outstanding sheriffs fees or charges and the taxable fees and disbursements of the instructing creditor, and on paying that amount to the sheriff that person has a lien on the shares for the amount paid to the sheriff, plus interest.

(10) Interest under subsection (9) shall be calculated in the same manner as for interest under the Judgment Interest Act

(11) The sheriff or an interested person may apply to the court for an order that it considers appropriate with respect to the method of liquidating seized shares and, notwithstanding subsection (6), including an order

(

a) respecting the method of sale, a term of a proposed sale or a proposed method of realising the value of the shares other than through sale;

(

b) suspending sale proceedings; or

(

c) directing that the private company that issued the shares be liquidated and its proceeds disposed of according to law.

(12) Where the sheriff has sent a notice of an intended sale to the persons mentioned in subsection (3) and an application is not made under subsection (11) before the shares are sold, the method of sale set out in the notice of intended sale shall be considered to have met the requirements of subsection (6).

2007 cS-13.01 s109

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Missing security certificate

The court on application by the sheriff may require the private company to acknowledge a transfer or other disposition of the security without presentation of the security certificate where

(

a) liquidation of the debtors interest in a security issued by the private company would ordinarily require presentation of a security certificate to the private company or its transfer agent;

(

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

(

c) the instructing creditor has made satisfactory provision for identification of the private company against a liability that the private company may incur in respect of the security certificate.

2007 cS-13.01 s109

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Effect of transfer

(1)In addition to an agreement to which a transferee is considered under

section 245 of the Corporations Act

to be a party, a transferee of a security from the sheriff shall be considered to be a party to a shareholders agreement with respect to

(

a) the management of the affairs of the private company; or

(

b) the exercise of voting rights attached to the seized shares,

to which the 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 debtor from transferring the security except to a person who agrees to be a party to that shareholders agreement.

(2) Notwithstanding subsection (1) and

section 245 of the Corporations Act

, the court may grant a declaration that the transferee is not bound by a term or provision of an agreement, bylaw or

article that discriminates against the transferee because of the transferee acquiring the securities through notice of judgment proceedings.

2007 cS-13.01 s109

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Rep. by 2007 cS-13.01 s109

[Rep. by 2007 cS-13.01 s109]

2007 cS-13.01 s109

PART

VII

LAND

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Application of

Part

In this Part, land does not include an interest in land that secures an obligation or an obligation that is secured by an interest in land.

1996 cJ-1.1 s100

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Instructions

(1)A creditor may instruct the sheriff to sell the debtor's land.

(2) The instruction to sell the debtor's land under subsection (1) shall be in writing and be accompanied by

(

a) a current statement of status;

(

b) a statement proposing the method of sale;

(

c) information regarding the nature and location of the property that the sheriff reasonably requires;

(

d) a statement that a copy of the instructions and suggested method