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Statutes of Newfoundland 1996


CHAPTER J-1

CHAPTER J-1.1

AN ACT RESPECTING JUDGMENT
ENFORCEMENT

(Assented to December 19, 1996)

Analysis

1. Short title

2. Interpretation

PART I
GENERAL

3. Application

4. Crown is bound

5. Administration of enforcement system

6. Assistance and advice

7. Offence

8. Execution of documents, etc.

9. Payment of fees and expenses

10. Discontinuance of proceedings

11. Application to court

12. Service

13. Registry

14. Searches of the registry

15. Recovery for loss

16. Cause of action

17. Payment of claim for loss

18. Administrative records

19. Public access to records

20. Statement of status

21. Notice of change

22. Enforcement debt

23. Enforcement documents

24. Employee protection

PART II
PREJUDGMENT RELIEF

25. Definitions

26. Process for enforcement

27. Attachment order

28. Scope of attachment order

29. Attachment order without notice

30. Termination of attachment order

31. Provision of alternative security

32. Sale, etc. of attached property

33. Registration of attachment order and disclosure

34. Priorities

35. Enforcement proceedings, etc.

36. Inconsistent actions

PART III
NOTICE OF JUDGMENT

37. Definitions

38. Registration required

39. Effective notice of judgment and enforcement by contempt

40. Money judgment not in force

41. Registration

42. Amendment, transfer and data removal

43. Registration not constructive notice

44. Error or omission

45. Discharge and amendment

46. Property bound

47. Knowledge of notice of judgment

48. Subordinate interests

49. Subsequent interests

50. Prior security interests in personal property

51. Purchase money security interests

52. Disposition of goods

53. Fixtures and growing crops

54. Negotiable instruments

55. Market security

56. Other rights

57. Priority of liens

58. Effect of seizure

59. Interests in land

60. Ten day delay

61. Interaction between notices of judgment

62. Interest subject to sale

63. Interest in an obligation

PART IV
INFORMATION REGARDING ENFORCEMENT

64. Voluntary questionnaires

65. Sheriff questionnaire

66. Examination

67. Sheriff to be given notice

68. Identification of debtor

69. Disclosure

PART V
SEIZURE OF PERSONAL PROPERTY

70. When seizure available

71. Instructions to seize

72. Instruction requirements

73. Scope of seizure

74. Demand on third party

75. Effecting seizure

76. Entry onto premises

77. Seizure valid notwithstanding irregularity

78. Custody of seized property

79. Report

80. Termination of seizure and notice of claim

81. Sale of property, etc.

PART VI
SPECIAL SEIZURE MECHANISMS

82. Application of Part

83. Cash and instruments

84. Obligations

85. Products of nature

86. Fixtures

87. Mobile homes

88. Partners interest

89. Definitions

90. Effecting seizure

91. Duties of issuer

92. Duties of intermediary

93. Liability of issuer or intermediary

94. Liquidation of security

95. Liquidation procedure re non-market shares

96. Execution of transfer documents

97. Missing security certificate

98. Effect of transfer

99. Foreign issuers

PART VII
LAND

100. Application of Part

101. Instructions

102. Method of sale

103. Service of documents and entry on land

104. Unharvested products

105. Waiting period

106. Sale of land

107. Severance of joint tenancy, etc.

108. Transfer of land

109. Small claims judgments

PART VIII
GARNISHMENT

110. Definitions

111. General principles re garnishment

112. Initiating garnishment proceedings

113. Contents of garnishee order

114. When garnishee order is in effect

115. Discretionary exemption

116. Garnishee's duties

117. Payment as discharge

118. Garnishee dispute

119. Money not to be distributed

120. Money in court

121. Employment earnings

122. Joint entitlement

123. Deposit accounts

124. Conditional obligation

125. Enforcement of garnishee's duties

PART IX
RECEIVERS AND SPECIAL REMEDIES

126. Court appointed remedies

127. Considerations re appointment of receivers

128. Receivers

PART X
EXEMPTIONS

129. Definitions

130. Non-applicability of Part

131. Exempted property

132. Co-ownership

133. Property exceeding exempted values

134. Extension of exemptions

135. Other dispositions of exempt property

136. Selection of property

137. Survival of exemptions

138. Determination of exemption

139. Income exemption

140. Income exemption certificate

141. Income exemption limits

142. Adjustment of income exemption amount

143. Extension of income exemption

144. Claim procedure

145. Employment earnings protected

146. Instalment order

147. Default

148. Stay of enforcement

149. Corporations and partnerships

PART XI
DISTRIBUTIONS

150. Applies to all distributions

151. Distributable fund

152. Money derived from exempted property

153. Eligible claims

154. Distribution of fund

155. Surplus

156. Statement of proposed distribution

157. Overpayment

158. Claimant is a debtor

PART XII
DISPUTES

159. Notice of objection

160. Application to court

161. Notice of third party interest

162. Notice of claim

163. Procedure

164. Objection or disputed claim

165. Claims made outside prescribed period

166. Non-application to registered interests

167. Non-application of Part

PART XIII
IMPEACHABLE TRANSACTIONS

168. Definitions

169. Exception

170. Fraudulent transfers

171. Intent to prefer

172. Preferential effect

173. What constitutes transaction

174. Transaction in good faith

175. Payment to creditor

176. Restoration of security to creditor

177. Saving of payment to creditor

178. Proceeds of property

179. Declaration from court

180. Order for preservation

PART XIV
REGULATIONS

181. Regulations

182. Forms

183. Fees

184. Judicature Act and Rules to apply

PART XV
PENALTIES, REPEAL, AMENDMENTS AND MISCELLANEOUS

185. Penalty

186. Transitional

187. Transitional

188. RSN1990 cA-19 Amdt.

189. RSN1990 cA-20 Rep.

190. RSN1990 cB-3 Amdt.

191. RSN1990 cC-28 Amdt.

192. RSN1990 cC-36 Amdt.

193. RSN1990 cJ-2 Amdt.

194. RSN1990 cJ-4 Amdt.

195. RSN1990 cL-11 Amdt.

196. SN1995 cL-16.1 Amdt.

197. RSN1990 cP-3 Amdt.

198. SN1995 cP-31.1 Amdt.

199. RSN1990 cP-41 Amdt.

200. RSN1990 cS-6 Amdt.

201. 1991 c39 Amdt.

202. RSN1990 cS-16 Amdt.

203. RSN1990 cS-31 Amdt.

204. Review

205. 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 Judgment Enforcement Act.

Interpretation

2. (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 an obligation and a security interest in or lease of specific goods or specific goods and accessions, but does not include a security agreement providing for a security interest in specific goods and after-acquired goods other than accessions;

(g) "clearing agency" means an entity that provides

(i) centralized facilities for the clearing of trades in securities, or

(ii) centralized facilities as a depository in connection with the clearing of trades in securities,

and includes a nominee of that entity;

(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, planted or attached to land by roots or forming a part of trees or plants attached to land, and includes trees only if they are

(i) nursery stock,

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

(iii) being grown for use in reforestation of land other than land on which the trees are growing;

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

(l) "deposit account" means a demand, time, savings passbook or similar account at a bank, treasury branch, trust company, credit union or similar organization, but does not include an account evidenced by an instrument;

(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 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 but does not include a support order as defined in the Support Orders Enforcement Act except as provided in section 3;

(cc) "land", except in Part III, includes an interest in land but does not include

(i) growing crops, or

(ii) 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) "market security" means

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

(ii) an obligation of a person or entity, including a corporation, partnership, association, organization, government, trust or fund, or

(iii) a right to acquire or to sell an interest or obligation referred to in subparagraph (i) or (ii)

that is one or part of a class or series

(iv) listed and posted for trading on a securities exchange, or

(v) for which values or prices routinely appear in published securities market reports or in quotation services used by securities dealers;

(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;

(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;

(xx) "security certificate" means, except in sections 89 to 99, a writing that is

(i) in bearer, order or registered form,

(ii) of a kind commonly dealt in on securities exchanges or markets or commonly recognized in any area in which it is issued or dealt in as a medium for investment,

(iii) one of a class or series or by its terms divisible into a class or series, and

(iv) evidence of a share, participation or other interest in or obligation of the issuer of the writing,

but does not include

(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 writing;

(yy) "security interest" means an interest in property that secures payment or performance of an obligation;

(zz) "sheriff" means the High Sheriff appointed under the Sheriff's Act, 1991;

(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 shall be considered to know or have knowledge of a matter when information in respect of that matter is acquired by that person under circumstances in which a reasonable person would take cognizance of the information;

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

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

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

(i) an officer of the corporation, or

(ii) a senior employee of the corporation with responsibility for matters to which the information relates,

under circumstances in which a reasonable person would take cognizance of the information, or when the information in writing has been delivered to the registered office or attorney for service for the corporation;

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

(i) an officer of the association,

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

(iii) all the members

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

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

(3) A reference in this Act to 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.

PART I
GENERAL

Application

3. (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 made under that Act, 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 judgment or order is a support order within the meaning of the Support Orders Enforcement Act, the director appointed under that Act may register that support order in accordance with section 38 and that registered support order shall be considered to be a notice of judgment to which this Act shall apply, provided that a distributable fund relating to that notice of judgment shall, notwithstanding another provision of this Act, be payable to the director appointed under the Support Orders Enforcement Act.

(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) 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) notwithstanding paragraph (e), 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) notwithstanding paragraph (e), 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.

Crown is bound

4. (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.

Administration of enforcement system

5. (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.

Assistance and advice

6. 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.

Offence

7. (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.

Execution of documents, etc.

8. 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.

Payment of fees and expenses

9. (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.

Discontinuance of proceedings

10. (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.

Application to court

11. (1) The court or, the Court of Appeal where an application is made to that court, may, on application by an interested person 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) except where this Act provides otherwise, make another order or direction in respect of matters coming under this Act that it considers appropriate or necessary;

(j) award costs; and

(k) make another order that it considers appropriate or necessary.

Service

12. (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.

Registry

13. (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.

Searches of the registry

14. (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; or

(b) defendant under Part II, in the name of the defendant.

(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.

Recovery for loss

15. (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.

Cause of action

16. (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 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, an action shall not be brought against the Crown, the sheriff, an employee or agent for an error or omission in respect of the discharge or purported discharge of a duty or function under this Act except as provided under section 15.

Payment of claim for loss

17. (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.

Administrative records

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

Public access to records

19. (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).

Statement of status

20. (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.

Notice of change

21. (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.

Enforcement debt

22. 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.

Enforcement documents

23. (1) The enforcement documents are:

(a) a notice of seizure, a copy of a garnishee order or a notice of the proposed terms and method of sale of 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.

Employee protection

24. (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,

(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.

PART II
PREJUDGMENT RELIEF

Definitions

25. In this Part

(a) "claim" means a claim that would 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.

Process for enforcement

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

Attachment order

27. (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.

Scope of attachment order

28. (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 claimant's claim, including interest and costs, and related notices of judgment, 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.

Attachment order without notice

29. (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.

Termination of attachment order

30. (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.

Provision of alternative security

31. 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.

Sale, etc. of attached property

32. (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.

Registration of attachment order and disclosure

33. (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.

Priorities

34. (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.

Enforcement proceedings, etc.

35. (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.

Inconsistent actions

36. (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.

PART III
NOTICE OF JUDGMENT

Definitions

37. 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

(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" includes 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.

Registration required

38. (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, or a certified true copy of that judgment, and when registered, the information taken from that judgment is the notice of judgment.

(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.

Effective notice of judgment and enforcement by contempt

39. (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) A money judgment may be enforced by a contempt order in accordance with Rule 53 of the Rules of the Supreme Court, 1986.

Money judgment not in force

40. (1) A money judgment is not in force

(a) if it has been satisfied; or

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

(2) A money judgment shall not be in force more than 10 years from the date of the judgment and a money judgment based on a money judgment shall not be in force more than 10 years from the date of the original judgment.

(3) An action or proceeding on a money judgment shall not be brought where the money judgment is not in force as provided in subsection (2).

(4) For the purpose of determining whether a money judgment is in force, a person searching the registry shall rely on the date of judgment stated in the notice of judgment.

Registration

41. (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.

(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.

Amendment, transfer and data removal

42. (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.

(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.

Registration not constructive notice

43. 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.

Error or omission

44. 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 that has jurisdiction with respect to the money judgment 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.

Discharge and amendment

45. (1) A creditor shall

(a) discharge a notice of judgment where the money judgment is no longer in force other than by virtue of subsection 40(2);

(b) amend a notice of judgment to reflect the terms and conditions of an order to stay enforcement proceedings; or

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

(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 discharged.

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

Property bound

46. (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.

Knowledge of notice of judgment

47. 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.

Subordinate interests

48. (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.

Subsequent interests

49. 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.

Prior security interests in personal property

50. (1) Where a security interest in personal property is created before the registration of a notice of judgment that binds that personal property, the priority of the notice of judgment shall be determined in accordance with the provisions of an Act providing for the registration of the security interest as if

(a) the notice of judgment created a security interest in the nature of a fixed charge on the property; and

(b) the security interest was registered in accordance with the provisions of that Act,

at the time the notice of judgment was registered on the registry.

(2) For the purpose of subsection (1), the personal property of a debtor is bound by a notice of judgment notwithstanding that the security interest was created, attached or registered before the notice of judgment was registered.

(3) Subsection (1) applies to future advances and after-acquired property.

(4) Subsection (1) does not apply to a security interest in a fixture or a growing crop that is created under a security interest in land on which the fixture or crop is located.

(5) In this section, "security interest" means an interest in personal property which may be registered under the Assignment of Book Debts Act, the Bills of Sale Act, the Conditional Sales Act or the Registration of Deeds Act.

Purchase money security interests

51. (1) A purchase money security interest in personal property which is otherwise subordinate to a notice of judgment has priority over the notice of judgment.

(2) Subsection (1) shall not apply to a security interest if another Act provides for the registration of the security interest and

(a) the security interest was not registered within a period for registration as provided in that Act; or

(b) the security interest was not registered within 15 days from the creation of the security interest.

Disposition of goods

52. (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 interest or goods does not exceed $1000 or, in the case of a lease, the market value of the lease does not exceed $1000.

(3) A sale or lease under this section may be for money, by exchange for other property, or on credit, and includes delivering goods or a document of title to goods under a pre-existing contract for sale but does not include a transfer as security for, or in total or partial satisfaction of, a money debt or past liability.

Fixtures and growing crops

53. (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) Where goods become a fixture on land bound by a notice of judgment, for the purpose of determining the priority of a security interest in the fixture the notice of judgment shall be considered to be a security interest in the land created and registered in accordance with the requirements of the Registration of Deeds Act at the time the land was bound by the notice of judgment.

(4) Where crops are located on land bound by a notice of judgment, for the purpose of determining the priority of a security interest in the crops the notice of judgment shall be considered to be a security interest in the land created and registered in accordance with the requirements of the Registration of Deeds Act at the time the land was bound by the notice of judgment.

(5) Where

(a) goods that are bound by a notice of judgment become a fixture; or

(b) a notice of judgment binds a growing crop,

a notice of that fact in a required manner and form may be registered in the registry of deeds.

(6) Where a person acquires an interest in a fixture or a growing crop that is bound by a notice of judgment by acquiring an interest in the land on which the fixture or crop is located, that person's interest is not subordinate to the notice of judgment unless

(a) a notice was registered against the interest as provided in subsection (5) before the person acquired the interest; or

(b) the notice of judgment also bound the interest in the land.

Negotiable instruments

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

(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.

Market security

55. A person who acquires a market security in a transaction that is settled through a clearing agency has priority over a notice of judgment that binds the market security if that person did not have knowledge of the notice of judgment at the time of settlement.

Other rights

56. A transferee of a right, other than 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.

Priority of liens

57. 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.

Effect of seizure

58. Notwithstanding the provisions of another 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.

Interests in land

59. (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).

Ten day delay

60. 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.

Interaction between notices of judgment

61. (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.

Interest subject to sale

62. (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.

Interest in an obligation

63. (1) When money received as a result of enforcement proceedings with respect to an obligation is distributed, a person who does not assert a claim with respect to that property before that money is distributed may 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.

PART IV
INFORMATION REGARDING ENFORCEMENT

Voluntary questionnaires

64. (1) A creditor may serve a questionnaire on the debtor or another person to be completed and returned to the sheriff for the purpose of determining the ability of the debtor or other person to satisfy the claims of the creditor.

(2) A debtor or other person shall return the completed questionnaire with 15 days of service of it on the debtor or other person.

Sheriff questionnaire

65. (1) A person who is required to submit to an examination under section 66 shall deliver a questionnaire to the sheriff regarding the matters upon which they may be properly examined.

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

Examination

66. (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 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 place and time and failure to do so is an offence under this Act.

(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.

Sheriff to be given notice

67. (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.

Identification of debtor

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

Disclosure

69. 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.

PART V
SEIZURE OF PERSONAL PROPERTY

When seizure available

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

(2) Exigible 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.

Instructions to seize

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

Instruction requirements

72. (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.

Scope of seizure

73. (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.

Demand on third party

74. (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 where a security, as defined in section 89, is held on behalf of a debtor by a clearing agency or an intermediary, as defined in that section.

(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.

Effecting seizure

75. (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) If the sheriff is unable to serve the enforcement documents as required by subsection (2), the instructing creditor may proceed in the same manner as if the debtor had been served with the enforcement documents and did not deliver a notice of objection to the sheriff as required by subsection 159(1).

(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.

Entry onto premises

76. 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.

Seizure valid notwithstanding irregularity

77. (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.

Custody of seized property

78. (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.

Report

79. (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).

Termination of seizure and notice of claim

80. (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) If 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 a notice of that proposed release to every creditor who, at the time that that notice is given, has a related notice of judgment, of his or her intention to release that property from seizure.

(3) A creditor served with a notice under subsection (2) may apply to the court within 15 days of receiving that notice for a continuance of the seizure on the terms and conditions that the court may impose.

(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.

Sale of property, etc.

81. 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, or

(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;

(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.

PART VI
SPECIAL SEIZURE MECHANISMS

Application of Part

82. (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.

Cash and instruments

83. 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.

Obligations

84. (1) For the purpose of seizing and dealing with a secured obligation, other than a market 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 market 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.

Products of nature

85. 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.

Fixtures

86. (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.

Mobile homes

87. (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.

Partners interest

88. (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.

Definitions

89. (1) In this section and sections 90 to 99

(a) "holder" means, in relation to a security, a person

(i) who or whose nominee is the registered holder of the security,

(ii) who has possession of a security certificate evidencing the security, or

(iii) for whom a clearing agency holds the security;

(b) "intermediary" means

(i) a holder who holds the relevant security on behalf of a debtor, but does not include a clearing agency unless the clearing agency's own records show that the clearing agency holds the relevant security for the debtor, or

(ii) where the security is a retirement fund as defined in paragraph 129(m), the administrator or trustee of the retirement fund;

(c) "issuer" means the issuer of securities that are the subject of seizure proceedings;

(d) "registered holder" means a person shown as the owner or holder of a security in the records of the security's issuer or the records of the issuer's transfer agent;

(e) "security" means a share or market security, and for the purpose of paragraphs 90(1)(c) and sections 92 and 93, includes a retirement fund as defined in paragraph 129(m);

(f) "security certificate" means a document evidencing a security; and

(g) "share" means a share in a corporation.

(2) For the purpose of this Part and the regulations, "transfer agent" means a person or group of persons appointed by an issuer as its agent for the purpose of

(a) maintaining a securities register;

(b) recording the transfer of securities;

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

(d) providing services that are ancillary to matters referred to in paragraphs (a) to (c).

Effecting seizure

90. (1) The sheriff may seize a security

(a) if the security is evidenced by a security certificate, by seizing the security certificate in accordance with Part V;

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

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

(d) where it is possible to effect seizure of the security by one or more of the methods referred to in paragraphs (a) to (c), by whichever method the sheriff considers most appropriate in the circumstances.

(2) Notwithstanding subsection (1), a seizure may be effected in accordance with paragraph (1)(b) or (c) only if the notice of the seizure is served in the province on the issuer or intermediary.

Duties of issuer

91. (1) Where the debtor is the registered holder of a security that the sheriff has seized otherwise than in accordance with paragraph 90(1)(b), the sheriff shall serve a notice of the seizure on the issuer as soon after effecting the seizure as is practicable.

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

(a) send the documents to the sheriff and allow him or her 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 issuer to the debtor; and

(c) comply with instructions given by the sheriff regarding the seized security where the issuer would be required to comply with the instruction if that instruction was given by the debtor while the security was not seized.

(3) Except as it applies to the debtor, nothing in subsection (2) shall be construed so that it adversely affects a right of a holder of a security certificate under a law in force in the province or the laws under which the issuer of the security certificate is incorporated or constituted.

Duties of intermediary

92. (1) Where the sheriff has seized a security by serving a notice of the seizure on an intermediary,

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

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

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

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

(e) if instructed by the sheriff and if possible, the intermediary shall register the security in the name of the sheriff or deliver a security certificate evidencing the security to the sheriff or both; and

(f) if instructed by the sheriff, the intermediary shall liquidate the security and pay to the sheriff proceeds to which the debtor would otherwise be entitled.

(2) Notwithstanding subsection (1), seizure of a security held by an intermediary does not prejudice a right that the intermediary would otherwise have to enforce a security interest or lien for the amount owed by the debtor to the intermediary at the time of seizure.

(3) If a notice of the seizure is served on an intermediary after the intermediary has agreed on behalf of the debtor to sell a security to which the notice of seizure applies, the intermediary may complete the sale and deal with the proceeds in accordance with paragraph (1)(f).

Liability of issuer or intermediary

93. An issuer or intermediary who fails to comply with a duty imposed on it under section 91 or 92 is liable for a pecuniary loss suffered by the creditors as a result of the failure.

Liquidation of security

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

(2) Except as provided in section 98, a restriction on the transfer of a security, other than a constraint under section 280 of the Corporations Act, does not apply to the transfer of a security by the sheriff under this Act.

Liquidation procedure re non-market shares

95. (1) This section applies only to shares that are not market securities.

(2) Where an issuer has been served with a notice of the seizure in respect of certain shares, the issuer shall inform a person of that service where he or she requests information from the issuer regarding the debtor's 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 issuer;

(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 issuer, 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 issuer and the existing shareholders of the issuer 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 for a reasonable price.

(8) A person who would otherwise be entitled to acquire or redeem the shares for a predetermined price or at a price fixed by reference to a predetermined formula is entitled to buy or redeem the shares from the 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 sheriff's 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 regarding 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 realizing the value of the shares other than through sale;

(b) suspending sale proceedings; or

(c) directing that the share issue 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).

Execution of transfer documents

96. The issuer of a security is not required to acknowledge a document executed or endorsed by the sheriff or a receiver unless the document is accompanied by the certificate of the sheriff or receiver stating that the document has been executed or endorsed by the sheriff or receiver under this Act.

Missing security certificate

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

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

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

(c) the instructing creditor has made satisfactory provision for indemnification of the issuer against a liability the issuer may incur in respect of the security certificate.

Effect of transfer

98. (1) On presentation of a transfer document endorsed or executed by the sheriff or receiver that is in compliance with section 96, the issuer shall register the transfer of a registered security to the person named as transferee in the transfer document.

(2) In addition to an agreement to which the transferee is considered by section 245 of the Corporations Act to be a party, the transferee shall be considered to be a party to a shareholders' agreement regarding

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

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

to which the 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.

(3) Notwithstanding subsection (2) and section 245 of the Corporations Act, the court may declare that the transferee is not bound by a term or provision of an agreement, by-law or article that discriminates against the transferee by reason of the transferee acquiring the securities through enforcement proceedings.

Foreign issuers

99. Where

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

(b) the court is satisfied that the issuer or some other person is likely to suffer actual prejudice as a result of a conflict between anything in this Part and the laws under which the issuer is incorporated or otherwise constituted,

the court may, upon the application of an interested person, make an order it considers necessary to prevent the issuer or person from being prejudiced.

PART VII
LAND

Application of Part

100. 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.

Instructions

101. (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 of sale were served upon all creditors with a related notice of judgment;

(e) a statement indicating a person who appears to be a spouse of the debtor within the meaning of the Family Law Act; and

(f) other documents or information reasonably required by the sheriff to sell the land.

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

Method of sale

102. The sheriff may sell land by a method of sale that is commercially reasonable.

Service of documents and entry on land

103. (1) Before land is sold under this Act, the enforcement documents shall be served on the debtor.

(2) After the enforcement documents have been served under subsection (1), the sheriff may enter upon or gain access to the land for the purpose of conducting an inspection that is reasonably required to effect a sale of the land.

Unharvested products

104. Growing crops and unharvested products of aquaculture may be sold as part of a sale of land under this Part if the notice of intention to sell served under section 103 states that they are to be sold along with the land.

Waiting period

105. (1) The sheriff shall not, unless otherwise permitted by the court, offer or advertise the land for sale until 60 days have elapsed from the day that section 103 has been complied with.

(2) The sheriff shall not, unless otherwise permitted by the court, conduct a sale of the land or enter into an agreement for the sale of the land until 90 days have elapsed from the day that section 103 has been complied with.

(3) A court may extend the waiting periods provided in subsections (1) and (2).

Sale of land

106. (1) Not less than 30 days before offering land for sale a notice of the proposed terms and method of sale, in the required form, shall be served upon the debtor, the instructing creditor, creditors with a related notice of judgment, and other interested persons.

(2) The notice of the proposed terms and method of sale shall set out the proposed minimum price for and terms of sale of the land and shall state that a person who objects to the proposed terms, method of sale or minimum price shall notify the sheriff, in writing, of the objection within 30 days from the day of being served with a notice of the proposed terms and method of sale.

(3) Before serving a notice of the proposed terms and method of sale of land under subsection (1), the sheriff shall obtain a written appraisal of the land by a qualified appraiser, and where there is no qualified appraiser in the area of the land, the sheriff shall obtain a statement of the fair market value of the land from a licensed real estate agent familiar with land values in the area in which the land is located.

(4) Land shall not be sold by the sheriff for less than 75% of the appraised value of the land unless the sheriff or the instructing creditor first obtains approval from the court upon an application after notice has been served upon the debtor, creditors with a related notice of judgment and other interested persons.

(5) If a person served under subsection (1) serves a written notice of an objection on the sheriff within the time referred to in subsection (2), the sheriff shall not sell the land and shall make an application to the court for an order directing the method and terms of sale of the land after serving notice upon the debtor, instructing creditor, creditors with a related notice of judgment and other interested persons.

(6) Notwithstanding subsection (5), where, in the opinion of the sheriff, the objection is frivolous or merely intended to delay or prolong enforcement proceedings, the sheriff may disregard the notice of an objection, shall serve his or her decision upon the person making the objection and that notice is not effective.

(7) Where the sheriff disregards a notice of an objection under subsection (6), the person who made that objection may apply to the court within 15 days of the service of the decision for a determination of the issue.

(8) Where a notice of an objection is not served within the time referred to in subsection (2), the objection is not effective, and where an application is not made within the time referred to in subsection (7), the sheriff may complete the sale of the land in accordance with the proposed terms and method of sale and for a price that equals or exceeds the proposed minimum price.

Severance of joint tenancy, etc.

107. (1) Enforcement proceedings against a debtor's interest as a joint tenant of land, whether created at common law or by statute, sever the joint tenancy when the sheriff has entered into an agreement to sell the debtor's interest.

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

(a) the amount owing on the notice of judgment; or

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

(3) For the purpose of subsection (2), value shall have the same meaning as in Part X.

Transfer of land

108. (1) Upon completion of the sale in accordance with this Act, the sheriff shall execute a deed transferring title to the land to the transferee.

(2) Notwithstanding subsection (1), where an interest in land is sold under a court order made under subsection 106(5), the sheriff shall not transfer the interest until satisfied

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

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

(i) that the order is no longer subject to an appeal, or

(ii) if the order has been appealed, that the appeal has been concluded and the order is no longer subject to a further appeal.

Small claims judgments

109. (1) Notwithstanding subsection 101(1), a creditor with a money judgment issued under the Small Claims Act shall not instruct the sheriff to sell the debtor's land.

(2) Where land against which a Small Claims Act creditor has a notice of judgment is sold upon the instruction of a creditor with a related notice of judgment, the distributable fund created by that sale of land shall be distributable to the creditor with the Small Claims Act judgment in accordance with Part XI.

PART VIII
GARNISHMENT

Definitions

110. (1) In this Part

(a) "current obligation" means an obligation, or a portion of an obligation, that on the day of service of a garnishee order on the garnishee

(i) is payable,

(ii) is payable on demand, or

(iii) is payable on satisfaction of a condition to which subsection 124(1) applies;

(b) "employment earnings" means wages, salary, commissions or remuneration for work by a natural person however computed;

(c) "future obligation" means an obligation or a portion of an obligation that is not a current obligation and that

(i) shall arise or become payable in certain circumstances or at a certain time or times under an existing agreement or trust, an issued security, or the will of a deceased person,

(ii) shall arise or become payable in the ordinary course of events from an existing employment relationship,

(iii) is a statutory obligation that is likely to arise or become payable as a result of an event that has occurred, or

(iv) may arise or become payable in respect of an existing cause of action;

(d) "garnished obligation" means an obligation against which a garnishee order has been issued;

(e) "garnishee" means a person on whom a garnishee order is served for the purpose of attaching an obligation that is owed or may become owing by that person to a debtor;

(f) "garnishee order amount" means

(i) the amount for which a garnishee order was originally issued, or

(ii) where the garnishee has been served with a notice of a change in the amount referred to in subparagraph (i), the amount set out in that notice;

(g) "joint entitlement" means an obligation that is or shall be owed to 2 or more persons jointly;

(h) "net pay" means the total employment earnings payable by an employer to a person in a month minus deductions that may be prescribed by regulation;

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

(j) "pay period" means a period at the end of which a person is entitled to be paid all or a portion of that person's employment earnings for that period;

(k) "security" has the meaning set out in paragraph 89(1)(e); and

(l) "statutory obligation" means an obligation imposed by an Act of Canada or of a province or territory of Canada.

(2) For the purpose of paragraph (1)(c),

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

(b) a reference to an existing agreement includes an agreement that amends or replaces an agreement that was existing when the relevant garnishee order was served on the garnishee.

General principles re garnishment

111. For the purpose of enforcing a money judgment by means of garnishment,

(a) except as otherwise provided by this or another Act, a current obligation or future obligation is attachable by garnishment;

(b) an obligation is not attachable if it is

(i) evidenced by an instrument,

(ii) unless authorized by the court, a market security,

(iii) an obligation of an issuer or intermediary to the debtor with respect to a security which may be seized in accordance with Part VI, and

(iv) an obligation that is seized, subject to a garnishee order, or otherwise subject to enforcement proceedings;

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

(d) a garnishee order attaches the garnished obligation when the garnishee order and other required documents are served on the garnishee;

(e) an obligation that is owed to a debtor by a person carrying on business as a partnership within the province may be attached if the garnishee order is served on the partnership within the province notwithstanding that one or more members of the partnership do not reside in the province;

(f) except as provided under section 88, where a joint entitlement is owed to a debtor and another person, a garnishee order may be issued against that joint entitlement;

(g) a payment made by a garnishee under this Part or on a judgment granted under section 125 discharges the garnishee, to the extent of the payment, as against the debtor;

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

(i) the right to the set-off already existed when the garnishee order was served on the garnishee,

(ii) the right to the set-off arose after the garnishee order was served on the garnishee but the set-off arose because of an obligation entered into by the garnishee before service of the garnishee order, or

(iii) it would be inequitable not to allow the set-off; and

(i) money held by the sheriff is not subject to garnishment.

Initiating garnishment proceedings

112. (1) A creditor may instruct the sheriff to issue a garnishee order.

(2) The sheriff shall issue a garnishee order only when a creditor has provided

(a) instructions in writing;

(b) a current statement of status;

(c) an affidavit referred to in subsection (4);

(d) the information respecting the obligation to be attached that the sheriff reasonably requires;

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

(f) other information as required by the sheriff.

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

(4) Instructions to issue a garnishee order delivered to the sheriff shall be accompanied by an affidavit in the required form

(a) stating that to the best of the deponent's belief, the garnishee is under a current obligation or future obligation to the debtor; and

(b) briefly stating the grounds for that belief.

Contents of garnishee order

113. A garnishee order shall be in the required form and shall

(a) be issued for the amount of the enforcement debts outstanding on all related notices of judgment against the debtor;

(b) where issued with respect to the debtor's employment earnings, state the income exemption amount determined under section 140;

(c) briefly describe the obligation or obligations against which it is issued; and

(d) set out its expiry date.

When garnishee order is in effect

114. (1) A garnishee order expires one year from the day on which it was issued.

(2) Notwithstanding subsection (1), where a garnishee order is issued in respect of a deposit account, the garnishee order expires 60 days from the day on which it was issued.

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

(a) the garnishee order expires;

(b) the garnishee pays the garnishee order amount to the sheriff;

(c) the sheriff notifies the garnishee that the garnishee order is no longer in effect;

(d) the garnishment proceedings are terminated by order of the court; and

(e) the expiration of the judgment upon which the garnishee order is grounded.

(4) A garnishee order may be amended in accordance with the regulations to change the garnishee order amount.

(5) Notwithstanding subsections (1) and (2), a garnishee order may be renewed or replaced in accordance with the regulations.

Discretionary exemption

115. Where the source of a garnished future obligation

(a) is property of the debtor; or

(b) is an agreement between the debtor and the garnishee,

the court upon the application of an interested person may exempt from attachment as much of the obligation as is required by the debtor to keep or maintain the property or to perform the agreement.

Garnishee's duties

116. (1) Where a garnishee order is served on a garnishee,

(a) the garnishee shall pay to the sheriff the lesser of

(i) the amount payable by the garnishee to the debtor in respect of the attached obligation, or

(ii) the garnishee order amount

within 15 days from

(iii) in the case of a current obligation, the day of being served with the garnishee order, or

(iv) in the case of a future obligation, the day that the future obligation or a portion of it becomes payable; and

(b) the garnishee shall comply with the duties that may be prescribed by regulation.

(2) For the purpose of subparagraph (1)(a)(ii), the garnishee order amount shall be the garnishee order amount stated in the garnishee order or the most recent amendment less payments made by the garnishee to the sheriff since the service of the garnishee order or an amendment to that order.

(3) A garnishee shall be entitled to an amount prescribed by regulation as compensation for carrying out the garnishee's duties.

Payment as discharge

117. A payment made by a garnishee to the sheriff which is accompanied by a notice of third party interest discharges the garnishee to the extent of the payment as against a person disclosed in that notice.

Garnishee dispute

118. (1) Where a garnishee disputes the paying of money to the sheriff in accordance with the garnishee order, the garnishee shall, in writing, within 15 days from the day of being served with the garnishee order, notify the sheriff of the dispute.

(2) The sheriff shall deliver a copy of a dispute received under subsection (1) to the debtor and all creditors with related notices of judgment.

(3) Notification in accordance with subsection (1) does not affect the operation of the garnishee order.

Money not to be distributed

119. Money received under a garnishee order may not be distributed as enforcement proceeds until

(a) the appropriate enforcement documents have been served on the debtor and the expiration of the time within which the debtor may serve a notice of objection in accordance with section 159;

(b) the expiration of the time within which a notice of third party interest is to be returned to the sheriff;

(c) where a notice of claim has been or will be served on a third party in accordance with section 162, the expiration of the period within which the person may deliver a notice of claim to the sheriff; and

(d) the expiration of another period provided in this Act.

Money in court

120. (1) Where money is standing to the credit of a debtor in a court, the sheriff may serve a garnishee order on the clerk of that court.

(2) Where a cause of action has been attached, the garnishee may, upon filing the garnishee order and relevant adjustments with the clerk of the court, pay money into court under the Judicature Act and the Rules of the Supreme Court, 1986.

(3) Where otherwise payable to the debtor, money paid into court under subsection (2) shall be paid out to the sheriff in accordance with the procedures under the Judicature Act and the Rules of the Supreme Court, 1986.

Employment earnings

121. (1) Unless permitted under subsection 147(5) a garnishee order shall not be issued with respect to the debtor's employment earnings.

(2) For the purpose of garnishing a debtor's employment earnings from the debtor's employer

(a) in a month during which a garnishee order is in effect, the garnishee order attaches the amount by which a debtor's net pay for the month exceeds his or her income exemption amount for the month stated in the garnishee order as determined under section 140;

(b) the employment earnings that are attached by a garnishee order in a month shall, at the end of the debtor's last pay period that ends during the month, be paid by the garnishee to the sheriff;

(c) at the end of a debtor's last pay period for each month during which a garnishee order is in effect, the garnishee shall deliver to the sheriff a statement setting out

(i) the debtor's total employment earnings for the pay periods that ended during the month,

(ii) the number of the debtor's dependents, and

(iii) the particulars of amounts deducted in calculating the debtor's net pay for the month;

(d) a garnishee's compensation for dealing with the garnishee order as permitted under subsection 116(3) shall be included in the calculation of the amount attached by a garnishee order, but may be deducted from the debtor's employment earnings only where the debtor's net pay exceeds the debtor's income exemption amount;

(e) the priority of a garnishee order served on an employer shall be determined in accordance with the provisions of the Support Orders Enforcement Act and a garnishee order shall not alter or change the obligation to make the payments required under that garnishee order;

(f) the effect of a support order within the meaning of the Support Orders Enforcement Act on the calculation of the surplus income of a debtor shall be determined in accordance with the provisions of Part X of this Act; and

(g) an interruption of less than 30 days in a debtor's employment shall not be taken into account in determining the effect of a garnishee order issued against the debtor's employment earnings.

(3) Paragraphs 114(3)(b) and 116(1)(a) do not apply to a garnishee order issued against employment earnings.

(4) Where a notice of judgment arises from an order for maintenance or support and there is filed with the sheriff a

(a) certified copy of that order;

(b) certified copy of the affidavit of arrears upon which the notice of judgment was issued; and

(c) completed application under Part II of the Family Orders and Agreements Enforcement Assistance Act (Canada),

the sheriff, at the request of the creditor, shall issue a garnishee order in the required form directed to the Crown in right of Canada for the purpose of the Family Orders and Agreements Enforcement Assistance Act (Canada) and that garnishee order shall cease to have effect on the expiry of the notice of judgment.

Joint entitlement

122. For the purpose of garnishing a joint entitlement in which a debtor has an interest:

(a) on being served with a garnishee order, the garnishee's response to the order shall include the names and addresses of the joint obligees other than the debtor;

(b) after a garnishee has responded to a garnishee order, a copy of the garnishee order and a notice of the garnishee's response shall be served on each joint obligee;

(c) if disclosure of a joint obligee's address would be unlawful or a breach of a legal duty owed by the garnishee to the obligee, paragraphs (a) and (b) shall not apply and the garnishee shall

(i) serve the garnishee order on the obligee, and

(ii) certify in the garnishee's response that the garnishee has done so;

(d) where a joint entitlement is owed to a debtor and another person, it is presumed for the purpose of this Part that an equal portion of the joint entitlement is owed to each joint owner;

(e) notwithstanding paragraph (d), if, on application by a creditor without notice to another person, it appears to the court that the debtor may be beneficially entitled to a larger portion of the joint entitlement than is presumed under that paragraph, the court may require the garnishee to pay the larger portion to the sheriff;

(f) if an amount is received by the sheriff that exceeds the portion of a joint entitlement that is attributed to the debtor under paragraph (d), that amount may not be distributed unless the court is satisfied, on an application on notice to the other obligees, that the debtor is beneficially entitled to the excess amount;

(g) notwithstanding paragraph (d), on the application of an interested person, the court may determine the actual beneficial interest of each joint obligee; and

(h) where money is received by the sheriff in respect of a joint entitlement, that money shall not, unless the court otherwise directs, be distributed until 30 days have expired from the day that the notice is served on all the joint obligees.

Deposit accounts

123. (1) For the purpose of determining whether a deposit account obligation is payable, a condition of the account agreement

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

(b) that a person making a withdrawal shall present a pass-book or other document to the garnishee,

shall not apply for the purpose of this Part.

(2) A garnishee order that attaches a joint account only attaches the portion of the joint entitlement that is a current obligation.

(3) The court may on application by an interested person make an order necessary to prevent a garnishee from being prejudiced by the operation of this section.

Conditional obligation

124. (1) Where a garnished obligation shall arise or become payable only upon the satisfaction of a condition, the court, if satisfied that doing so shall not prejudice the garnishee, may

(a) direct that the condition not apply or be modified for the purpose of this Part;

(b) require the debtor to satisfy the condition; or

(c) authorize the sheriff or a creditor to do anything for the purpose of satisfying the condition that would otherwise have to be done by or with the authority of the debtor.

(2) An order under this section shall not shorten a period of time that otherwise shall expire before the garnished obligation shall arise or become payable.

Enforcement of garnishee's duties

125. (1) Where a garnishee

(a) does not comply with a requirement of this Part, the court may, on the application of a creditor grant the relief that it considers appropriate; or

(b) has failed to pay money to the sheriff in accordance with this Act, a creditor may apply to the court and that court may

(i) grant judgment against the garnishee for the amount of the garnishee order or a lesser amount that the court considers appropriate in the circumstances,

(ii) where the attached obligation is a money judgment, order that the judgment be assigned to a creditor, or

(iii) where the debtor has commenced an action against the garnishee to enforce the obligation, order that the action be assigned to a creditor and that the creditor have conduct of the action.

(2) Where a creditor applies to the court under paragraph (1)(b),

(a) the creditor shall deliver a copy of that application to the sheriff;

(b) subsections 164(2), (3) and (4) shall apply, with the necessary changes, as if the creditor were an instructing creditor and the application were a dispute of a third party claim;

(c) a judgment may be in the name of the applying creditor but the judgment shall be for the benefit of all the creditors who would have shared in a distribution if the money had been paid to the sheriff under this Part;

(d) a creditor who receives money as a result of an application under paragraph (1)(b) shall pay the money to the sheriff; and

(e) section 154 shall apply to the distribution of money received by the sheriff as a result of the application as if the creditor were the instructing creditor and the application were a dispute of a third party claim, with all the necessary changes.

PART IX
RECEIVERS AND SPECIAL REMEDIES

Court appointed remedies

126. (1) Notwithstanding a rule of law or equity to the contrary, where exigible property of a debtor cannot be conveniently realized and where the court considers it to be just or convenient, the court on the application of a creditor may

(a) appoint a receiver of the property;

(b) order the debtor or a person in possession or control of the property to deliver the property to the sheriff or to another person named in the order;

(c) enjoin the debtor or another person from disposing of or otherwise dealing with the property; and

(d) make an additional order that the court considers necessary to facilitate realization of the property.

(2) Where a creditor makes an application under paragraph (1)(a), that creditor shall be considered to be the instructing creditor.

(3) Where a creditor makes an application for immediate relief under paragraph (1)(c), he or she may make that application without notice to another party.

Considerations re appointment of receivers

127. In determining whether to appoint a receiver under section 126, the court shall consider

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

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

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

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

(e) the likelihood of the notices of judgment against the debtor being satisfied without resorting to the property in question.

Receivers

128. (1) A person appointed as a receiver shall agree in writing to act as a receiver in respect of the matter for which the appointment is to be made.

(2) The court may give a receiver those powers that it considers necessary for the realization of the property, including the power to manage or sell the property or bring proceedings in relation to the property.

(3) Unless otherwise ordered by the court, a receiver may take custody and control of the property over which the receiver is appointed.

(4) A receiver other than the sheriff shall

(a) promptly remit to the sheriff money realized through the receivership that is not necessary to meet the anticipated receiver's fees and expenses;

(b) at least every 6 months, deliver to the sheriff financial statements in the required form with respect to the administration of the receivership; and

(c) upon completion of the receivership, deliver to the sheriff a final account of the administration of the receivership in the required form and remit the net amount realized through the receivership.

(5) Unless the court otherwise orders, a receiver shall give security approved by the court to account for property received by the receiver, as receiver, and the receiver shall deal with the property as this Act and the court directs.

(6) Security under subsection (5) shall be paid to the Registrar of the Court.

(7) On the application of an interested person, the court may

(a) remove, replace or discharge a receiver;

(b) give a direction on a matter relating to the duties of a receiver; and

(c) approve the accounts and fix the remuneration of a receiver.

(8) The powers of the court and the duties of a receiver provided in this Part are in addition to other powers or duties provided in the Rules of Supreme Court, 1986 or which the court may otherwise exercise in its jurisdiction over receivers.

PART X
EXEMPTIONS

Definitions

129. In this Part

(a) "dependent" means a person for whose maintenance or support a debtor is responsible, or for whose maintenance or support a deceased debtor was responsible at the time of his or her death;

(b) "employment earnings" means employment earnings as defined in paragraph 110(1)(b);

(c) "income" means property of a debtor which he or she has received or has the right to receive which is in the nature of income;

(d) "income exemption amount" means the amount stated in an income exemption certificate;

(e) "income exemption certificate" means a certificate issued under section 140;

(f) "income source" means property of the debtor required to generate income and that individually or collectively is capital in nature;

(g) "instalment order" means an order issued under section 146;

(h) "life insurance" means life insurance as defined in the Life Insurance Act;

(i) "net income" of a debtor means the amount calculated for a period of time in accordance with this Part which is the sum of

(i) net pay,

(ii) retirement fund income, and

(iii) for all other income, the net income from a source calculated by deducting only expenses that are not in default and an amount that the debtor would be required to pay as taxes under an Act of the Legislature of a province or the Parliament of Canada;

(j) "net pay" means net pay as defined in paragraph 110(1)(h);

(k) "pension plan" means the rights of a person with respect to, or to the benefits under, a pension plan within the meaning of the Pension Benefits Act, 1997 and any other foreign pension plan that is similar in nature to a pension plan registerable under the provisions of the Income Tax Act (Canada);

(l) "policy" means policy as defined in the Life Insurance Act;

(m) "retirement fund" means the rights of a person under a registered retirement savings plan or registered retirement fund within the meaning of the Income Tax Act (Canada);

(n) "retirement fund income" means an amount equal to the greater of

(i) 3% of the value of a retirement fund calculated on an annual basis, or

(ii) the total of all money and the value of all property received by the debtor or the sheriff from a retirement fund, other than money or property that is exempt under section 134 to the extent that it is used to acquire property that is exempt, and money or property that is paid by the sheriff in accordance with subsection 144(3),

less

(iii) an amount that the debtor would be required to pay as taxes under an Act of the Legislature of a province or the Parliament of Canada on that amount if it were received by the debtor;

(o) "surplus income" means the amount by which a debtor's net income for a period exceeds the income exemption amount for that period; and

(p) "value" means the amount that reasonably would be realized as a result of enforcement proceedings.

Non-applicability of Part

130. (1) Unless otherwise expressly provided, this Part does not apply

(a) where the debtor is not a natural person;

(b) to property that the debtor has abandoned; or

(c) to property acquired for the purpose of defeating, hindering, delaying or defrauding creditors.

(2) Paragraph (1)(c) shall not apply to exempt property to the extent that other exempt property of that type was disposed of to enable the debtor to acquire that exempt property.

Exempted property

131. (1) The interest of a debtor in the following property is exempt from enforcement proceedings:

(a) food required by the debtor and his or her dependents during the next 12 months;

(b) necessary clothing of the debtor and his or her dependents that is of a value not exceeding an amount prescribed by the regulations;

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

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

(e) medical and dental aids that are required by the debtor and his or her dependents;

(f) items of sentimental value to the debtor that are of a value not exceeding an amount prescribed by the regulations;

(g) domesticated animals which are kept as pets and not used for a business purpose;

(h) the principal residence of a debtor that is of a value not exceeding an amount prescribed by the regulations;

(i) either

(i) personal property used by and necessary for the debtor to earn income from his or her occupation, trade, business or calling to a value not exceeding an amount prescribed by the regulations,

(ii) where the debtor's primary occupation is farming, personal property, including agricultural products, ordinarily used by and necessary for the debtor to earn income from farming to a value not exceeding an amount prescribed by the regulations,

(iii) where the debtor's primary occupation is fishing, personal property ordinarily used by and necessary for the debtor to earn income from fishing to a value not exceeding an amount prescribed by the regulations, or

(iv) where the debtor's primary occupation is aquaculture, personal property ordinarily used by and necessary for the debtor to earn income from aquaculture to a value not exceeding an amount prescribed by the regulations;

(j) except as otherwise provided by this or another Act, a pension plan; and

(k) property as prescribed by the regulations.

(2) For the purpose of paragraph (1)(h), "principal residence" means the debtor's interest in property whether real or personal which entitles the debtor to occupy a property as his or her ordinary residence.

Co-ownership

132. (1) Where the debtor is the co-owner of property described in section 131, and the property is exempt to a value prescribed by regulation, the value shall be reduced in proportion to the debtor's ownership interest in the property.

(2) For the purpose of subsection (1), where the beneficial interest in property is co-owned by the debtor and others, it shall be considered that each co-owner has an equal share in the property unless the contrary is proven.

Property exceeding exempted values

133. (1) Where

(a) a debtor owns one item of property of a type for which there is an exemption under section 131; and

(b) the debtor's equity in that property exceeds the value of the exemption for that type of property that is prescribed by regulation,

that property may be sold by enforcement proceedings.

(2) Where, under subsection 136(1), a debtor selects property to be exempt, and the debtor's equity in that selected property exceeds the exemption allowed for that type of property, that property may be subject to enforcement proceedings to the extent of any value greater than the exemption amount notwithstanding that all of the property may be sold and the exemption amount paid over to the debtor.

(3) Where

(a) a debtor owns more than one item of property of a type for which there is an exemption under section 131;

(b) section 131 does not limit the number of items of property of that type that are exempt; and

(c) the debtor's equity in that property exceeds the value of the exemption prescribed by regulation for property of that type,

a sufficient number of the items of that type of property are subject to sale under enforcement proceedings so that the total of

(d) the value of the property, money or a deposit account that is exempt under paragraph 134(a) with respect to that type of property; and

(e) the value of that type of property which the debtor continues to own,

would not exceed the value of the exemption prescribed by regulation for property of that type.

(4) Where property to which subsection (1), (2) or (3) applies is sold under enforcement proceedings, the sheriff shall, before distributing the proceeds of the sale under Part XI,

(a) pay to the debtor an amount that is equal to the lesser of

(i) the value of the exemption that is prescribed by regulation for that type of property, and

(ii) the value of the exemption prescribed by regulation for property of that type less the value of that type of property retained by the debtor; or

(b) where the property was subject to a subordinate security interest or encumbrance, and subject to an exemption applicable to the secured party, pay to the secured party the lesser of

(i) the amount calculated under paragraph (a), and

(ii) the amount owed by the debtor to the secured party.

(5) Subsection (4) does not apply to property described in paragraphs 131(f) and (g).

(6) The sheriff shall not sell property under subsection (1), (2) or (3) if the proceeds of sale would be less than the payment required by subsection (4).

Extension of exemptions

134. Where a debtor receives or retains property or money

(a) under subsection 133(4) and 135(4);

(b) from a pension plan which is not income of the debtor; or

(c) which represents the payment or distribution of all of or the balance of the property in a retirement fund,

unless intermingled with other funds or property of the debtor, the property or the money and a deposit account into which it is paid are exempt for a period of

(d) in the case of the proceeds of sale of the debtor's principal home, 180 days from the payment to the debtor; or

(e) in any other case, 60 days from receipt of the property or money by the debtor.

Other dispositions of exempt property

135. (1) Where a debtor has sold or intends to sell property which is exempt or which may be sold under subsection 133(1), (2) or (3), upon the request of the debtor, the sheriff may approve the sale at a sale price that is equal to or greater than the value of the property.

(2) Where a request under subsection (1) is with respect to land to which Part VII would apply,

(a) before approving the sale, the sheriff shall notify all creditors with related notices of judgment of the minimum price for which the sheriff proposes to approve the sale of the land;

(b) the notice referred to in paragraph (a) shall state that a person who objects to the approval of the sale for the proposed minimum price shall notify the sheriff, in writing, within 30 days from the day of being served with the notice;

(c) if a person serves a written notice of the objection under paragraph (b) on the sheriff, the sheriff shall not approve the sale of the land except on terms that are approved by the court; and

(d) if a notice of the objection is not served on the sheriff within the time mentioned in paragraph (b), the sheriff may, without an order of the court, approve the sale of the land for a price that equals or exceeds the proposed minimum price.

(3) The sheriff shall issue a certificate stating that property is released from the binding effect of a notice of judgment

(a) if the sheriff has approved the sale under subsection (1);

(b) if the sale price is equal to or greater than the approved sale price;

(c) where the approval was granted with respect to a proposed sale, if the property was exempt at the time of the sale; and

(d) if the sheriff has received an amount that is not less than the net proceeds of the sale minus the amount, to which the debtor is entitled under subsection (4).

(4) Where the sheriff approves a sale of property under subsection (1), from the proceeds of the sale the debtor is entitled to an amount equal to the lesser of

(a) the net proceeds of the sale;

(b) the value of the exemption prescribed by regulation for property of that type; and

(c) the value of the exemption prescribed by regulation for property of that type less the total of

(i) the value of the property, money or a deposit account that is exempt under paragraph 134(a) with respect to property of that type, and

(ii) the value of the property of that type which the debtor continues to own.

(5) Where the debtor receives compensation for lost, stolen, destroyed or expropriated property to which subsection (1) would apply, subsections (1) to (4) shall apply as if

(a) the sheriff had approved a sale of the property at a price equal to the value of the compensation received; and

(b) the debtor had sold the property for a price equal to the value of the compensation received.

(6) Where the debtor receives compensation for damaged property to which subsection (1) would apply, and the damaged property is reasonably suitable for it's intended use, subsections (1) to (4) shall apply as if

(a) the sheriff had approved the sale at a price equal to the sum of

(i) the value of the damaged property retained by the debtor, and

(ii) the value of the compensation received; and

(b) the debtor had sold the property for an amount equal to the amount calculated under paragraph (a).

(7) Where the debtor receives compensation for damaged property to which subsection (1) would apply, and the damaged property is not reasonably suitable for it's intended use, subsections (1) to (4) shall apply as if

(a) the sheriff had approved the sale at a price equal to the value of the compensation received; and

(b) the debtor had sold the property for an amount equal to the value of the compensation received.

Selection of property

136. (1) Where

(a) a debtor owns more than one item of a type of property for which there is an exemption under section 131; and

(b) the number of the items exceeds the maximum exemption for that type of property,

the debtor may select the items that will be exempt up to the maximum exemption.

(2) The debtor may select property to be sold in accordance with subsections 133(2) or (3).

(3) Except in the case of property described in paragraph 131(f) or (g), if the debtor does not in a timely manner make a selection under subsection (1) or (2), the sheriff may select the items that are exempt or to be sold.

Survival of exemptions

137. (1) The property of a deceased person that would be exempt if the person were alive remains exempt from enforcement proceedings against the person's estate, including enforcement proceedings with respect to property transferred to a person entitled to the property on a distribution of the estate, for the period of time that the property is used and required for the support of the deceased person's dependents.

(2) For the purpose of section 136, the representative of the estate of a deceased person referred to in subsection (1) may make a selection of the property to be exempt or to be sold taking into consideration the wishes of those persons entitled to the property upon a distribution of the estate.

(3) Where a representative of a deceased person transfers or realizes upon property of the estate of the deceased person, for the purpose of paying claims against the estate, the provisions of this Act with respect to exemptions shall apply, with the necessary changes, as the context requires as if

(a) the realization or transfer was as a result of enforcement proceedings;

(b) the representative was acting as if he or she were the sheriff; and

(c) property that would be exempt if the deceased person were alive remains exempt if the property would be used and required for the maintenance and support of the deceased person's dependents upon a distribution of the estate to the person entitled to the property.

(4) Where

(a) all claims against the estate of a deceased person have not been satisfied in full; and

(b) the only remaining property of the estate is property that

(i) would have been exempt if the deceased person were alive, and

(ii) would be used and reasonably required for the continuing support of the deceased person's dependents upon a distribution of the estate to the person entitled to the property,

the court, upon the application of an interested person, may order that the representative distribute the property to the person entitled to it on terms and conditions that may be appropriate in the circumstances.

(5) Subsections (1) and (3) do not apply to a pension plan or a retirement fund.

(6) Where a person receives property, including money, upon or as a result of the death of a debtor and

(a) the property or the source of the property was a life insurance policy or a plan within the meaning of the Income Tax Savings Plans Act;

(b) the property or the source of the property was exempt immediately before the deceased person's death; and

(c) the property received is not income of the deceased debtor,

the property, unless intermingled with other property or funds, including money and a deposit account into which it is paid, remains exempt in enforcement proceedings against that person for a period of 90 days from receipt of the property.

(7) Notwithstanding subsection (6), the court, on the application of a creditor who has registered a notice of judgment against the person referred to in subsection (6) before the expiry of the 90 day period referred to in that subsection, may order that all or a portion of the property referred to in subsection (6) is not exempt if it will not reasonably be required to provide continuing support for that person and the dependents of the deceased debtor.

(8) Where an application has been made under subsection (7), the person who has received property, including money, as a result of the death of the debtor shall not deal with that property or money until the matter has been determined by the court.

Determination of exemption

138. The exemption of property shall be determined based upon circumstances existing

(a) where personal property has been seized, at the time of the seizure;

(b) where there is an enforcement against land under Part VII, at the time the notice of intention to sell that land is served on the debtor; or

(c) in all other cases, at the time the issue of exemption is to be determined.

Income exemption

139. (1) A debtor is entitled to receive the benefit of his or her net income in an amount not to exceed the income exemption amount determined under this Part and reflected in an income exemption certificate issued under this Part.

(2) A debtor's income exemption amount shall be calculated by the sheriff for a period of one month in accordance with the provisions of this Part and the regulations.

(3) The sheriff shall use only the information provided in accordance with Part IV to

(a) calculate the income exemption of a debtor;

(b) issue, repeal or vary an income exemption certificate;

(c) issue, repeal or vary an instalment order; or

(d) make another determination under this Part.

Income exemption certificate

140. (1) Upon the request of the debtor or a creditor the sheriff shall, in the required form, issue or vary an income exemption certificate stating the income exemption amount to which the debtor is entitled for a month.

(2) The court, on the application of the debtor or a creditor, may vary an income exemption certificate based on information that the court may require.

Income exemption limits

141. (1) For the purpose of this Part, the income exemption shall be determined in accordance with the regulations.

(2) Notwithstanding subsection 140(1), the sheriff may vary an income exemption certificate only in accordance with this Act.

Adjustment of income exemption amount

142. (1) Where a dependent of the debtor has an independent source of income or support, the sheriff upon the request of a creditor, may reduce or eliminate the debtor's income exemption amount for a month.

(2) Where a debtor's income varies substantially between months because the debtor receives payment at intervals in excess of one month or at irregular intervals or in irregular amounts,

(a) the sheriff at the request of the debtor or a creditor may

(i) increase or decrease the income exemption for a particular month, or

(ii) set the debtor's net income based on the anticipated average monthly net income

so that the debtor's total income exemption over the course of enforcement proceedings shall approximate what it would have been if his or her income had been uniformly distributed over the relevant months to which the payments reasonably relate;

(b) for the purpose of paragraph (a), payments from a retirement fund shall be considered to relate to a period of not more than one month; and

(c) the total amount of the debtor's estimated income exemption amounts shall not exceed the total of the actual income exemption amounts he or she is entitled to claim based on the amount of net income actually received.

(3) Where a debtor is subject to an order, or an agreement enforceable as an order for the support of a person, that is enforceable in the province

(a) the debtor's income exemption amount for a month shall be calculated as if the person were not a dependent for that purpose;

(b) the amount ordered to be paid for the support of the person shall be added to the income exemption amount; and

(c) a creditor may apply with leave to the court having jurisdiction with respect to the order for support or for a variation in the order for support.

(4) For the purpose of this section, "dependent" means with respect to a debtor

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

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

(c) a person who is 16 years of age or more 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.

Extension of income exemption

143. (1) Where an income exemption certificate under this Part is in effect and a debtor receives property or money

(a) from a retirement fund, other than property or money which represents the payment or distribution of all of or the balance of the property in the retirement fund;

(b) as income other than from a retirement fund; or

(c) under section 144,

unless intermingled with funds or property, other than funds or property referred to in this subsection, the property or the money and a deposit account into which it is paid are exempt.

(2) Notwithstanding subsection (1), property, money or a deposit account referred to in subsection (1) may be subject to enforcement proceedings as provided in subsection 147(5).

(3) For the purpose of subsection (1), the debtor

(a) may claim the exemption with respect to only one deposit account which shall be referred to as the "income account";

(b) shall advise the sheriff which deposit account is the income account; and

(c) shall provide the information with respect to the income account that the sheriff reasonably requires.

Claim procedure

144. (1) Where a debtor

(a) claims that a portion of a distributable fund under Part XI constitutes income;

(b) claims that he or she has not received the income exemption amount for the month taking into consideration net income received by the debtor personally; and

(c) if an income exemption certificate has not been issued, completes and delivers to the sheriff a financial questionnaire in accordance with Part IV,

the sheriff, if the claim is accepted, shall

(d) issue an income exemption certificate if one has not been issued;

(e) calculate the amount by which the income exemption amount for the month exceeds the amount of net income that the debtor actually received during the month;

(f) pay the debtor the amount calculated in accordance with paragraph (e); and

(g) distribute the balance of the distributable fund in accordance with this Part and Part XI.

(2) The debtor may request that the sheriff treat a claim with respect to a payment from a specified income source as a continuing claim for the purpose of subsection (1).

(3) Where a portion of a distributable fund under Part XI constitutes money or payments to which paragraph 134(b) or (c) would apply if received by the debtor, the sheriff shall pay an amount not exceeding that portion as directed by the debtor to acquire or contribute to a pension plan or retirement fund owned by the debtor.

Employment earnings protected

145. Except as provided in this Part, employment earnings are exempt from enforcement proceedings.

Instalment order

146. (1) Where an income exemption certificate has been issued under section 140, a creditor or a debtor may request that the sheriff issue an instalment order in the required form stating the amount that the debtor is required to pay the sheriff at those times specified in the order.

(2) Upon receiving a request under subsection (1) the sheriff shall issue an instalment order and the debtor shall pay his or her surplus income for a month to the sheriff.

(3) An instalment order may relate only to surplus income that has not been received by the debtor.

(4) The total of the amounts ordered to be paid under an instalment order in a month shall not exceed

(a) the anticipated or actual surplus income of the debtor in that month;

minus

(b) income for the month which has or is expected to be received directly by the sheriff as a result of other enforcement proceedings.

(5) An instalment order may require the debtor to pay the sheriff

(a) a stated amount;

(b) net income in excess of the amount stated in the order;

(c) an amount from an identified income source; or

(d) a combination of the above.

(6) An instalment order that requires a debtor to pay amounts to the sheriff shall be served on the debtor.

(7) The sheriff may vary or repeal an instalment order upon the written request of the debtor or a creditor.

(8) A notice of the refusal to issue an instalment order, or the issuance, repeal or variance of an instalment order shall be served on the debtor and all creditors with related notices of judgment.

(9) Within 15 days of delivery of the notice referred to in subsection (8), upon the application of a creditor or the debtor, the court may confirm, issue, repeal or vary that instalment order in accordance with the information and proof that the court requires, and the sheriff may not further vary or repeal that order under subsection (7).

(10) A creditor may apply to the court for the confirmation of an instalment order issued or varied by the sheriff.

(11) An order for periodic payments shall not be issued under subsection 11(4) of the Small Claims Act where an instalment order issued in accordance with this section is in effect.

(12) Where an order for periodic payments is made under subsection 11(4) of the Small Claims Act

(a) money received under the order shall be considered money received by the sheriff as a result of enforcement proceedings under this Act upon the instructions of the small claims creditor;

(b) where there are only small claims creditors, the money referred to in paragraph (a) may be distributed by the Provincial Court in accordance with the provisions of Part XI;

(c) the sheriff shall not issue an instalment order under this section;

(d) notwithstanding paragraph (c), a creditor who is not a small claims creditor may apply to the court for an instalment order and the court may order that an instalment order be issued in accordance with this section; and

(e) where an instalment order is issued by the court under paragraph (d), the order for periodic payments shall cease to be in effect.

(13) In subsection (12), "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.

Default

147. (1) Where the debtor defaults in making a payment required under subsection 146(2) a notice shall be served on the debtor giving the debtor 15 days to serve on the sheriff a sworn or affirmed statement showing just cause for the default.

(2) If the statement required by subsection (1) is not served on the sheriff within 15 days, it shall be considered that the default was without just cause and the sheriff shall deliver notice of the default without just cause to the debtor and all creditors with related notices of judgment within 30 days of the default.

(3) If the statement required by subsection (1) is served within 15 days, the sheriff shall

(a) decide whether the default was with just cause based on the served statement and additional information provided in accordance with Part IV; and

(b) serve notice of the default and the decision as to just cause to the debtor and all creditors with related notices of judgment within 30 days of the default.

(4) The debtor or a creditor may within 15 days of the service of the decision of the sheriff, apply to the court for a determination of the issue of just cause based on the information and proof that the court requires.

(5) Where the court or the sheriff determines that the default was without just cause and the period for an application under subsection (4) has expired or the application has been discontinued or dismissed, a creditor may

(a) instruct the sheriff to issue a garnishee order with respect to employment earnings under Part VIII;

(b) to the extent of the default, instruct the sheriff to issue a garnishee order with respect to an income account under section 143; and

(c) to the extent of the default, instruct the sheriff to seize a retirement fund other than a retirement fund that is exempt under the provisions of another Act.

(6) Where

(a) an instalment order is confirmed, issued or varied by the court under subsection 146(9) or (10); and

(b) the debtor defaults in making a payment required by the instalment order,

the instalment order shall be enforceable as an order of the court and a creditor may apply to the court under the Rules of the Supreme Court, 1986 for a contempt order.

Stay of enforcement

148. (1) The debtor or a creditor may apply to the court for, and the court may order, a stay of enforcement with respect to exigible property of the debtor or a portion of it where it would be just and equitable to do so and upon terms and conditions that the court considers appropriate.

(2) In determining whether it is just or equitable to grant the stay of enforcement, the court shall consider the interests of the creditors as a whole and the interest of the debtor including,

(a) whether the stay would clearly be in the best interests of the creditors as a whole;

(b) whether the property is an income source or a potential income source that is or would produce net income protected by a provision of this Part; and

(c) whether an instalment order has been issued and the terms of that instalment order.

(3) A creditor or debtor may request the repeal or variance of a stay of enforcement based on new information or a change in circumstances including an increase in the total amount of enforcement debts on related notices of judgment.

Corporations and partnerships

149. (1) Where the debtor is not a natural person, the court may grant a stay of enforcement upon the application of the debtor or a creditor where it is considered

(a) just and equitable in the circumstances; and

(b) to be in the best interests of the creditors as a whole.

(2) The court may grant a stay of enforcement under subsection (1) upon terms and conditions that it considers appropriate and may order that the debtor make payments to the sheriff.

(3) The court may vary or repeal a stay of enforcement granted under subsection (1) upon the application of the debtor or a creditor.

PART XI
DISTRIBUTIONS

Applies to all distributions

150. (1) All money that

(a) is realized through enforcement proceedings; or

(b) is otherwise received by the sheriff as a result of the existence of an enforcement debt,

shall be dealt with in accordance with this Part.

(2) Where property that is bound by a notice of judgment is sold in proceedings to enforce a security interest, lien, charge or encumbrance that has priority over the notice of judgment,

(a) if the property is sold by the sheriff, this Part applies to any portion of the proceeds that exceeds the amount that is necessary to discharge the security interest or encumbrance; and

(b) if the property is sold by a person other than the sheriff, that person shall pay to the sheriff any portion of the proceeds that exceeds the amount necessary to discharge the security interest or encumbrance.

(3) This Part shall not be construed so that it prejudices a right to money that is based on an interest, including a security interest, lien, charge or an encumbrance,

(a) in the money; or

(b) in the property from which the money is derived,

where that interest has priority over the relevant notices of judgment.

Distributable fund

151. (1) Money to which this Part applies constitutes a distributable fund when the money is received by the sheriff.

(2) Notwithstanding subsection (1),

(a) where this Act requires that the distributable fund not be distributed before a certain period of time elapses or a certain event occurs, that fund shall not be distributed until the period elapses or the event occurs;

(b) money payable in accordance with section 152 does not constitute or form part of a distributable fund;

(c) the sheriff shall be considered to have received money when money to which this Part applies is received by a person retained as provided in section 6;

(d) where the sheriff is appointed as a receiver under Part IX, the sheriff is considered not to have received money to which this Part applies until it is determined by the sheriff that the money is not necessary to meet his or her fees and expenses as receiver; and

(e) money received by the sheriff as a result of an application by a creditor under paragraph 125(1)(b) shall be distributed under this Part as if it had been received when the garnishee should have paid the amount to the sheriff in accordance with Part VIII.

Money derived from exempted property

152. Where the sheriff receives money that is exempt, or that represents the proceeds of exempt property, the money constitutes a distributable fund, subject to the sheriff paying the debtor, to the extent that the amount of that money permits, an amount that is required under subsection 133(4) and section 144.

Eligible claims

153. (1) A creditor who is a creditor at the time a distributable fund is constituted and no other person has an eligible claim to that distributable fund.

(2) The amount of a creditor's eligible claim shall be the amount outstanding on the judgment at the time the distributable fund was constituted.

(3) For the purpose of calculating the amount of an eligible claim, the sheriff shall consider the amount outstanding on a notice of judgment to be the lesser of

(a) the amount of the enforcement debt; or

(b) if known by the sheriff, the actual amount outstanding on the judgment.

(4) Notwithstanding section 40, where a distributable fund results from instructions to sell property or to issue a garnishee order with respect to a current obligation under Part VIII, the instructing creditor shall have an eligible claim with respect to the distribution of that distributable fund.

Distribution of fund

154. (1) The sheriff shall apply the distributable fund in the following order of priority:

(a) first, if the fund is comprised of the proceeds of a sale of a crop, to a charge for harvesting or marketing expenses to which the sheriff or creditor is entitled under paragraph 85(f);

(b) second, to other fees and expenses of the sheriff, earned or incurred in connection with the enforcement measures that have produced the fund;

(c) third, to other expenses incurred by the instructing creditor in connection with the enforcement measures that have produced the fund and other costs that the court has directed to be paid out of the fund, including those costs under subsection 164(4);

(d) fourth, to eligible costs as provided in subsection 165(3), on a proportional basis;

(e) fifth, to eligible maintenance claims, on a proportional basis;

(f) sixth, to eligible wage claims, on a proportional basis;

(g) seventh, to eligible claims that by virtue of another law in force in the province are entitled to priority over the claims of creditors generally;

(h) eighth, to the balance of the instructing creditor's eligible claim to an amount not exceeding the greater of

(i) $2,250, or

(ii) 15% of the balance of the fund remaining after the payments referred to in paragraphs (a) to (g) are made;

(i) ninth, to all other eligible claims, including an unpaid balance of the instructing creditor's eligible claim, on a proportional basis; and

(j) tenth, to the debtor or another person who is entitled to the money.

(2) Where a garnishee order, instalment order, or other enforcement proceedings result in the sheriff receiving distributable funds at different times, the total amount payable to the instructing creditor under paragraphs (1)(h) and (i) is limited to the amount that would have been payable under those paragraphs if the individual funds had been a single distributable fund.

Surplus

155. Where a debtor is entitled to be paid an amount in accordance with paragraph 154(1)(j) and there are creditors who are not satisfied,

(a) the sheriff shall not pay the money to the debtor;

(b) the money retained shall be considered to be an amount received by the sheriff at that time as a result of the existence of an enforcement debt with respect to the debtor; and

(c) the money shall be distributed in accordance with this Part.

Statement of proposed distribution

156. (1) When a distributable fund is constituted,

(a) there shall be served on the debtor and on each of the creditors who have related notices of judgment at that time, a statement setting out the proposed distribution;

(b) if a person on whom a statement was served under paragraph (a) wishes to object to the proposed distribution of the distributable fund, that person shall, within 15 days from the day of being served with that statement, serve on the sheriff a written notice of the objection to the distribution;

(c) if an objection has not been made in accordance with paragraph (b), or an objection that has been made is withdrawn,

(i) the statement of proposed distribution is final and conclusive as between all persons on whom the statement was served and the sheriff, and

(ii) the sheriff shall distribute the fund in accordance with the statement of proposed distribution;

(d) a person who has objected under paragraph (b) is considered to have withdrawn the objection unless, within 15 days from the day of serving the notice of objection on the sheriff, that person applies to the court for an order determining the matter in respect of which the objection was made and that application shall be served on the sheriff in accordance with the Rules of the Supreme Court, 1986;

(e) where an objection has been made under paragraph (b), the sheriff shall distribute in accordance with the proposed distribution as much of the fund as shall not prejudice the effect of the objection if the objection is upheld by the court;

(f) where the amount outstanding on a judgment is less than the amount of the eligible claim shown in a proposed statement of distribution, a creditor served with a statement of proposed distribution under paragraph (a) shall, within 15 days of being served with that statement, advise the sheriff in writing of the amount outstanding on the judgment; and

(g) notwithstanding anything in this subsection, the sheriff may revise the proposed statement of distribution in order to correct

(i) the amount of an eligible claim where a creditor has advised that the amount outstanding on a judgment is less than the eligible claim as shown in the proposed statement of distribution, or

(ii) a clear or obvious error in the proposed statement of distribution,

and distribute the fund as otherwise provided.

(2) An objection made under paragraph (b) is not effective and shall be disregarded if

(a) a reason for the objection is not set out in the objection; and

(b) in the opinion of the sheriff the objection is frivolous or intended merely to delay or prolong enforcement proceedings,

and subparagraphs (1)(c)(i) and (ii) shall apply.

(3) Notwithstanding subsection (1), where the amount of the distributable fund exceeds the amount required to make all payments required by paragraphs 154(1)(a) to (i), the sheriff shall immediately distribute the fund.

(4) Notwithstanding subsection (1), where the sheriff has distributed a distributable fund and subsection (1) was complied with, the sheriff shall, without serving further statements of distribution, immediately distribute subsequent distributable funds with respect to the same debtor in the same manner unless

(a) expenses claimed by the instructing creditor in accordance with paragraph 154(1)(c)

(i) are in excess of the amount prescribed by regulation, or

(ii) if less than the amount prescribed by regulation, have not been approved by the sheriff as being reasonable and necessary to produce the distributable fund;

(b) there is a change with respect to creditors with eligible claims; or

(c) the sheriff is advised in writing of an objection to a distribution in the same manner, other than an objection rejected by the court with respect to a previous distribution.

(5) Upon a distribution of a distributable fund

(a) a statement of distribution shall accompany a payment; and

(b) there shall be served a statement of distribution on all other persons who received or, where subsection (2) applies, would have received a proposed statement of distribution under paragraph (1)(a).

Overpayment

157. (1) Where a creditor receives a payment by way of distribution and the distribution was calculated based on an eligible claim in an amount greater than the amount outstanding on the judgment at the time the distributable fund was constituted, the creditor shall

(a) immediately notify the sheriff; and

(b) pay to the sheriff the amount by which the payment received exceeds the payment that should have been received based on the amount outstanding on the judgment.

(2) Where a creditor receives a payment by way of distribution and the payment exceeds the amount outstanding on the judgment at the time the payment is received, the creditor shall

(a) immediately notify the sheriff; and

(b) pay an amount equal to that excess to the sheriff.

(3) Where the sheriff receives an amount in accordance with subsection (1) or (2), he or she shall recalculate the distribution and distribute the additional money as if the payment were part of the original distribution.

(4) A creditor who does not comply with subsection (1) or (2) shall compensate the debtor and the creditors for a pecuniary loss suffered by them as a result of the non-compliance.

(5) A creditor who does not comply with subsection (4) is guilty of an offence.

Claimant is a debtor

158. Where a debtor is entitled to be paid an amount by way of a distribution in accordance with this Part and a creditor of that debtor notifies the sheriff in writing to retain the money,

(a) the sheriff shall not pay the money to the debtor;

(b) the money retained shall be considered to be an amount received by the sheriff at that time as a result of the existence of an enforcement debt with respect to that debtor; and

(c) the money shall be distributed in accordance with this Part.

PART XII
DISPUTES

Notice of objection

159. (1) Except as otherwise provided in this Act, a debtor who wishes to object to enforcement proceedings, including a claim that property in whole or in part is exempt shall, within 15 days from the day that the enforcement documents are served upon the debtor, deliver a notice of objection to the sheriff.

(2) A notice of objection is not effective and shall be disregarded if

(a) a reason for the objection, including a claim that the property is in whole or in part exempt, is not set out in the notice of objection;

(b) the notice of objection is not served on the sheriff within the period provided for under subsection (1); or

(c) in the opinion of the sheriff the notice of objection is frivolous or intended merely to delay or prolong enforcement proceedings.

(3) This section shall not affect the right of a debtor to apply for a stay of enforcement under section 148.

(4) For the purpose of this Act, a notice of objection is a notice in the required form by which the debtor may indicate an objection to enforcement proceedings, including a claim that property is in whole or in part exempt.

Application to court

160. (1) Notwithstanding section 106 and subsection 159(1), the debtor may apply to the court for an order that property is exempt or that money received by the sheriff is proceeds from enforcement proceedings with respect to exempt property

(a) before the property is sold; or

(b) before the money is distributed by the sheriff.

(2) Where a debtor applies to the court under subsection (1), subsection 159(1) shall apply as if the debtor had delivered a notice of objection to the sheriff.

(3) Where a creditor disputes an application under subsection (1), section 164 shall apply as if the application by the debtor was under subsection 159(1) with respect to a notice of objection delivered to the sheriff.

Notice of third party interest

161. (1) Where a person has reasonable grounds for believing that another person has an interest in property that is the subject of enforcement proceedings, the person with that belief shall serve a completed notice of third party interest on the sheriff.

(2) Where a notice of third party interest is served on the sheriff under subsection (1), a notice of claim in the required form shall be served within 15 days of its receipt by the sheriff on the debtor, all creditors and the person named as having an interest where,

(a) the sheriff has reasonable grounds for believing that the person with the third party interest

(i) is the spouse of the debtor within the meaning of the Family Law Act, or

(ii) may have an interest in the property subject to the enforcement proceedings; or

(b) the person with the third party interest is identified in a notice of third party interest which, in the opinion of the sheriff, was not frivolous or intended merely to delay or prolong enforcement proceedings.

(3) For the purpose of this Act, a notice of third party interest is a notice in the required form which indicates that a person other than the debtor may have an interest in or with respect to property.

Notice of claim

162. (1) A person who claims an interest in property that is or is intended to be the subject of enforcement proceedings may serve a notice of claim on the sheriff in the required form.

(2) A notice of claim is not effective and shall be disregarded if

(a) in the opinion of the sheriff, the claim is frivolous or intended merely to delay or prolong the enforcement proceedings;

(b) the person's interest or possible interest in the property is subject to the same enforcement proceedings;

(c) in the case of a claim by a person on whom a notice of claim was served under this Act, the completed notice of claim is not returned to the sheriff within 15 days of the service of the notice of claim; or

(d) in another case, the notice of claim is not served on the sheriff before the property is sold.

(3) A notice of claim is a notice in the required form by which a person other than the debtor claims an interest in or with respect to property.

Procedure

163. (1) Where a notice of objection or a notice of claim is not effective,

(a) the sheriff shall serve a notification of that decision to the third party and the debtor;

(b) the third party or the debtor may apply to the court within 15 days of the service of the decision for a determination of the issue;

(c) notice of an application under paragraph (b) shall be served on the creditors with related notices of judgment at the time the notice was to be given; and

(d) the property shall not be sold or money received as a result of enforcement proceedings distributed until

(i) the period for an application to the court under paragraph (b) has elapsed with no application being made,

(ii) the application is discontinued or dismissed, or

(iii) the court otherwise orders.

(2) Where an effective notice of objection or notice of claim is received,

(a) a copy of the notice of objection or notice of claim shall be served on the creditors with related notices of judgment at the time the notice was given;

(b) a creditor may apply to the court under section 165 to dispute an objection or a claim within 15 days after the service of the notice;

(c) the sheriff shall only

(i) release property from seizure,

(ii) terminate the attachment of an obligation,

(iii) terminate the procedure to sell land, or

(iv) distribute money received as a result of enforcement proceedings to the person,

when

(v) the period for an application to the court by a creditor has elapsed with no application being made,

(vi) the application is dismissed, or

(vii) the court otherwise orders; and

(d) notwithstanding paragraph (c), if a notice of objection or a notice of claim admits that the debtor has an exigible interest in the property, the enforcement proceedings may continue with respect to the debtor's admitted interest in the property, including the sale of seized property if the sheriff is instructed to do so by the instructing creditor.

(3) Where the instructing creditor does not oppose an application under subsection (1) or does not apply under subsection (2), the court may order that a creditor be considered to be the instructing creditor with respect to the enforcement proceedings, including the proceedings before the court.

(4) Upon receipt of an effective notice of objection or notice of claim under subsection (2), the sheriff may apply to the court for direction.

Objection or disputed claim

164. (1) Where

(a) a debtor applies to the court under section 160;

(b) a debtor or other person applies to the court under paragraph 163(1)(b);

(c) a person applies to the court under subsection 165(2); or

(d) a creditor applies to the court under paragraph 163(2)(b) or subsection 166(2),

the court may determine the issue in accordance with Rule 13 of the Rules of the Supreme Court, 1986.

(2) An instructing creditor who

(a) opposes an application under section 160 or subsection 163(1) or 165(2); or

(b) applies to the court under subsections 163(2) or 166(2),

may deliver a notice of the application to all creditors with related notices of judgment requesting proportional contribution to the cost of the dispute or the application.

(3) Where an instructing creditor requests contribution under subsection (2), for the purpose of a distribution under Part XI, the eligible costs of those creditors who agree to contribute proportionally to the cost of the application, to the extent that they are not entitled to a higher priority, shall have priority in accordance with paragraph 154(1)(d) with respect to a portion of a distributable fund that results from or is preserved by the proceedings.

(4) The court may direct that where the costs of proceedings referred to in subsection (1) are not paid by an adverse party, those costs shall be paid out of a distributable fund that results from or is preserved by the proceedings.

Claims made outside prescribed period

165. (1) Where a person does not serve a notice of claim on the sheriff as required under paragraph 162(2)(c),

(a) a claim or cause of action that the person might otherwise have had in respect of the seizure, attachment, detention or sale of the property is extinguished; and

(b) a person to whom the property in question is sold obtains title free of an interest that the person who failed to serve the notice of claim had in the property at the time of the sale.

(2) Notwithstanding subsection (1), a person may assert a claim

(a) to the property by making an application to the court before the property is sold; or

(b) to the proceeds of sale of the property or money received as a result of enforcement proceedings with respect to an obligation, by making an application to the court before the proceeds or money are distributed.

(3) A person who does not assert a claim to the proceeds of sale of property or money received as a result of enforcement proceedings with respect to an obligation before the proceeds are distributed may not trace or otherwise follow the proceeds.

Non-application to registered interests

166. (1) Sections 162 to 165 shall not apply to interests in property which are registered in accordance with another Act.

(2) Where a creditor disputes the validity of the registration or priority of an interest referred to in subsection (1), the creditor may apply with leave of the court for a determination of the issue.

(3) For the purpose of section 165, a creditor who applies under subsection (2) shall be considered to be an instructing creditor.

Non-application of Part

167. This Part shall not apply to

(a) enforcement proceedings conducted in accordance with an order of the court under Part IX, except to the extent ordered by the court;

(b) a person served with a demand in accordance with section 74; and

(c) garnishment of a joint entitlement under section 122.

PART XIII
IMPEACHABLE TRANSACTIONS

Definitions

168. (1) In this Part

(a) "claimant" has the same meaning as in Part II; and

(b) "transfer" includes a gift, conveyance, assignment, delivery over or payment.

(2) In sections 171 to 173, creditor includes

(a) a surety, and the endorser of a promissory note or bill of exchange, who would, on payment by him or her of the debt, promissory note or bill of exchange in respect of which the suretyship was entered into or endorsement was given, become a creditor of the person giving the preference; and

(b) a beneficiary or other person to whom liability is equitable only.

(3) In sections 179 and 180, "property" includes the proceeds of property referred to in section 178.

Exception

169. (1) Notwithstanding section 3, a person may initiate proceedings available to enforce rights under a law of the province, whether by statute or common law, for the impeachment of transactions, similar in nature to those dealt with under the provisions of this Part.

(2) Notwithstanding subsection (1), the benefits or proceeds of a proceeding referred to in subsection (1) shall be distributed in accordance with the judgment of the court and in a manner consistent with this Act.

Fraudulent transfers

170. A transfer of property made

(a) by a person at a time when he or she is insolvent or is unable to pay his or her debts in full or knows that he or she is about to become insolvent; and

(b) with intent to defeat, hinder, delay or prejudice one or more of his or her creditors,

is void as against a creditor injured, delayed, or postponed.

Intent to prefer

171. A transfer of property made

(a) by a person at a time when he or she is insolvent or is unable to pay his or her debts in full or knows that he or she is about to become insolvent; and

(b) to or for a creditor with intent to give that creditor preference over one or more other creditors,

is void against the creditor injured, delayed, prejudiced or postponed.

Preferential effect

172. A transfer of property made

(a) by a person at a time when he or she is insolvent or is unable to pay his or her debts in full or knows that he or she is about to become insolvent; and

(b) to or for a creditor and having the effect of giving that creditor a preference over one or more other creditors,

is, with respect to an application or proceeding to impeach or set aside the transaction and brought within one year of that transfer, void as against the creditor injured, delayed, prejudiced or postponed.

What constitutes transaction

173. (1) A transaction shall be considered to be one that has the effect of giving a creditor a preference over other creditors, within the meaning of section 172, if by the transaction a creditor is given or is placed in a position to realize payment, satisfaction or security for the debtor's indebtedness to him or her or a portion of it greater proportionately than could be realized for the unsecured creditors of the debtor generally or for the unsecured portion of his or her liabilities out of the exigible property of the debtor that is left available.

(2) Independently of the intent with which the transaction was entered into or of whether it was entered into voluntarily or under pressure, the preferential effect or result of the impeached transaction governs, and pressure by a creditor or want of notice to the creditor alleged to have been preferred respecting the debtor's circumstances, inability or knowledge or effect of the transaction shall not protect the transaction.

Transaction in good faith

174. Sections 170 to 172 shall not apply to a

(a) sale or payment made in good faith in the ordinary course of trade or calling to innocent purchasers or parties; or

(b) payment of money to a creditor or a transfer in good faith of other property that is made in consideration of a present actual good faith sale or delivery of property or of a present actual good faith payment in money or by way of security for a present advance in good faith of money,

if the money paid or the property sold or delivered is of a fair and reasonable value.

Payment to creditor

175. Where there is a valid sale of property and the consideration or a part of it is paid or transferred by the purchaser to the vendor's creditor under circumstances that would make the payment or transfer void if it were made by the debtor personally and directly, the payment or transfer, even though valid respecting the purchaser, is void respecting the creditor to whom it is made.

Restoration of security to creditor

176. Notwithstanding sections 170 to 172, where a payment that is void under this Act has been made and valuable security has been given in consideration of the payment, the creditor is entitled to have the security restored or its value made good to him or her before or as a condition of the return of the payment.

Saving of payment to creditor

177. This Part shall not

(a) affect a payment in money to a creditor when the creditor by reason or on account of the payment has lost or been deprived of or has in good faith given up a valid security that he or she held for the payment of that debt, unless the value of the security is restored to the creditor;

(b) affect the substitution in good faith of one security for another security for the same debt so far as the debtor's estate is not as a result lessened in value to the creditors; or

(c) invalidate a security given to a creditor for the pre-existing debt when, because of the giving of the security, an advance is made in money to the debtor by the creditor in the honest belief that the advance will enable the debtor to continue his or her trade or business and pay his or her debt in full.

Proceeds of property

178. (1) Where a transfer of property to a person is void as provided in this Part, and that person has sold or disposed of, realized or collected the property or a part of it, the money or the proceeds or the amount of those, whether further disposed of or not, may be the subject of an order made under section 179.

(2) Subsection (1) does not apply to a person who buys for value, in good faith.

Declaration from court

179. (1) The court on the application of

(a) a creditor; or

(b) a claimant who would be eligible to apply for an attachment order in accordance with subsection 27(1),

may, for the benefit of creditors generally, or for the benefit of those creditors who have been injured, delayed, prejudiced or postponed,

(c) declare void a transfer of property that is a fraud on creditors, in violation of this Part;

(d) declare that the proceeds of property referred to in section 179 are property of the debtor for the purpose of enforcement proceedings under this Act; and

(e) make an additional order that the court considers necessary or appropriate to facilitate realization or recovery of the property.

(2) If, in an application under subsection (1), an amendment is made the amendment relates back to the commencement of the application for the purpose of the time limited by section 172.

(3) Where

(a) the court makes an order in accordance with subsection (1) upon an application by a claimant;

(b) the claimant has not obtained a money judgment; and

(c) enforcement proceedings are commenced or continued with respect to the property that is the subject of that order,

the court may order

(d) that the money realized through enforcement proceedings against the property not be distributed until the claimant obtains a money judgment or until the court otherwise orders; and

(e) where the claimant registers a notice of judgment, that the claimant have the status of an instructing creditor for the purpose of the distribution of the proceeds.

Order for preservation

180. (1) Where an application is made in accordance with subsection 179(1), the court on the application of the creditor or the claimant may make an order for the preservation of the property that is the subject of the application.

(2) For the purpose of subsection (1), Part II excepting sections 33, 34 and 35 shall apply as if the order for preservation referred to in subsection (1) were an attachment order, with all changes necessary as the context requires.

PART XIV
REGULATIONS

Regulations

181. (1) The Lieutenant-Governor in Council may make regulations

(a) defining, for the purpose of this Act, a term that is not otherwise defined by this Act;

(b) respecting the registry and its operations under this Act;

(c) respecting the posting of a bond for the purpose of supporting security or an undertaking required under this Act;

(d) respecting the description of property that is to be included in notices of judgment and attachment orders and prescribing the kinds of goods that may be described wholly or in part by serial number and the requirements of a description by serial number;

(e) respecting the identification and determination of debtors;

(f) governing documents, reports, notices, statements of status, questionnaires and who shall issue or submit these records and returns under this Act;

(g) respecting the records to be entered, maintained, amended and deleted for the purpose of this Act;

(h) prescribing property that is exempt and governing the value of property that may be exempt;

(i) governing the selection of exempt property by debtors and their representatives;

(j) respecting the determination of persons who qualify as dependents for the purpose of this Act;

(k) respecting reports made under this Act;

(l) respecting the seizure of property, including the removal, handling, storage and release of seized property;

(m) respecting the qualifications for and appointment of receivers;

(n) respecting property and income exemptions from enforcement proceedings;

(o) respecting the calculation of net pay including allowable deductions;

(p) for the purpose of subsection 92(2), governing the extent to which an intermediary may enforce a security interest or lien;

(q) respecting distributable funds, expenses, costs, fees and other charges deductible from those funds;

(r) determining the amount of the enforcement debt with respect to a notice of judgment;

(s) respecting garnishment under this Act;

(t) respecting notices of seizure under this Act;

(u) respecting the seizure of securities;

(v) respecting the maintenance of records on questionnaires, notices of appointment or orders, transcripts and respecting the maintenance and disclosure of information received by the sheriff;

(w) respecting compensation for garnishees;

(x) respecting the service of documents under this Act and the determination of when documents are considered given for the purpose of related notices of judgment;

(y) respecting examinations under section 66;

(z) respecting the transition from the law existing immediately before the commencement of this Act to this Act;

(aa) defining a word for the purpose of the Act or the regulations which is not defined in the Act; and

(bb) generally to give effect to the purpose of this Act.

(2) Regulations made under paragraph (1)(z) may be made with retroactive effect to the date of the coming into force of this Act.

Forms

182. (1) Where this Act states that a notice or document shall be in the required form, the sheriff shall establish that form and the contents or information required on that form or document.

(2) Where this Act states that a document is to contain certain information or statements, the regulations may require the documents to contain information or statements that are additional to those required by this Act.

Fees

183. The minister may establish fees that shall be paid for registrations, filing of documents, searches, commissions, services, documents, copies, orders issued, enforcement procedures and other things necessary for the purpose of this Act.

Judicature Act and Rules to apply

184. The Judicature Act and the Rules of the Supreme Court, 1986 shall apply to proceedings under this Act where those proceedings are not governed by a provision of this Act.

PART XV
PENALTIES, REPEAL, AMENDMENTS AND MISCELLANEOUS

Penalty

185. A person who is guilty of an offence under this Act is liable on summary conviction

(a) for a first offence to a fine of not less than $100 nor more than $500 or to imprisonment for a term of not more than 30 days or to both a fine and imprisonment; and

(b) for a second or subsequent offence to a fine of not less than $500 nor more than $2,000 or to imprisonment for a term of not less than 60 days nor more than 6 months or to both a fine and imprisonment.

Transitional

186. A reference in an Act or document to

(a) a judgment creditor, is considered to be a reference to a creditor;

(b) a judgment debtor, is considered to be a reference to a debtor;

(c) an execution or execution proceedings is considered to be a reference to enforcement proceedings under this Act; and

(d) to an attachment order, is considered to be a reference to an attachment order or attachment proceedings under this Act.

Transitional

187. (1) A distress warrant under the Small Claims Act that is filed with the office of the sheriff, or an execution order that is issued under the Rules of the Supreme Court, 1986, immediately before the commencement of this Act, shall be considered to be a money judgment under this Act, but that money judgment ceases to be in force 12 months after the commencement of this Act unless,

(a) the money judgment is registered as a notice of judgment under this Act before the expiry of those 12 months; and

(b) where the execution order or distress warrant was received by the sheriff under the Rules of the Supreme Court, 1986, or the Small Claims Act, before the commencement of this Act, it is reregistered as a notice of judgment under this Act during those 12 months.

(2) An attachment order that was issued under the Rules of the Supreme Court, 1986 before the coming into force of this Act shall, on the commencement of this Act, be considered to have been issued under this Act.

(3) Where, within 13 months immediately following the commencement of this Act,

(a) the validity of enforcement proceedings with respect to a money judgment referred to in subsection (1);

(b) a money judgment referred to in subsection (1) ceases to be in force;

(c) an attachment order referred to in subsection (2) ceases to be in force; and

(d) the handling or disposition of property that was in the custody or control of the sheriff immediately before the commencement of this Act and the disposition of funds relating to that property is in question,

a creditor, debtor or interested person may apply to the court for relief which the court considers appropriate in the circumstances, including the relief of renewing that money judgment or notice of attachment.

RSN1990 cA-19 Amdt.

188. Paragraph 2(e) of the Assignment of Book Debts Act is amended by striking out the words "execution creditors" and substituting the words "creditors as defined in the Judgment Enforcement Act".

RSN1990 cA-20 Rep.

189. The Attachment of Wages Act is repealed.

RSN1990 cB-3 Amdt.

190. Paragraph 2(e) of the Bills of Sales Act is amended by striking out the words "an execution creditor" and substituting the words "a creditor as defined in the Judgment Enforcement Act".

RSN1990 cC-28 Amdt.

191. Paragraph 2(g) of the Conditional Sales Act is amended by striking out the words "an execution creditor" and substituting the words "a creditor as defined in the Judgment Enforcement Act".

RSN1990 cC-36 Amdt.

192. Section 134 of the Corporations Act is repealed.

RSN1990 cJ-2 Amdt.

193. Section 5 of the Judgment Interest Act is amended by adding immediately after subsection (2) the following:

(3) For the purpose of this section, interest shall not be calculated on interest.

RSN1990 cJ-4 Amdt.

194. Sections 135, 136 and 140 of the Judicature Act are repealed.

RSN1990 cL-11 Amdt.

195. Subsection 62(2) of the Legal Aid Act is amended by striking out the word "attachment" and substituting the word " garnishment" and by striking out the words "Attachment of Wages Act" and substituting the words "Judgment Enforcement Act".

SN1995 cL-16.1 Amdt.

196. (1) Subsection 7(1) of the Limitations Act is repealed and the following substituted:

Limitation period 10 years

7. (1) Following the expiration of 10 years after the date on which the right to do so arose, a person shall not bring an action or proceeding

(a) to enforce a judgment of a court in the province for the payment of money or the recovery of personal property;

(b) against the personal representative of a deceased person for a share of the estate;

(c) against a trustee in respect of a fraud or fraudulent breach of trust to which the trustee was party or privy;

(d) against a trustee for the conversion of trust property to the trustee's own use;

(e) to recover trust property or property into which trust property can be traced;

(f) to recover money on account of a wrongful distribution of trust property against the person to whom the property is distributed, or a successor; or

(g) to recover land.

(2) Subsection 18(1) of the Act is repealed and the following substituted:

Enforcement process

18. (1) On the expiration of the limitation period for the enforcement of a judgment, the judgment creditor or his or her successor shall not commence a further action to obtain a judgment based upon that earlier judgement.

(3) Subsection 18(2) of the Act is amended by striking out the word "execution" and substituting the word "enforcement".

RSN1990 cP-3 Amdt.

197. Section 23 of the Partnership Act is repealed.

SN1995 cP-31.1 Amdt.

198. Sections 35 and 36 of the Provincial Offences Act are repealed and the following substituted:

Application of Judgment Enforcement Act

35. The Judgment Enforcement Act shall apply to a fine entered as a judgment in the Trial Division under section 33.

RSN1990 cP-41 Amdt.

199. (1) Section 4 of the Public Officials Garnishee Act is amended by adding immediately before the period the words "in accordance with the Judgment Enforcement Act".

(2) Section 5 of the Act is repealed.

(3) Paragraph 8(a) of the Act is amended by striking out the words "Attachment of Wages Act" and substituting the words "Judgment Enforcement Act".

RSN1990 cS-6 Amdt.

200. Section 28 of the Sale of Goods Act is repealed.

1991 c39 Amdt.

201. (1) Paragraph 2(b) of the Sheriff's Act, 1991 is repealed and the following substituted:

(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;

(2) Paragraph 8(a) of the Act is amended by striking out the comma immediately before the words and the words "writs of attachment".

(3) Paragraph 8(b) of the Act is repealed and the following substituted:

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

(4) Paragraphs 8(e) and (f) of the Act are repealed and the following substituted:

(e) to keep, maintain and use a computer storage and retrieval system in accordance with the Judgment 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.

(5) Paragraph 10(1)(b) of the Act is repealed.

(6) Subsection 12(1) of the Act is amended by striking out the word and comma "commissions,".

(7) Sections 13 to 16 of the Act are repealed.

(8) The Act is amended by adding immediately after section 19 the following:

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.

(9) Section 20 of the Act is amended by adding immediately after paragraph (b) the word "and" and by repealing paragraph (c).

(10) The Act is amended by striking out the words "execution order" wherever they occur and substituting the words "enforcement order".

RSN1990 cS-16 Amdt.

202. (1) Subsection 10(1) of the Small Claims Act is repealed and the following substituted:

Enforcement

10. (1) Judgments and orders of a judge may be enforced under the Judgment Enforcement Act.

(2) Subsection 11(4) of the Act is repealed and the following substituted:

(4) The judge may make an order for periodic payment that he or she thinks appropriate and that payment order shall be considered to be an instalment order issued under subsection 147(2) of the Judgment Enforcement Act.

RSN1990 cS-31 Amdt.

203. Subsection 11(2) of the Support Orders Enforcement Act is amended by adding immediately after paragraph (a) the following:

(a.1) on request, to the sheriff for the purpose of section 18 of the Judgment Enforcement Act;

Review

204. After the expiration of not more than 3 years after the coming into force of this Act, the minister shall refer this Act to a committee for the purpose of undertaking a comprehensive review of the provisions and operation of this Act.

Commencement

205. This Act shall come into force on June 1, 1997.

©Earl G. Tucker, Queen's Printer