Statutes of Newfoundland 1991 Chapter 39

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Statutes of Newfoundland 1991

CHAPTER 39

AN ACT RESPECTING THE OFFICE OF THE HIGH SHERIFF OF NEWFOUNDLAND
(Assented to December 11, 1991)

Analysis

1. Short title

2. Definitions

3. High Sheriff

4. Sub-sheriffs and bailiffs

5. Deputy sheriffs

6. Officers

7. Oaths

8. Functions and duties

9. Prohibition against purchase

10. Records to be kept

11. Audit

12. Information release

13. Execution

14. Executions to be directed to sheriff

15. Payment of disbursements

16. Returns

17. Misconduct

18. Fees

19. Finance

20. Regulations

21. Saving

22. Non-application of 1990 c.46 s.4

23. Present offices

24. 1986 c.42 Amdt.

25. 1975-76 No.73 Rep.

26. Commencement

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

Short title

1. This Act may be cited as the Sheriff's Act, 1991.

Definitions

2. In this Act

(a) "court" means the Supreme Court and the Provincial Court of Newfoundland;

(b) "execution order", except where the context otherwise indicates, means an attachment, recovery, enforcement, contempt and execution order, a writ of attachment and other orders of execution;

(d) "sheriff" means the High Sheriff of Newfoundland appointed under section 3.

High Sheriff

3. The Lieutenant-Governor in Council shall appoint a person to be known as the High Sheriff of Newfoundland who shall hold office at the pleasure of the Crown and who is charged with the responsibility of ensuring that the powers and duties of that office are properly carried out.

Sub-sheriffs and bailiffs

4. (1) The Lieutenant-Governor in Council may appoint upon those terms and conditions which the Lieutenant-Governor in Council may prescribe

(a) a sub-sheriff to assist the sheriff; and

(b) additional sub-sheriffs for areas of the province which are designated in their appointments to assist in carrying out the duties of the sheriff within those areas.

(2) There may be appointed, in the manner authorized by law, bailiffs and other clerks and employees who are necessary to assist the sheriff in carrying out his or her powers and duties.

(3) Nothing in this Act shall prevent bailiffs appointed under this Act from performing the duties and exercising the powers traditionally carried on by bailiffs prior to the coming into force of this Act.

Deputy sheriffs

5. (1) The sheriff may appoint on a part time basis deputy sheriffs to exercise and discharge, under the control, direction and responsibility of the sheriff, those powers and duties of the sheriff which are conferred upon them by the sheriff.

(2) Deputy sheriffs are not civil servants within the meaning of The Civil Service Act, notwithstanding that all or part of their remuneration may be provided from funds voted by the Legislature.

(3) The sheriff shall maintain a list of all deputy sheriffs appointed under this section showing the location in which each deputy sheriff resides.

(4) The list maintained under subsection (3) shall be open to public inspection during normal office hours at no charge.

Officers

6. (1) Sub-sheriffs, bailiffs and deputy sheriffs appointed under sections 4 and 5 shall perform their duties under the control and direction of the sheriff.

(2) There may be appointed, in the manner provided by law, other officers, secretaries and employees necessary to carry out duties in the offices of the sheriff and sub-sheriffs.

(3) The sheriff, sub-sheriffs, bailiffs, deputy sheriffs and persons appointed under subsection (2) shall be officers of all courts in the province.

(4) No person, corporation, partnership or association of persons except a sub-sheriff, deputy sheriff or bailiff appointed under this Act shall

(a) use the title "sub-sheriff", "deputy sheriff" or "bailiff"; or

(b) use words or a name, title, designation or abbreviation or act in a manner that expressly or otherwise might lead to the belief that that person, corporation, partnership or association is appointed or carrying out duties under this Act.

Oaths

7. The sheriff and every sub-sheriff, bailiff and deputy sheriff shall, before performing the duties of the office of the sheriff, take and subscribe before a judge of the Trial Division or a judge of the Provincial Court the oath or affirmation of allegiance and the judicial oath or affirmation referred to in The Oaths of Office Act.

Functions and duties

8. It is the duty of the sheriff, sub-sheriffs, bailiffs and deputy sheriffs

(a) to execute attachment, recovery, enforcement, contempt and execution orders, writs of attachment and other orders of execution;

(b) to make and issue attachment and seizure orders upon execution and to take, store and sell real and personal property seized upon execution;

(d) to carry out duties required of the sheriff under the Jury Act;

(e) to keep and maintain in suitable books or in a computer storage and retrieval system provided for the purpose, provincial registers of executions made upon real and personal property and

(i) to search those registers and issue certificates containing the results of the searches made, and

(ii) to permit persons with an interest to search those registers during normal business hours which may be fixed by the sheriff; and

(f) to comply with, implement and exercise the requirements imposed upon the sheriff by this Act, The Judicature Act, 1986 or another Act of the province or under common law.

Prohibition against purchase

9. (1) Real or personal property exposed to a sale under legal process shall not be bid upon or purchased by

(a) the sheriff;

(b) sub-sheriffs;

(d) deputy sheriffs;

(e) the spouse of a person referred to in paragraphs (a), (b), (c), and (d); and

(f) a relation by blood or adoption who is a parent, stepparent, child, stepchild, stepbrother or stepsister of a person referred to in paragraphs (a), (b), (c), (d) and (e).

(2) Where a person contravenes subsection (1) by purchasing at a sale by legal process, that purchase is void and the real or personal property purchased at that sale shall be immediately transferred or returned to the sheriff and the sheriff shall reimburse to that person the money paid for that purchase.

(3) Where, due to the sale of the purchased property to a purchaser in good faith, a person who has contravened subsection (1) by purchasing at a sale by legal process cannot transfer or return that property to the sheriff, that person shall pay to the sheriff the same amount of money as was paid to that person by the purchaser in good faith.

(4) A person who contravenes this section commits an offence and is liable, upon conviction

(a) for a 1^st offence, to a fine of not less than $1,000 or to imprisonment for not less than 20 days or to both a fine and imprisonment; and

(b) for each subsequent offence, to a fine of not less than $1,500 or to imprisonment for not less than 30 days or to both a fine and imprisonment.

Records to be kept

10. (1) The sheriff and each sub-sheriff shall keep and maintain in suitable books or in computer storage and retrieval systems provided for the purpose

(a) a record of every process received by the sheriff or sub-sheriff, the court out of which the order issued, the date of the receipt, the nature of the order, the names of the parties, the solicitor who has requested the service of that process, the action taken and the date and nature of the returns made;

(b) a record of every execution order or order or writ of that nature received by the sheriff or sub-sheriff, the court out of which the order or writ issued, the date of the receipt, the nature of the order or writ, the names of the parties, the solicitor who has requested that execution order, the action taken and the date and nature of the returns made;

(c) a cash record of all money received and paid by the sheriff and sub-sheriffs in their official capacity, or in connection with the office of the sheriff, for a service, for fees, service of process and papers, attendance at court, money levied or collected upon execution, or under execution orders and writs or otherwise, the date of the receipt or payment and the cause, matter or service in, or on account of which payment was received or paid;

(d) a separate book or record of the daily fees, commissions, allowances and expenses received and the amounts disbursed in carrying on their functions and duties; and

(e) other records that the minister may require.

(2) All records, books, computer hardware and computer software, accounts, papers, warrants, money and other things possessed by the office of the sheriff or sub-sheriff are held by that office in trust for the Crown in right of the province or the person having a right to them.

(3) The records kept under this section shall be maintained in accordance with accepted accounting principles.

Audit

11. The auditor general or an auditor appointed by the Lieutenant-Governor in Council shall annually audit the accounts of the office of the sheriff.

Information release

12. (1) Information regarding fees, commissions, allowances and expenses received and disbursements made by the office of the sheriff may be made available to persons authorized by the minister solely for the purposes of this Act or an Act of the province which provides for the imposition of a tax.

(2) Notwithstanding subsection (1), where there is

(a) an agreement with another province or the Government of Canada; or

(b) an Act of the province or Canada respecting the compilation of data and the completion of statistics

the information referred to in subsection (1) may be made available in accordance with that agreement or Act.

Execution

13. (1) The sheriff, or in the case of the absence of the sheriff, the sub-sheriff shall

(a) immediately upon executing upon real or personal property; and

(b) immediately upon receiving the information from the sub-sheriff under paragraph (2)(a),

record in the appropriate provincial register of executions kept and maintained under paragraphs 8(e)

(d) the date of the execution; and

(e) the name of the party in whose name or at whose instruction the execution was effected.

(2) Every sub-sheriff, other than the sub-sheriff appointed under paragraph 4(1)(a), who executes upon real property within the area of jurisdiction of that sub-sheriff shall

(a) immediately following the execution, inform the sheriff by facsimile mail, telex, telephone or other mechanical means of the information required to be entered into the provincial register under subsection (1);

(b) keep a record of the description of the real property affected by the execution, the dates on which the execution was affected and the party on whose behalf or at whose instance it was effected; and

Executions to be directed to sheriff

14. (1) An instruction upon an execution order directed to anyone but the sheriff or a sub-sheriff is invalid.

(2) Every instruction upon an execution order directed to the sheriff or sub-sheriff shall clearly identify by description or definition the property on which an execution is required to be made and the sheriff or sub-sheriff is empowered to require reasonable proof of ownership or interest in the property on which an execution is required to be made.

(3) Nothing in this section shall prevent the sheriff or sub-sheriff from directing an instruction upon an execution order to a bailiff or a deputy sheriff.

Payment of disbursements

15. The sheriff is not bound to effect service, execution or seizure of or under a process of the court unless, if demanded by the sheriff, all reasonably anticipated disbursements are first paid to the sheriff or an undertaking satisfactory to the sheriff is given by the solicitor issuing the process.

Returns

16. (1) A party to an action or proceeding, or the solicitor for that party, may by written instruction require the sheriff, sub-sheriff, bailiff or deputy sheriff to make a return of an execution order.

(a) where the execution is effected by the sheriff, sub-sheriff or bailiff, within 20 days from the date of the instruction; or

(b) where the execution is effected by a deputy sheriff following a direction under subsection 14(3), within 30 days from the date of instruction.

(2) The sheriff, sub-sheriff, bailiff or deputy sheriff shall

(a) return all execution orders directed to them within the time required by subsection (1) upon written instruction to that effect with the amount of the fees, commissions, poundage, allowances and expenses permitted by law endorsed upon the return; and

(b) record the action taken upon every execution order returned by them by endorsement upon the execution order which is returned.

Misconduct

17. The sheriff or every sub-sheriff, bailiff or deputy sheriff entrusted with the execution of an execution order, writ, warrant or process who wilfully commits misconduct in that execution or wilfully makes a false return to an execution order, writ, warrant or process

(a) commits an offence and is liable on summary conviction to a fine of not more than $500 or to imprisonment for a term of not more than 6 months or to both a fine and imprisonment and is liable in full for damages awarded to a person aggrieved by the misconduct or false return; and

(b) is liable to forfeiture of office.

Fees

18. (1) All fees, commissions, allowances and expenditures payable to and receivable by the sheriff, sub-sheriffs or bailiffs under this or another Act shall be paid into the Consolidated Revenue Fund.

(2) A person who has delivered an instruction upon an execution order or process of the court to the sheriff or sub-sheriff, and the solicitors for that person, are liable to pay the fees, allowances and expenses permitted by law for rendering that execution or process.

Finance

19. (1) Money paid into the office of the sheriff or collected under an execution order or under a statute of the province or of Canada and held in trust by the office of the sheriff to which, following an inquiry by the sheriff or sub-sheriff

(a) there is no person legally entitled;

(b) the person legally entitled is either not known or that person's whereabouts are unknown; or

may be paid by the sheriff into the Consolidated Revenue Fund.

(2) A person entitled to money paid into the Consolidated Revenue Fund under subsection (1) may apply to the Trial Division for an order

(a) that the person is legally entitled to that money; and

(b) directing the Minister of Finance to pay over to that person the money and interest that are set out in the order.

(3) Upon receipt of a copy of an order issued under subsection (1) the Minister of Finance shall pay the money and interest set out in the order from the Consolidated Revenue Fund to the appropriate person.

Regulations

20. The Lieutenant-Governor in Council may make regulations

(a) respecting the payment of disbursements under section 15;

(b) respecting private process servers and bailiffs;

(d) respecting matters necessary or advisable to carry out effectively the intent and purpose of this Act.

Saving

21. Except as otherwise provided for in this Act, the rights, powers, privileges, duties, obligations and liabilities of the sheriff or anyone permitted by law to perform the duties of the sheriff in force or existing prior to the enactment of this Act shall continue to exist.

Non-application of 1990 c.46 s.4

22. For the purposes of duties and obligations carried out under this Act by the sheriff, sub-sheriffs, bailiffs and deputy sheriffs, section 4 of The Motor Carrier Act, 1990 shall not apply.

Present offices

23. Notwithstanding sections 3, 4 and 5, every sheriff, sub-sheriff, bailiff and deputy sheriff in office prior to the coming into force of this Act is deemed to be the sheriff, a sub-sheriff, bailiff and deputy sheriff appointed under this Act.

1986 c.42 Amdt.

24. (1) Subsection 55(2) of The Judicature Act, 1986 is amended by striking out the commas and words ", the High Sheriff, sub-sheriffs, bailiffs or process servers".

(2) Sections 80 to 85 inclusive of The Judicature Act, 1986 are repealed.

1975-76 No.73
Rep.

25. The Sheriff's Act, 1976 is repealed.

Commencement

26. This Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council.

©Earl G. Tucker, Queen's Printer