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Statutes of Newfoundland 1998


CHAPTER 22

AN ACT TO AMEND THE JUDGMENT
ENFORCEMENT ACT

(Assented to December 15, 1998)

Analysis

1. S.2(1) Amdt.
Interpretation

2. S.3 Amdt.
Application of Act

3. S.11 Amdt.
Application to court

4. S.16(1)(b) R&S
Cause of Action

5. S.23(1)(a) R&S
Enforcement documents

6. S.24(5) Amdt.
Employee protection

7. S.25(a) Amdt.
Definitions

8. S.28(5) R&S
Scope of attachment order

9. S.39(2) Rep.
When notice of judgment
effective

10. S.40 R&S
Money judgment not in
force

11. S.42(1.1) Added
Actions concerning data

12. S.45 Amdt.
Discharge and amendment

13. S.64 R&S
Voluntary questionnaires

14. S.65 R&S
Sheriff questionnaire

15. S.66 Amdt.
Examination

16. S.70(2) R&S
When seizure available

17. S.75(3) R&S
Effecting seizure

18. S.80(2) R&S
Termination of seizure

19. S.81 Amdt.
Sale of property, etc.

20. S.121(1) Amdt.
Employment earnings

21. S.123(2) Amdt.
Deposit accounts

22. S.126 Amdt.
Court appointed remedies

23. S.135 Amdt.
Extension of exemptions

24. S.137 Amdt.
Survival of exemptions

25. S.140 R&S
Income exemption certificate

26. S.141(1) R&S
Income exemption
limits

27. S.142(2)(a) R&S
Adjustment of income
exemption

28. S.143(1)(a) R&S
Extension of income
exemption

29. S.146 Amdt.
Instalment order

30. S.147 Amdt.
Default

31. S.154(1) Amdt.
Distribution of
funds

32. S.157 Amdt.
Overpayment

33. S.161(2) R&S
Notice of third party
interest

34. S.162(2)(d) R&S
Notice of claim

35. S.165 Amdt.
Claims made outside period

36 S.167 R&S
Non-application of
Part

37. 1995 cL-16.1
Amdt.

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


1996 cJ-1.1

1. (1) Paragraph 2(1)(l) of the Judgment Enforcement Act is repealed and the following substituted:

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

(2) Paragraph 2(1)(r) of the Act is repealed and the following substituted:

(r) "enforcement proceedings" means an action, step or measure authorized by this Act to be taken for the purpose of enforcing a money judgment, and includes an order made under subsection 10(2) of the Small Claims Act, but does not include proceedings authorized under Part XIII;

(3) Paragraph 2(1)(bb) of the Act is repealed and the following substituted:

(bb) "judgment" includes an order, decree, certificate, duty or right that may be enforced as or in the same manner as a judgment of the court including a judgment made under the Small Claims Act and the Federal Court Act, but does not include a support order as defined in the Support Orders Enforcement Act except as provided in section 3;

(4) Subsection 2(1) of the Act is amended by adding immediately after paragraph (oo) the following:

(oo.1) "personal property registry" means the personal property registry established under the Personal Property Security Act;

(5) Subsection 2(1) of the Act is amended by adding immediately after paragraph (zz) the following:

(zz.1) "small claims creditor" means a creditor in whose favour there is a notice of judgment with respect to a money judgment made under the Small Claims Act;

2. (1) Subsection 3(2) of the Act is amended by striking out the words "made under that Act".

(2) Subsection 3(3) of the Act is repealed and the following substituted:

(3) Notwithstanding subsection (1), where a support order within the meaning of the Support Orders Enforcement Act is in arrears, the director appointed under that Act may register that support order in accordance with section 38 and that registered support order, to the extent of the arrears, shall be considered to be a notice of judgment to which this Act applies and the director shall be considered a creditor for the purpose of the Act.

3. (1) Subsection 11(1) of the Act is repealed and the following substituted:

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 under this Act, or incidental to, or in substitution for an order made or sought under another Act, give directions with respect to or determine a matter or issue that arises out of enforcement proceedings.

(2) Paragraph 11(2)(i) of the Act is repealed.

(3) Paragraph 11(2)(k) of the Act is repealed and the following substituted:

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

4. Paragraph 16(1)(b) of the Act is repealed and the following substituted:

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

5. Paragraph 23(1)(a) of the Act is repealed and the following substituted:

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

6. Subsection 24(5) of the Act is amended by adding immediately after the word "Act" the words "or by an order of the court".

7. Paragraph 25(a) of the Act is amended by striking out the word "would" and substituting the word "might".

8. Subsection 28(5) of the Act is repealed and the following substituted:

(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 and notices of attachment, unless the court is of the view that a limitation of the amount or value would make the operation of the order unworkable or ineffective.

9. Subsection 39(2) of the Act is repealed.

10. Section 40 of the Act is repealed and the following substituted:

Money judgment not in force

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

(a) if it has been satisfied;

(b) if the period for the enforcement of the judgment has expired in accordance with the Limitations Act, or another Act providing for a limitation period; or

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

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

11. Section 42 of the Act is amended by adding the following immediately after subsection (1):

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

12. (1) Subsection 45(1) of the Act is repealed and the following substituted:

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 paragraph 40(1)(b);

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

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

(d) amend an error in a notice of judgment.

(2) Subsection 45(4) of the Act is amended by adding immediately after the words "notice of judgment be" the words "amended or".

13. Section 64 of the Act is repealed and the following substituted:

Voluntary questionnaires

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

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

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

14. Section 65 of the Act is repealed and the following substituted:

Sheriff questionnaire

65. (1) A creditor may instruct the sheriff to serve a questionnaire on a person who may be required to submit to an examination under section 66 to be completed and returned to the sheriff for the purpose of determining the ability of the debtor to satisfy the claim of the creditor.

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

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

15. (1) Subsection 66(3) of the Act is repealed and the following substituted:

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

(2) Section 66 of the Act is amended by adding immediately after subsection (4) the following:

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

(a) the persons who may be examined;

(b) the time and place of an examination;

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

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

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

16. Subsection 70(2) of the Act is repealed and the following substituted:

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

17. Subsection 75(3) of the Act is repealed and the following substituted:

(3) Where the sheriff is unable to serve the enforcement documents as required by subsection (2), the sheriff shall begin the proceedings provided for under section 80.

18. Subsection 80(2) of the Act is repealed and the following substituted:

(2) Where personal property has been seized and

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

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

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

19. Paragraph 81(i) of the Act is amended by striking out the word "or" at the end of subparagraph (ii), striking out the semicolon at the end of subparagraph (iii) and substituting a comma and the word "or" and by adding immediately after subparagraph (iii) the following:

(iv) if the property is an instrument or a market security;

20. Subsection 121(1) of the Act is amended by striking out the brackets and the figure "(5)".

21. Subsection 123(2) of the Act is amended by adding immediately before the word "account" the word "deposit".

22. Section 126 is amended by adding immediately after subsection (3) the following:

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

(5) Nothing in this Act limits the jurisdiction of the court to punish for contempt in accordance with Rule 53 of the Rules of the Supreme Court, 1986.

(6) Where money is payable for the benefit of a creditor under a contempt order made by the court, it shall be paid to the sheriff and is considered to be money realized by enforcement proceedings under subsection 150(1).

(7) Where the court appoints a receiver under subsection (1), the court may in the order direct that the order apply to property acquired by the debtor after the order is granted.

23. (1) Subparagraph 135(4)(c)(ii) of the Act is repealed and the following substituted:

(ii) the value of the property of that type which the debtor continues to own, including property to which subsection (5) applies.

(2) Subsections 135(6) and (7) of the Act are repealed and the following substituted:

(6) Where the debtor receives compensation for damage to property to which subsection (5) applies, the debtor is entitled, from the compensation, to an amount sufficient to make repairs to the property if

(a) it is reasonable to make the repairs; and

(b) the total compensation received is sufficient to make repairs so that the property would be reasonably suited for its intended use,

and compensation to which the debtor is entitled is considered to be an entitlement under subsection (4).

(7) Where the debtor receives compensation for damage to property to which subsection (1) applies and subsection (6) does not apply, the property shall be considered to be destroyed and subsection (5) applies.

(8) Where a structure is damaged or destroyed and the debtor is the owner of the land on which the structure is situated, subsections (5) and (6) apply with respect to the structure but not the land, except as provided in subparagraph (4)(c)(ii).

24. (1) Subsection 137(6) of the Act is amended by striking out the words and figure "for a period of 90 days from receipt of the property".

(2) Subsection 137(7) of the Act is repealed and the following substituted:

(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) within a period of 90 days from the receipt of the property, 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.

25. Section 140 of the Act is repealed and the following substituted:

Income exemption certificate

140. (1) Except where an income exemption certificate has been issued or varied under subsection (2) or (3), 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) Except as provided in subsection (3), the court may, on the application of the debtor or a creditor, vary an income exemption certificate, having regard to the family responsibilities and personal situation of the debtor and based on information that the court may require.

(3) Where the only creditors are small claims creditors, a Provincial Court judge, on the application of the debtor or a creditor, may, in the required form, issue or vary an income exemption certificate, having regard to the family responsibilities and personal situation of the debtor and based on information that the judge may require.

26. Subsection 141(1) of the Act is repealed and the following substituted:

Income exemption limits

141. (1) For the purpose of this Part except where an order is made under subsection 140(2) or (3), the income exemption shall be determined in accordance with the regulations.

27. Paragraph 142(2)(a) of the Act is repealed and the following substituted:

(a) the sheriff at the request of the debtor or a creditor may increase or decrease the income exemption for a particular month 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;

28. Paragraph 143(1)(a) of the Act is repealed and the following substituted:

(a) from a retirement fund;

29. (1) Subsection 146(9) of the Act is repealed and the following substituted:

(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, subject to subsection (4), confirm, issue, repeal or vary that instalment order and the sheriff may not further vary or repeal that order under subsection (7).

(2) Subsection 146(11) of the Act is repealed and the following substituted:

(11) An order for a payment schedule shall not be issued under subsection 10(2) of the Small Claims Act where

(a) an instalment order issued in accordance with this section is in effect; or

(b) the employment income of the debtor has been attached by a garnishee order.

(3) Subsection 146(16) of the Act is repealed.

30. (1) Subsection 147(7) of the Act is repealed and the following substituted:

(7) Where

(a) a debtor fails to return a completed questionnaire as required under Part IV;

(b) an instalment order, or an order for a payment schedule made under subsection 10(2) of the Small Claims Act is not in effect; and

(c) the sheriff is of the opinion that the failure to return the completed questionnaire is without just cause,

the sheriff shall issue a garnishee order under Part VIII with respect to the net pay of the debtor.

(2) Section 147 of the Act is amended by adding immediately after subsection (7) the following:

(8) Where

(a) an order for a payment schedule made under subsection 10(2) of the Small Claims Act is in effect;

(b) a garnishee order with respect to employment earnings is not in effect; and

(c) the debtor has defaulted without just cause in a payment required by the order,

a Provincial Court judge may

(d) instruct the sheriff to issue a garnishee order in accordance with section 121.

(9) Where the sheriff has been issued instructions under paragraph (8)(d), a Provincial Court judge may, on application, instruct the sheriff to vary or terminate a garnishee order issued under paragraph (d).

(10) Money received by the sheriff as a result of a garnishee order issued under subsection (8) or (9) shall be dealt with by the sheriff as if it were money received under an order for a payment schedule.

31. (1) Paragraph 154(1)(b) of the Act is repealed and the following substituted:

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

(2) Paragraph 154(1)(c) of the Act is repealed and the following substituted:

(c) third, to other expenses that may be claimed against the enforcement debtor 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);

32. (1) Subsection 157(2) of the Act is repealed and the following substituted:

(2) Where a person receives a payment by way of distribution and the person does not have an eligible claim, or the payment exceeds the amount outstanding on the judgment at the time the payment is received, the person shall

(a) immediately notify the sheriff; and

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

(2) Subsections 157(4) and (5) of the Act are repealed and the following substituted:

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

33. Subsection 161(2) of the Act is repealed and the following substituted:

(2) The sheriff shall serve a notice of a claim in the required form upon a person

(a) where the sheriff has reasonable grounds to believe that the person has an interest in the property subject to the enforcement proceedings; or

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

34. Paragraph 162(2)(d) of the Act is repealed and the following substituted:

(d) in another case, the notice of claim is not served on the sheriff before the distribution of the proceeds of the enforcement proceedings with respect to the property.

35. (1) Subsection 165(2) of the Act is amended by adding immediately after the words "a person" the words "referred to in subsection (1)".

(2) Subsection 165(3) of the Act is amended by adding immediately after the words "A person" the words "referred to in subsection (1)".

36. Section 167 of the Act is repealed and the following substituted:

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; and

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

SN1995 cL-16.1 Amdt.

37. Subsection 18(1) of the Limitations 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

(a) commence a further action to obtain a judgment based upon that earlier judgment; or

(b) start a proceeding to enforce a judgment based upon that earlier judgment.

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