NEWFOUNDLAND REGULATION 67/97

Short title

1. These regulations may be cited as the Judgment Enforcement Regulations.

Definitions

2. In these regulations

(a) "Act" means the Judgment Enforcement Act;

(b) "appliances" and "household furnishings" means

(i) a washing machine,

(ii) a clothes dryer,

(iii) bedroom suites and bedding that are reasonably necessary for the debtor and his or her dependants,

(iv) an oven and stove top burners,

(v) dishes and kitchen utensils necessary for the debtor and his or her dependants, and

(vi) strollers, cribs and highchairs necessary for the debtors' dependants;

(i) a brother, sister, parent or grandparent,

(ii) a child or other person who is less than 16 years of age, and

(iii) a person who is 16 years or more of age and who is in regular attendance at school or because of a mental or physical disability is unable to earn a livelihood and who lives in the same household as the debtor or whose care in an institution is paid for by the debtor;

(d) "enterprise" means a corporation, estate of a deceased person, trade union, named or unnamed trust, bankrupt, partnership, syndicate or joint venture, or a group or business organization which is not an individual;

(e) "motor vehicle" means a vehicle propelled, driven or controlled otherwise than by muscular power, other than a trailer or a vehicle running on fixed rails;

(f) "registrant" means a creditor, solicitor or other person acting for a creditor who registers a notice of judgment or a notice of attachment and information or documents related to that notice of judgment or notice of attachment in the registry; and

(g) "spouse" means either of a man and woman who

(i) are married to each other,

(ii) are married to each other by a marriage that is voidable and has not been voided by a judgment of nullity, or

(iii) have gone through a form of marriage with each other in good faith, that

is void and are cohabiting or have cohabited within the preceding year.

Records

3. (1) The registry may contain records which refer to charges, liens and encumbrances known to be outstanding against a debtor's property, notwithstanding that those charges, liens and encumbrances arise under another Act or law and are not governed by this Act.

(2) Information contained in the registry under subsection (1) shall be made available to the public as determined by the sheriff.

General debtor information

4. (1) Where the debtor is a natural person, the registrant

(a) shall, in the manner required under section 5, enter the name of that debtor under the heading of "debtor"; and

(b) may, on the required form, enter the birth date of the debtor with the year entered first followed by the number of the month and the number of the day.

(2) Where the debtor is an enterprise, the registrant

(a) shall, in the manner required under section 6, enter the name of that debtor under the heading of "debtor"; and

(b) may on the required form, enter the name and position of a contact person within the enterprise to whom inquiries relating to the registration may be addressed.

(3) Where a judgment relates to more than one debtor, the registrant shall identify each debtor as a separate debtor when registering the information on that judgment.

Debtor name

5. (1) Where the debtor is a natural person, the registrant, on the required form, shall enter the last name of the debtor, followed by the first name and followed by the middle name, if any.

(2) Where the debtor is a natural person with more than one middle name, the registrant shall on the required form provide the first of the debtor's middle names.

(3) Where the debtor is a natural person whose name consists of one word, the registrant shall enter that name in the field for entering the last name of the debtor.

(4) Where the debtor is a natural person who carries on a business under a name other than that person's own name, the registrant

(a) shall enter that person's own name as a natural person; and

(b) may enter, in accordance with section 6, that person's business name as an enterprise name.

(5) Where the debtor is a natural person, his or her name shall, for the purpose of section 4, be determined as follows:

(a) where the debtor was born in Canada and the debtor's birth is registered with a government agency responsible for the registration of births in a province or territory of Canada, the name of the debtor shall be the name stated on the debtor's birth certificate;

(b) where the debtor was born in Canada but his or her birth is not registered with a government agency responsible for the registration of births, the name of the debtor shall be

(i) the name as stated in his or her current passport issued by the Government of Canada,

(ii) if the debtor does not have a current Canadian passport, or that information is not available, the name as stated on a current social insurance card issued to the debtor by the Government of Canada, or

(iii) if the information under subparagraphs (i) and (ii) does not exist or is not available, the name as stated in a current passport issued to the debtor by the government of the jurisdiction where that debtor habitually resides;

(c) where the debtor was not born in Canada but is a Canadian citizen, the name as stated in the debtor's certificate of Canadian citizenship;

(d) where the debtor was not born in Canada and is not a Canadian citizen, the name of the debtor shall be

(i) the name stated in a current visa issued to the debtor by the Government of Canada,

(ii) if the debtor does not have a current Canadian visa, or it is not available, the name stated in a current passport issued to the debtor by the government of the jurisdiction where the debtor habitually resides, or

(iii) if the debtor does not have a visa or passport referred to in subparagraphs (i) and (ii), or they are not available, the name stated in the birth certificate or equivalent document issued to the debtor by the government agency responsible for the registration of births at the place where the debtor was born;

(e) notwithstanding paragraphs (a) to (d), if the debtor changes his or her name after marriage or in accordance with change of name legislation, the name is the name adopted by the debtor after marriage, if that name is recognized under the laws of the jurisdiction where the debtor habitually resides, or the name stated in the debtor's change of name certificate or equivalent document;

(f) notwithstanding paragraph (e), where the laws of the jurisdiction in which the debtor habitually resides allow a person to use the name adopted after marriage and the name a person had before marriage, and the debtor uses both names, paragraphs (a) to (d) apply and the name of the debtor determined in accordance with those paragraphs and the name of the debtor adopted after marriage shall be registered as separate debtor names; and

(g) where paragraphs (a) to (f) do not apply to the debtor, the name is the name stated on any 2 of the following documents issued to the debtor by the Government of Canada or of a province or territory of Canada:

(i) a current motor vehicle operator's licence,

(ii) a current vehicle registration, and

(iii) a current medical insurance card.

(6) For the purpose of subsection (5), the name of the debtor shall be determined as of the date of the judgment against him or her.

(7) In addition to entering the name of a debtor who is a natural person in accordance with subsections (1) to (6), the registrant may enter, on the required form, another name of the debtor of which the registrant has knowledge.

Corporations

6. (1) Where the debtor is a corporation, the registrant shall enter the name of that corporation on the required form.

(2) The registrant shall enter on the required form, under separate "debtor" headings, forms of the name of the debtor that is a corporation if the name of that debtor is in more than one of the following forms:

(a) an English form;

(b) a French form; and

(3) In entering the name of a debtor that is a corporation, the registrant may enter, with or without a period, the abbreviation "Ltd.", "Ltee", "Inc.", "Incorp.", "Corp.", "Co.", or "Cie" or "Limited", "Limitee", "Incorporated", "Incorporee", "Corporation", "Company" or "Compagnie".

Estate

7. Where the debtor is an enterprise that is the estate of a deceased person, the registrant shall enter on the required form, the first name of the debtor followed by the first of the middle names followed by the last name of the deceased debtor, unless his or her name consists of one name, in which case only that one name shall be entered, followed by the word "estate".

Trade union

8. Where the debtor is an enterprise that is a trade union, the registrant shall enter on the required form

(a) the name of the trade union; and

(b) in accordance with section 5, the name of each person representing the trade union in the transaction giving rise to the judgment.

Unnamed trust

9. Where the debtor is a trustee acting for an enterprise that is in the form of a trust and the document creating the trust does not designate the name of the trust, the registrant shall enter on the required form, the first name, followed by the first of the middle names and followed by the last name of at least one of the trustees, unless the name of the trustee consists of one word, in which case only that word shall be entered, followed by the word "trustee".

Bankrupt

10. Where the debtor is a trustee acting for an enterprise that is in the form of the estate of a bankrupt natural person, the registrant shall enter on the required form, the first name followed by the first of any middle name, followed by the last name of the bankrupt, unless the name of the bankrupt consists of only one word, in which case that word shall be entered, followed by the word "bankrupt".

Bankrupt enterprise

11. Where the debtor is a trustee acting for an enterprise that is in the form of the estate of a bankrupt enterprise, the registrant shall enter on the required form the name of the bankrupt enterprise followed by the word "bankrupt".

Partnership

12. (1) Where the debtor is a debtor because of membership in an enterprise that is a partnership, the registrant shall enter on the required form

(a) in the case of a partnership as defined under the Partnership Act, the name under which the firm carries on business; and

(b) in the case of a limited partnership, the firm name of the partnership as required under the Limited Partnership Act.

(2) Where the debtor is a debtor because of membership in an enterprise that is a partnership, other than one referred to in subsection (1), the registrant shall enter on the required form

(a) the first name of the partnership; and

(b) in accordance with section 5, the name of at least one of the partners.

(3) Where, under subsection (2), the partnership does not have a name, the registrant shall enter on the required form and in accordance with section 5, the names of all of the partners.

Syndicate or joint venture

13. Where the debtor is a debtor because of participation in an enterprise that is a syndicate or a joint venture, the registrant shall enter on the required form

(a) the name of the syndicate or joint venture as stated in the document creating it; and

(b) in accordance with sections 5 and 6, the name of each participant in that joint venture.

Other enterprise

14. (1) Where the debtor is a debtor because of membership or participation in an association, organization or enterprise other than one referred to in sections 7 to 13, the registrant shall enter on the required form

(a) the name of the association, organization or enterprise; and

(b) in accordance with section 5, the name of each person representing the association, organization or enterprise in the transaction giving rise to the registration.

(2) For the purpose of subsection (1), if the name of the association, organization or enterprise is stated in a constitution, charter or other document creating it, the registrant shall enter the name in the form stated in that constitution, charter or other document.

Representatives of an enterprise

15. (1) For the purpose of sections 7 to 14, a person representing an enterprise in a transaction giving rise to a registration is a person with the power to bind the enterprise or its officers or members and who has exercised that power in the formation of the contract or contracts in the transaction.

(2) Where under sections 7 to 14

(a) the name of a natural person is to be entered on the required form by a registrant, the name shall be entered in the manner required by sections 4 and 5; or

(b) the name of the corporation is to be entered on the required form by a registrant, the name shall be entered in the manner provided under sections 4 and 6.

Debtor information

16. In addition to the name of the debtor required under sections 4 to 15, the registrant shall enter on the required form the address of the debtor and may enter on the required form, the debtor's telephone and telecopier number.

Financial questionnaire

17. Where a debtor who is a natural person completes a financial questionnaire under section 64 of the Act, he or she shall indicate on that questionnaire, his or her date of birth, street address, medical care insurance number and where held, his or her driver's licence number.

Order for costs

18. A creditor who received an order for costs in an action where a notice of judgment has previously been registered shall not register that order for costs as a separate notice of judgment but may add those costs to the enforcement debt in accordance with section 22 of the Act.

Correction of information

19. (1) Where information and data registered with respect to a notice of judgment or a notice of attachment is erroneous because of

(a) a typographical error;

(b) the provision of incorrect information to the sheriff; and

the sheriff may amend or change that information or data to ensure that the correct information or data is registered.

(2) Where the sheriff amends or changes registered information or data under subsection (1), he or she shall first be satisfied that the amendment or change is necessary and correct and may require further information respecting that necessity or correctness.

(3) The instructing creditor, debtor and all creditors with a related notice of judgment or notice of attachment shall be notified by the sheriff of an amendment or change made under subsection (1).

Assignment of judgment

20. (1) A person who is entitled to enforce a judgment may make a total or partial assignment of that judgment to another person.

(2) Where the sheriff is satisfied that all of a creditor's or another person's rights under a judgment have been assigned, he or she may amend the notice of judgment to show the name of the assignee.

(3) Where the sheriff is satisfied that a portion of a creditor's or another person's rights under a judgment has been assigned, he or she may divide the notice of judgment and register

(a) a replacement notice of judgment in favour of the creditor indicating the amount that remains owing under the judgment to the creditor; and

(b) a replacement notice of judgment to the assignee of the judgment indicating the amount that is owing in accordance with the portion assigned to the assignee.

(4) Where a replacement notice of judgment is issued under subsection (3), that notice of judgment

(a) stands in the place of the notice of judgment that is being replaced; and

(b) shall be dated with the same date as that shown on the notice of judgment that is being replaced.

(5) For the purpose of the expiration of the notice of judgment and any limitation period which applies to that notice of judgment, the replacement notice of judgment shall be considered to have been registered on the same date as the original notice of judgment filed by the assigning creditor.

Removal of data

21. (1) A creditor, debtor, assignee, or other interested person may, in writing, request that the sheriff remove data and information from the registry where there is or appears to be a defect, omission, irregularity or addition to the information properly contained in the records.

(2) The sheriff may remove data and information as requested in accordance with this section or where the sheriff perceives that there is an error of data or information in the registry respecting a notice of judgment or notice of attachment, provided that it is in his or her opinion just and equitable to make that removal.

(3) The sheriff may apply to the court for directions with respect to a request made under subsection (1).

(4) The instructing creditor, debtor and all persons with a related notice of judgment shall be notified of the removal of information under this section or of an application to the court made under subsection (3).

Demand for discharge

22. (1) A written demand made under subsection 45(2) of the Act shall clearly state the reason for the demand, the nature of the discharge or amendment sought, the names of the creditor and the debtor and the registration number of the notice of judgment.

(2) The written demand referred to in subsection (1) shall be served by personal service, facsimile or by registered mail.

(3) A copy of the demand referred to in subsection (1) shall be delivered to the sheriff within 10 days of the making of the demand.

Required form

23. (1) The information required to create a notice of judgment, amend a notice of judgment, create a notice of attachment and amend a notice of attachment shall be in the required form.

(2) Where information is required under the Act and the regulations is to be in or entered on a required form, that information shall be entered and provided in the manner required by that form and where that information is not entered and provided in that manner, the sheriff may determine that the form and the information on it is not to be filed in the registry until it is completed in a manner that is satisfactory to the sheriff.

Examination

24. (1) A creditor shall serve a notification of examination under section 66 of the Act upon a debtor or other person who is to be examined, by registered mail or personal service not less than 15 days before the intended date of that examination.

(2) Where a questionnaire under Part IV of the Act is served with the notification referred to in subsection (1), that completed questionnaire shall be delivered to the sheriff not fewer than 5 days before the date established for the examination.

(3) Where a questionnaire under Part IV, completed and in required form, is returned to the sheriff by a person notified of an examination in accordance with subsection (1), the sheriff shall deliver a copy of that questionnaire to the creditor.

(4) A debtor or other person being examined may have legal counsel during an examination under Part IV of the Act and this section.

(5) A creditor or representatives, counsel or agents of the creditor shall not harass, coerce, harangue or abuse a person being examined.

(6) A creditor may ask any question within the debtor's or other person's knowledge or means of knowledge which is reasonably connected to determining the debtor's ability to satisfy the claims of the creditor.

(7) A creditor may request that a book, paper, record or other document of the debtor or other person or within their control or custody and reasonably connected to the debtor's ability to satisfy the claims of the creditor be produced for examination by the creditor.

Service of documents

25. (1) Where the sheriff or another person is required under the Act to serve a document on a person, personal service may be made by giving the document to the person to be served or by leaving a copy for him or her at that person's most usual place of residence with a resident of that same place who is apparently 16 years of age or more.

(2) Personal service upon a corporation may be made by giving the document to the president, chairperson, mayor or other chief officer of the corporation or to the manager, secretary, city or town manager or clerk or other similar officer or in the manner provided under the Corporations Act.

(3) Personal service upon a partnership or an enterprise may be made by giving the document to one or more of the partners, or to a person at the principal place of business of the partnership or enterprise who appears to manage or control the partnership business or enterprise at that place.

(4) Personal service under subsections (1), (2) and (3) may be proved by a statement under oath, written or oral by the person who made the service.

(5) A person shall not serve a document by using force, intimidation or threats.

(6) Where a document is not required to be served by personal service, the document may be served by means of a telecopier

(a) on the solicitor of the person being served or that solicitor's agent; and

(b) in the case of service on a person other than under paragraph (a), at a telecopier situated in a residence or a place of business located in the province.

(7) In order for a document to be served by means of a telecopier, the document must be sent by telecopier and

(a) in the case of service on the solicitor of the person being served or on that solicitor's agent, be received and printed by a receiving telecopier that is situated at the office of the solicitor or the solicitor's agent; and

(b) in the case of service on a person other than under paragraph (a), be received and printed by a receiving telecopier that is situated in a residence or a place of business located in the province.

(8) A telecopier may only be used under this section if the telephone number for the telecopier at which service is to take place has a 7 digit number that appears with the word "fax" or with a reference to a telecopier

(a) in, or attached to; or

(b) on a letter enclosing,

a document or notice under the Act or regulations, by, from or on behalf of the person to be served or that person's solicitor or his or her agent.

(9) Where the sheriff is required to serve a notice or other document under this Act, and the method is other that by personal service, the sheriff may serve that notice or other document by ordinary mail and that service is considered to have been made 7 days after the date on which it was mailed to the last known address of the person or enterprise being served.

(10) For the purpose of subsection 75(3) of the Act, 3 attempts at personal service are sufficient to establish an inability to serve enforcement documents.

Seizure

26. (1) Personal property is considered seized in accordance with paragraph 75(1)(b) of the Act when a notice prescribed by the sheriff and describing the property is affixed to the property in a reasonably secure manner so as to clearly indicate that seizure but not in a manner that might lead to damage to that property.

(2) A notice of the terms of sale under subparagraph 83(g)(i) of the Act shall include the name of the creditor who is proposing to purchase the property, the notice of judgment registration number, the name of the debtor, the proposed price for the property, the proposed date of the sale and, shall have attached, copies of any written appraisals previously provided to the creditor intending to purchase the property.

Identification of property

27. Where a creditor gives instructions with respect to enforcement proceedings which include instructions to seize or sell personal property, or to sell real property those instructions shall be of sufficient detail to enable the sheriff to identify the property and its location.

Examination

28. (1) A debtor who has been served with a notice of examination under section 66 and who is

(a) hospitalized; or

(b) incompetent at the time scheduled for the examination,

shall not be penalized under this Act for failure to appear at that examination.

(2) A debtor may, in consultation with the creditor, agree upon a changed place and time for an examination under section 66 and shall inform the sheriff of that change.

(3) Where an examination is changed under subsection (2), section 66 of the Act shall apply as if the changed place and time were a notification served under subsection 66(2) of the Act.

Amendment of garnishee order

29. (1) Where a debtor's

(a) income;

(b) number of dependants;

(d) exemptions allowed under section 131,

change while a garnishee order is in force, or where

(e) there has been an error in the estimation of an amount owed or in the calculation of exemptions;

(f) there is an agreement for a change between the debtor and all creditors; and

(g) there was a defect or irregularity in the previous order,

the sheriff may, where appropriate, amend the garnishee order amount to reflect that change.

(2) A person seeking to change the garnishee amount shall provide the sheriff with

(a) instructions in writing;

(b) an affidavit stating the facts that give rise to the request for the change and the grounds for belief in those facts; and

(3) A garnishee order may be renewed before that order expires and shall be effective in accordance with subsections 114(1) and (2) of the Act as if it were a new garnishee order issued on the expiry date of the garnishee order.

(4) A garnishee order shall be renewed under subsection (3) upon application of the creditor to the sheriff in the required form.

(5) In accordance with subsection 40(2) and paragraph 114(3)(e), the renewal of a garnishee order under subsection (3) shall not extend beyond a date which is 10 years after the date of the original judgment.

Exemptions

30. (1) The maximum number and value of property exempt from enforcement proceedings under sections 131 of the Act shall be for

(a) clothing of the debtor and his or her dependants, of a value totalling $4,000;

(b) appliances and household furnishings, of a value totalling $4,000;

(d) items of a sentimental value to the debtor, a value totalling $500;

(e) fuel or heating as a necessity for the debtor and his or her dependants;

(f) the debtor's equity in his or her principal residence, $10,000; and

(g) personal property use for income earning as referred to in paragraph 131(i), a total of $10,000.

(2) For the purpose of paragraph (1)(f), "principal residence" has the same meaning as in subsection 131(2) of the Act.

Income exemption

31. (1) The net income of a person who is a debtor for a month that is exempt from enforcement proceedings shall be

(a) in the case of a person supporting a spouse, the sum of $1,019;

(b) in the case of a married person supporting a spouse and one dependant, the sum of $1,059;

(c) in the case of a married person supporting a spouse and more than one dependant, the sum of $1059 plus $47 for each dependant in excess of one;

(d) in the case of a person supporting one or more dependants, the sum of $963 plus $47 for each dependant in excess of one; and

(e) in the case of another person, the sum of $649.

(2) Where a debtor's number of dependants changes, the sheriff may amend an income exemption certificate in accordance with subsection (1) to reflect that change.

(3) For the purpose of the Act and the regulations the terms "net income" and "net pay" of a person who is a debtor are the total employment earnings of that person less the following deductions:

(a) income tax deducted from those earnings under the Income Tax Act (Canada);

(b) employment insurance deducted from those earnings under the Employment Insurance Act (Canada);

(d) pension plan amounts deducted under the Pension Benefits Act, 1996 or the Pension Benefits Standards Act, 1985 (Canada); and

(e) professional membership and trade union dues considered deductible under the Income Tax Act (Canada).

(4) For the purpose of this section "employment earnings" has the same meaning as defined in paragraph 110(1)(b) of the Act.

Expenses and costs

32. (1) In accordance with subsection 116(3) of the Act a garnishee is entitled to not more than $25.00 when a garnishee order is first placed with the garnishee.

(2) An amount which may be added to the enforcement debt under subparagraph 22(a)(iv) of the Act shall not be added to that enforcement debt without prior written approval of the sheriff or his or her deputy and the sheriff or his or her deputy may determine the validity of that amount and may accept or reject a proposed amount or a portion of it.

(3) Expenses and costs referred to in paragraphs 154(1)(c) and 156(4)(a) of the Act may include

(a) fees and expenses paid by the creditor to the sheriff;

(b) fees and expenses paid by the creditor to a person to serve a document required to be served under this Act;

(d) storage fees;

(e) advertising costs;

(f) trucking costs;

(g) auctioneer's costs and fees;

(h) searching fees relating to

(i) motor vehicle registration,

(ii) the registration of bills of sale, conditional sales and chattel mortgages, and

(iii) the registration of land deeds

in the province;

(i) appraisal costs; and

(j) other fees, expenses and costs,

which are necessary to produce the distributable fund and the sheriff may determine if those expenses and costs are reasonable and necessary to produce that fund.

(4) Expenses and costs under paragraph 154(1)(c) of the Act shall not include solicitor fees except as ordered by the court.

(5) Notwithstanding subsection (4), where the sheriff incurs legal or other expenses or costs because of a review of an objection under section 159 of the Act, and that objection is, in accordance with subsection 159(2) found not to be effective, those expenses or costs may be added to the outstanding amount of the enforcement debt.

Commencement

33. These regulations shall come into force on June 1, 1997.