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SNL1991 CHAPTER 39

SHERIFF'S ACT, 1991

Amended:

1992 c39 s16; 1996 cJ-1.1 s201; 1997 c13 s66; 2001 cN-3.1 s2; 2006 c9; 2011 c10 s1

CHAPTER 39

AN ACT RESPECTING THE OFFICE OF THE HIGH SHERIFF OF NEWFOUNDLAND AND LABRADOR

2001 cN-3.1 s2

(Assented to December 11, 1991)

Analysis



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 .

1991 c39 s1

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Definitions

        2. In this Act

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

             (b)  "enforcement order" except where the context otherwise indicates, means an attachment order or other enforcement procedure carried out under the Judgment Enforcement Act and an attachment, recovery, enforcement, contempt and other order of execution;

             (c)  "minister" means the minister appointed under the Executive Council Act to administer this Act;

          (c.1)  "person" includes a natural person and his or her executors, administrators and other legal representatives and also includes a firm, partnership, corporation and an unincorporated society or association; and

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

1991 c39 s2; 1996 cJ-1.1 s201; 2001 cN-3.1 s2; 2006 c9 s1

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High Sheriff

        3. The Lieutenant-Governor in Council shall appoint a person to be known as the High Sheriff of Newfoundland and Labrador 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.

1991 c39 s3; 2001 cN-3.1 s2

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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.

1991 c39 s4

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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.

1991 c39 s5

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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.

1991 c39 s6

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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.

1991 c39 s7

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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 enforcement orders and other orders of execution;

             (b)  to carry out enforcement proceedings and duties in accordance with the Judgment Enforcement Act or another Act;

             (c)  to make all returns to the court which are required by law;

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

             (e)  to keep, maintain and use a computer storage and retrieval system in accordance with theJudgment Enforcement Act;

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

1991 c39 s8; 1996 cJ-1.1 s201

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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;

             (c)  bailiffs;

             (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, brother, sister, 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 1st 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.

1991 c39 s9; 1992 c39 s16

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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)  [Rep. by 1996 cJ-1.1 s201]

             (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 enforcement 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.

1991 c39 s10; 1996 cJ-1.1 s201

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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.

1991 c39 s11

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Information release

      12. (1) Information regarding fees, 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.

1991 c39 s12; 1996 cJ-1.1 s201

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Rep. by 1996 cJ-1.1 s201

      13. [Rep. by 1996 cJ-1.1 s201]

1996 cJ-1.1 s201

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Rep. by 1996 cJ-1.1 s201

      14. [Rep. by 1996 cJ-1.1 s201]

1996 cJ-1.1 s201

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Rep. by 1996 cJ-1.1 s201

      15. [Rep. by 1996 cJ-1.1 s201]

1996 cJ-1.1 s201

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Rep. by 1996 cJ-1.1 s201

      16. [Rep. by 1996 cJ-1.1 s201]

1996 cJ-1.1 s201

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Misconduct

      17. The sheriff or every sub-sheriff, bailiff or deputy sheriff entrusted with the execution of an enforcement 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.

1991 c39 s17; 1996 cJ-1.1 s201

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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 enforcement 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.

1991 c39 s18; 1996 cJ-1.1 s201

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Finance

      19. (1) Money paid into the office of the sheriff or collected under an enforcement 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

             (c)  the person legally entitled, in writing, rejects or renounces entitlement,

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 minister for a declaration that the person is legally entitled to the money.

             (3)  An application for a declaration under subsection (2) shall be made in writing to the minister and shall be accompanied by

             (a)  a statement, sworn or affirmed by the applicant, containing the information relating to the application; and

             (b)  a bond of indemnity granted and executed by the applicant in favour of and in a form satisfactory to the minister for an amount not less than the amount of the money applied for.

             (4)  Where the minister is satisfied that a person applying under subsection (2) is entitled to the money, the minister shall,

             (a)  not sooner than 15 days after receipt of the application; and

             (b)  not later than 30 days after receipt of the application

notify the Minister of Finance in writing of the applicant's entitlement.

             (5)  Upon receipt of the minister's notification provided under subsection (4), the Minister of Finance shall pay the money and interest from the Consolidated Revenue Fund to the person entitled to it.

             (6)  Where the minister is not satisfied of the applicant’s entitlement to the money and refuses to direct the Minister of Finance to pay it to the applicant, the applicant may, within 15 days of the minister’s decision, apply to a judge of

             (a)  the Provincial Court , where the amount is $25,000 or less; or

             (b)  the Trial Division, where the amount is greater than $25,000,

for an order and the judge of the Provincial Court or the Trial Division may issue an order

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

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

             (7)  Notwithstanding subsection (4), where the minister is notified within 15 days of receipt of the application under subsection (2) that a third party claims an interest in the money the minister shall

             (a)  refuse to pay the money to the applicant; and

             (b)  direct the third party to make application within 15 days to the court as provided in paragraphs (6)(a) or (b).

             (8)  Where a third party fails to make application to the court within the 15 days allotted under subsection (7) and the minister is satisfied of the applicant’s entitlement and the applicant has complied with the requirements under subsection (3), the minister shall direct the Minister of Finance to pay the money and interest from the Consolidated Revenue Fund to the applicant.

             (9)  Upon receipt of an order under subsection (6), or the minister’s direction under subsection (8), the Minister of Finance shall pay from the Consolidated Revenue Fund to the person entitled to it the money and interest set out in the order.

1991 c39 s19; 1996 cJ-1.1 s201; 2006 c9 s2; 2011 c10 s1

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Liability for interest

   19.1 (1) The sheriff is not liable to account to a creditor, debtor or other person claiming to be a beneficiary, for interest received by the sheriff on money paid into the office of the sheriff or collected under the Judgment Enforcement Act or an Act of another of the provinces or of Canada and held in trust by the sheriff and

             (a)  deposited in a bank, trust company or other depository; and

             (b)  deposited with other money received or held for or on account of creditors, debtors or persons claiming a third party interest generally.

             (2)  The interest on money referred to in paragraphs (1)(a) and (b) shall be paid by the sheriff into the Consolidated Revenue Fund.

1996 cJ-1.1 s201

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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; and

             (c)  [Rep. by 1996 cJ-1.1 s201]

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

1991 c39 s20; 1996 cJ-1.1 s201

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Fees

   20.1 The minister may set the scale of fees to be taken by the sheriff, sub-sheriffs, deputy sheriffs, bailiffs or process servers.

1997 c13 s66

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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.

1991 c39 s21

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Non-application of RSN 1990 cM-19 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 shall not apply.

1991 c39 s22

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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.

1991 c39 s23

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RSN 1990 cJ-4 Amdt.

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

             (2)  Sections 81 to 87 inclusive of the Judicature Act are repealed.

1991 c39 s24

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RSN 1990 cS-14 Rep.

      25. The Sheriff's Act is repealed.

1991 c39 s25

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Commencement

      26. This Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council.  (In force - Jan. 31/92)

1991 c39 s26