Bill 56 - Enforcement of Money Judgments Act

BILL 56

Enforcement of Money Judgments Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

PART 1

DEFINITIONS, INTERPRETATION AND APPLICATION

Definitions

1 The following definitions apply in this Act.

“account” means a monetary obligation owed to a judgment debtor, whether or not it is payable yet, and whether or not it is specific as to amount, and includes a future account. (compte)

“account debtor” means a person who owes or will owe an account to a judgment debtor, or will do so in specified circumstances, and includes, when applicable, an insurer, issuer, guarantor or indemnitor. (débiteur du compte)

“amount recoverable” means, in relation to a judgment, the total of (montant recouvrable)

(a) the unsatisfied amount of the judgment, including costs and interest,

(b) any expenditure incurred by a sheriff carrying out enforcement action,

(d) any other amounts that are stated by this Act or the regulations to be part of the amount recoverable.

“binds” means charges property with the amount recoverable and with the provisions of this Act relating to the recovery of that amount. (grève)

“Chief Sheriff” means the Chief Sheriff appointed under subsection 2(2) of the Sheriffs Act and includes a Deputy Chief Sheriff under subsection 3(1) or (2) of that Act. (shérif en chef)

“clerk” means a clerk of the court. (greffier)

“co-owned property” means property that a judgment debtor owns with one or more persons as a joint tenant or tenant in common, but does not include partnership property. (biens détenus en copropriété )

“co-owner” means a person who co-owns property with a judgment debtor. (copropriétaire)

“court” means The Court of Queen’s Bench of New Brunswick unless the context requires otherwise. (cour)

“deliver” means deliver by any means, and includes serve. (délivrer)

“dependant” means a dependant, as defined in section 111 of the Family Services Act, of the judgment debtor, who is actually being supported by the judgment debtor. (personne à charge)

“enforcement instruction” means an enforcement instruction under section 42. (instructions d’exécution forcée)

“enforcement proceeds” means the money that a sheriff recovers when carrying out an enforcement instruction and includes (produit de l’exécution)

(a) money paid by the judgment debtor voluntarily,

(b) money collected by the sheriff from an account debtor, and

“exempt” means exempt from realization under Part 9. (exempté)

“financing change statement” means a financing change statement as defined in the Personal Property Security Act. (état de modification de financement)

“future account” means an account (compte futur)

(a) that will become owed within 12 months after a notice of seizure has been served, or

(b) that is one of a series of recurring payments arising from a legal relationship between an account debtor and a judgment debtor that exists when a notice of seizure is served, regardless of the time when the payment will become owed.

“goods” means goods as defined in the Personal Property Security Act. (objets)

“instructing creditor” means a judgment creditor who has delivered an enforcement instruction to a sheriff. (créancier percepteur )

“intellectual property” includes any property right or interest in the following, whether arising under the law of Canada or the law of any other country: (propriété intellectuelle)

(a) a copyright;

(b) letters patent for an invention;

(d) an industrial design;

(e) integrated circuit topography;

(f) plant breeder’s rights; and

(g) a transferable licence, interest or right derived from or associated with intellectual property mentioned in paragraphs (a) to (f).

“judgment” means a judgment or order which, or part of which, requires the payment of a fixed sum of money, and which is (jugement)

(a) a judgment of the court, of The Court of Appeal of New Brunswick, or of the Supreme Court of Canada,

(b) a judgment issued under the Federal Courts Act (Canada),

(c) a judgment or order of the Small Claims Court that has been filed with the court under section 17 of the Small Claims Act, or

(d) an order, determination or certificate that has been issued by any other court, tribunal or competent authority, whether inside or outside the Province, and has, by virtue of another Act, been filed with the court and become enforceable as a judgment of the court.

“judgment creditor” means a person in whose favour a judgment has been granted. (créancier judiciaire)

“judgment debtor” means a person against whom a judgment has been granted. (débiteur judiciaire )

“land registry” means the registry systems established under the Land Titles Act and the Registry Act. (registre foncier)

“licence” means a transferable right granted to a person, whether or not exclusively, and whether or not there are restrictions on transfer, (permis)

(a) to manufacture, produce, reproduce, sell or otherwise deal with property,

(b) to transport persons or property,

(d) to engage in an undertaking for which a licence or other authorization is required under an Act, or

(e) to provide services.

“notice of seizure” means the notice referred to in paragraph 58(1)(b). (avis de saisie)

“partnership property” has the same meaning as in the Partnership Act. (biens de la société en nom collectif)

“personal property” means personal property as defined in the Personal Property Security Act. (biens personnels )

“Personal Property Registry” means the Personal Property Registry established under subsection 42(1) of the Personal Property Security Act. (Réseau d’enregistrement des biens personnels)

“prescribed” means prescribed by regulation under this Act or, in the case of fees, under this Act or the Sheriffs Act. (prescrit)

“property” means (biens)

(a) land,

(b) personal property, and

“realize” means realize the value of property by sale, collection or otherwise. (réaliser)

“receiver” means a receiver appointed under Part 11. (séquestre)

“record of seizure” means the record referred to in section 61. (certificat de saisie)

“registered creditor” means a judgment creditor who has registered a judgment in the Personal Property Registry. (créancier enregistré)

“registered land” means land the title to which has been registered under the Land Titles Act. (bien-fonds enregistré)

“retirement fund” means a registered retirement savings plan, a registered retirement income fund or a deferred profit sharing plan as defined in section 146, 146.3 or 147 of the Income Tax Act (Canada) respectively. (caisse de retraite)

“security agreement” includes a mortgage of land. (contrat de sûreté)

“sell” means dispose of by any means for consideration of any kind. (vendre)

“serve” means serve (signifier)

(a) by any means that constitutes personal service under the Rules of Court, and

(b) by substituted service as ordered by the court.

“sheriff” means a sheriff or a deputy sheriff appointed under section 2 of the Sheriffs Act but does not include a sheriff’s officer under section 11 of that Act. (shérif)

“unregistered land” means land that is not registered land. (bien-fonds non enregistré)

“valuable right” means a right, claim or interest that is not land or personal property but that can be transferred for value from one person to another. (droit onéreux)

Application

2( 1) This Act applies to the Crown in exercising its rights or remedies as a judgment creditor but does not permit registration or enforcement of a judgment against Crown property.

2( 2) This Act does not permit the enforcement of a judgment by sale of municipal property.

2( 3) This Act does not apply to the enforcement of support under the Support Enforcement Act or the Interjurisdictional Support Orders Act unless a certificate referred to in section 34 of the Support Enforcement Act has been entered and recorded under that section.

Federal Court judgments

3( 1) A judgment issued under the Federal Courts Act (Canada) may be registered and enforced in accordance with this Act without the issuing of any process under the Federal Courts Act (Canada) for enforcing it.

3( 2) If, in relation to a judgment issued under the Federal Courts Act (Canada), that Act is in conflict with this Act, the Federal Courts Act (Canada) prevails.

3( 3) If process has issued under the Federal Courts Act (Canada) for enforcing a judgment issued under that Act, this Act applies to the enforcement of the judgment except to the extent that it is inconsistent with the terms of the order issuing process.

PART 2

GENERAL

Chief Sheriff

4 The Chief Sheriff may exercise, or may give directions to a sheriff as to the exercise of, any power of a sheriff under this Act.

Sheriff’s officers

5 The Chief Sheriff or a sheriff may determine in accordance with the Sheriffs Act which functions of a sheriff under this Act may be performed by a sheriff's officer.

Liability protection for sheriffs

6( 1) A sheriff or sheriff’s officer is not liable to any person for any action or decision that the sheriff or sheriff’s officer takes in good faith in the discharge or intended discharge of his or her functions under this Act.

6( 2) A sheriff and a sheriff’s officer are officers of the Crown for the purposes of subsection 4(8) of the Proceedings Against the Crown Act.

Consent

7 Anything done by a sheriff with the written consent of the persons affected is deemed to have been done in accordance with this Act.

Sheriff’s authorization

8( 1) A sheriff may authorize a judgment creditor or an agent of the judgment creditor to give any notice or deliver any document that the sheriff may give or deliver under this Act.

8( 2) If a judgment creditor or agent acts under subsection (1), the judgment creditor or agent shall deliver to the sheriff an affidavit stating that the action authorized has been taken in accordance with this Act, and the sheriff may rely on the affidavit.

Forms of documents

9( 1) Subject to subsection (2), the Chief Sheriff may establish the form and content of a document that is to be used by or provided to the sheriff.

9( 2) If forms or documents have been prescribed under paragraph 100(c) or (d), the prescribed form or document shall be used.

Court determinations

10( 1) On application by the sheriff or an interested party, the court may determine and give directions in respect of any matter or issue that arises under this Act, including any matter that this Act refers to as being determined by a sheriff.

10( 2) When this Act requires an application to the court to be brought within a particular time, the court may extend the time, on such terms as may be just, either before or after the expiration of that time.

10( 3) An order of the court under this Act may be made on such terms and conditions as the court sees fit.

10( 4) If, as the result of an application brought by an instructing creditor, more property is available to satisfy the judgment than would have been available if the application had not been brought, the court may

(a) direct that the instructing creditor’s costs are part of the amount recoverable, and

(b) state the amount of those costs.

PART 3

PRESERVATION ORDER

Definitions

11 The following definitions apply in this Part.

“claimant” means a person who has commenced, or who intends to commence, proceedings seeking a judgment. (demandeur)

“defendant” means the person against whom the proceedings have been, or will be, commenced. (défendeur)

“deplete assets” means conceal or remove property or deal with it in any other way that is not for ordinary business or social purposes and is likely to seriously impede the claimant in the enforcement of a judgment against the defendant. (épuiser des biens)

Application for preservation order

12 A claimant who alleges that a defendant is depleting its assets or is likely to do so may apply to the court for a preservation order.

Issuing and contents of preservation order

13( 1) If the court is satisfied that the defendant is depleting its assets or is likely to do so, and that there is a reasonable likelihood that the claimant will obtain judgment, the court may issue a preservation order to prevent or reverse the depletion of assets or to ensure that property remains available to satisfy the judgment.

13( 2) Without limiting subsection (1), a preservation order may

(a) prohibit or restrict any dealing with the property to which the preservation order applies,

(b) require the payment into court of an account that is owed or will become owed to the defendant,

(c) require the defendant or a person who has possession or control of property of the defendant to deliver the property to a person identified in the order,

(d) impose restrictions or conditions on the defendant,

(e) appoint a receiver, with or without security, in which case Part 11 applies with the necessary modifications, and

(f) make any other provision that the court considers desirable for ensuring the effectiveness of the preservation order.

13( 3) A preservation order may be issued against

(a) the defendant or any other person with respect to existing property of the defendant and property the defendant may acquire in the future, and

(b) a transferee, with respect to property received from the defendant.

13( 4) If the court considers that the defendant is concealing property, the court may require the defendant to disclose the existence and location of the property.

13( 5) A preservation order shall not apply to more of the defendant’s property than will be reasonably necessary to satisfy the judgment arising out of the claim.

Undertaking by claimant

14( 1) A court that issues a preservation order may require the claimant to give an undertaking to indemnify the defendant or another person if the claimant does not obtain a judgment.

14( 2) If the court requires an undertaking, the court may also require the claimant to provide security in the amount the court considers appropriate.

Depreciating assets

15 If a preservation order has been issued, the court may authorize or require the defendant or a sheriff or receiver to take measures to protect or to sell any property to which the order applies if the property is perishable or may decline substantially in value while the order is in effect.

Duration

16( 1) A preservation order shall state its duration.

16( 2) A preservation order may be issued to remain in effect until judgment.

16( 3) If a preservation order has been issued to remain in effect until judgment, and judgment is given, the preservation order continues in effect until further order or until the judgment is satisfied.

Variation and termination

17( 1) A preservation order may be varied, extended or discharged, or a further preservation order may be obtained, by a further application.

17( 2) The court may require the defendant to provide security as a condition of granting a discharge of a preservation order.

Registration

18( 1) A preservation order may be registered in the Personal Property Registry by registering a notice of claim in accordance with the Personal Property Security Act.

18( 2) A preservation order may be registered in the land registry in accordance with the Land Titles Act or the Registry Act.

18( 3) If a preservation order relates to registered land, the order may include a requirement that a stop order be issued and registered in relation to the land under section 36 of the Land Titles Act.

Assisting non-compliance

19( 1) The court may order a person who knowingly assists or participates in a dealing that is inconsistent with a preservation order

(a) to compensate any claimant or judgment creditor who incurs a loss as a result of the dealing, or

(b) to return to the defendant any property acquired by the person through the dealing.

19( 2) For the purposes of subsection (1)

(a) if a preservation order has been registered against property in accordance with section 18, a person who assists or participates in a dealing with the property is presumed, in the absence of evidence to the contrary, to have acted with knowledge of the order, and

(b) if, when a person receives notice of a preservation order, he or she has a legal obligation to someone other than the defendant in relation to the property affected, the performance of that obligation shall not be regarded as assisting or participating in a dealing inconsistent with the order.

19( 3) Nothing in this section restricts the power of the court to enforce a preservation order in proceedings for contempt of court.

Application by judgment creditor

20 A judgment creditor may also apply for a preservation order, and the provisions of this Part apply with the necessary modifications.

PART 4

REGISTRATION

Registration

21( 1) A judgment creditor may register a judgment in the Personal Property Registry by registering a notice of judgment in accordance with the Personal Property Security Act.

21( 2) A judgment creditor may register a judgment in relation to registered land or an interest in registered land in accordance with the Land Titles Act.

21( 3) A judgment creditor may register a judgment in relation to unregistered land or an interest in unregistered land in accordance with the Registry Act.

21( 4) A judgment may be registered whether or not the time for filing an appeal has expired or an appeal has been filed.

Duration of registration

22( 1) Registration of a judgment in the Personal Property Registry is effective for the period specified in the registration, to a maximum of 15 years after the date of the judgment.

22( 2) A registration in the Personal Property Registry may be amended or renewed by registering an amendment or renewal of the notice of judgment at any time before or after the registration expires, but no registration is effective more than 15 years after the date of the judgment.

22( 3) Registration of a judgment in the land registry is effective for 15 years after the date of the judgment.

Revision of registration

23( 1) The registration of a judgment may be revised by discharge, amendment or otherwise if

(a) the judgment to which the registration relates has been satisfied or set aside or is not enforceable,

(b) the registration is inaccurate or detrimentally affects a person whose name is similar to the judgment debtor’s name, or

23( 2) Paragraph (1)(a) does not apply to a judgment the enforcement of which has been temporarily stayed.

Revision of registration - Personal Property Registry

24( 1) A judgment creditor shall discharge or amend a registration in the Personal Property Registry within 21 days after becoming aware that section 23 applies.

24( 2) When section 23 applies, the judgment debtor or other person affected by the registered judgment may deliver a written demand to the judgment creditor requiring discharge or amendment of the registration within 21 days.

24( 3) Within 21 days after receiving the demand, the judgment creditor shall

(a) discharge or amend the registration, or

(b) apply to the court to maintain or amend the registration and provide a copy of the application to the person who delivered the demand.

24( 4) If a judgment creditor does not comply with subsection (3), the judgment debtor or other person who delivered the demand may register the discharge or amendment.

24( 5) No fee or expense shall be charged by a judgment creditor for compliance with a demand under this section.

Revision of registration - registered land

25 A registration may be revised in relation to registered land

(a) by the filing or registration of an amending instrument under section 18 of the Land Titles Act,

(b) under the procedures in sections 43 and 44 of that Act for the cessation, withdrawal or removal of a registration,

(d) otherwise in accordance with that Act.

Revision of registration - unregistered land

26( 1) A registration may be revised in relation to unregistered land

(a) by the registration of a court order that supersedes, discharges or amends the registered judgment,

(b) by the registration of a certificate of discharge or partial discharge under section 57 of the Registry Act, or

( i) acknowledges that section 23 applies, and

( ii) contains the correction, clarification or other information required for the purposes of that section.

26( 2) If section 23 applies but there is no court order under paragraph (1)(a), the judgment debtor or other person affected may deliver a written demand to the judgment creditor requiring the judgment creditor to grant a certificate or instrument under paragraph (1)(b) or (c) within 21 days.

26( 3) If the judgment creditor cannot be found or if the judgment creditor does not grant the certificate or instrument, the judgment debtor or other person affected may apply to the clerk under the Rules of Court for

(a) a memorandum of satisfaction of judgment, or

(b) a supplementary order.

Revision not required

27 Sections 23 to 26 do not require a judgment creditor to revise a registration that has ceased to be effective under section 22.

Effect of registration - personal property

28( 1) Subject to this section, registration of a judgment under the Personal Property Security Act binds all of the present and after-acquired personal property of the judgment debtor.

28( 2) In a registration under the Personal Property Security Act, the judgment creditor may limit the registration to specified personal property by identifying that property as being the collateral to which the registration relates.

28( 3) A judgment creditor who does not initially create a limitation under subsection (2), may do so at a later time by registering a financing change statement.

28( 4) The judgment creditor may remove or vary a limitation under subsection (2) or (3) by registering a financing change statement.

Priorities - personal property

29( 1) Subject to this section, an interest acquired in personal property that is bound by a registered judgment is subordinate to the registered judgment.

29( 2) A transferee of personal property that is bound by a registered judgment has priority as against the registered judgment in the same circumstances that, under subsections 30(1) to (4), (6) and (8) and section 31 of the Personal Property Security Act, a transferee of personal property that is subject to a security interest perfected by registration has priority as against the secured party, and those provisions apply with the necessary modifications.

29( 3) If personal property that is bound by a registered judgment is investment property as defined in the Personal Property Security Act,

(a) the registered judgment does not limit the rights of a protected purchaser of a security under the Securities Transfer Act,

(b) the interest of a protected purchaser of a security under the Securities Transfer Act has priority over the registered judgment to the extent provided in that Act, and

(c) the registered judgment does not limit the rights of or impose liability on a person to the extent that the person is protected against the assertion of a claim under the Securities Transfer Act.

29( 4) For the purposes of subsection 20(1) of the Personal Property Security Act and subject to section 22 of that Act, the personal property of a judgment debtor is bound by a registered judgment even though the security interest referred to in subsection 20(1) of the Personal Property Security Act attached before the judgment was registered.

29( 5) If goods are bound by a registered judgment, a lien on the goods that arises as a result of the provision in the ordinary course of business of materials or services in respect of the goods has priority over the registered judgment.

29( 6) If an interest acquired in personal property that is bound by a registered judgment is subordinate to a registered judgment, the property is subject to enforcement action to the same extent as if the subordinate interest did not exist.

Effect of registration - land

30( 1) Registration of a judgment under the Land Titles Act

(a) binds the interests against which the judgment is registered, and

(b) has priority over, or is subordinate to, other interests as provided in the Land Titles Act.

30( 2) Registration of a judgment under the Registry Act

(a) binds the present and after-acquired unregistered land of the judgment debtor in the county where the judgment is registered, and

(b) has priority over, or is subordinate to, other interests as provided in the Registry Act.

Effect of registration - valuable rights

31( 1) Registration of a judgment under the Personal Property Security Act binds the judgment debtor’s present and after-acquired valuable rights.

31( 2) A person who acquires a valuable right after a judgment has been registered is not affected by the registered judgment if he or she acquired the right for value and without notice of the registered judgment.

31( 3) A person has notice of a registered judgment if he or she knows or has reason to believe a judgment against the judgment debtor has been registered in the land registry or the Personal Property Registry.

Expiry of registration

32 When the registration of a judgment ceases to be effective under section 22, the property that was bound by the registration ceases to be bound if the registered creditor has not delivered an enforcement instruction to the sheriff.

PART 5

EXAMINATION OF JUDGMENT DEBTOR

Examination

33( 1) A registered creditor may, before or after delivering an enforcement instruction to the sheriff, apply to the clerk to order the judgment debtor to attend an examination concerning

(a) what property the judgment debtor owns, and

(b) the judgment debtor’s ability to satisfy the judgment.

33( 2) The application shall be in the prescribed form and accompanied by the prescribed documents, information and fee.

33( 3) Unless the registered creditor and the judgment debtor agree otherwise, the application shall be made in the judicial district where the judgment debtor resides or has a place of business, and the examination shall be held there.

33( 4) The clerk is not required to hear the registered creditor before issuing or not issuing the order to attend, but may do so.

Order to attend

34 An order to attend shall be in the prescribed form, and may order the judgment debtor to bring documents and records to the examination.

Procedure

35( 1) At the examination

(a) the clerk shall determine the procedure to be followed,

(b) the registered creditor may examine the judgment debtor in the same way that a party would examine an opposing party,

(d) at the request of either party, the clerk may permit the proceedings to be recorded by a court stenographer.

35( 2) The examination shall be conducted under oath.

Adjournment

36 The clerk may adjourn the examination and may order the judgment debtor to return for a further examination and to bring further information and documents.

Non-cooperation

37( 1) If the judgment debtor fails to attend the examination or fails to provide complete and honest answers,

(a) the clerk may so report,

(b) the registered creditor may bring proceedings for contempt against the judgment debtor, and may use the clerk’s report as evidence in those proceedings, and

(c) the registered creditor may apply to the clerk, either under section 33 or verbally under oath, for another person to be examined, and the clerk, if satisfied that the other person can and should provide the required information, may

( i) order that person to provide the information, or

( ii) order that person to attend an examination.

37( 2) If another person is ordered to attend, the registered creditor shall pay or tender attendance money to that person as though he or she were a witness summoned to attend a trial under the Rules of Court.

Order

38( 1) After the examination, the clerk

(a) may prepare a report of his or her findings, and

(b) may issue an order as to the payment of the judgment, which may include provisions relating to the time or manner of payment or for payment in instalments.

38( 2) If the clerk adjourns proceedings under section 36, the clerk may issue an interim order under this section.

38( 3) An order under this section does not stay or bar any other action that has been or may be taken to enforce the judgment.

Review

39( 1) A registered creditor or a judgment debtor may request a review of an order under section 38 if there has been a material change of circumstances or for other cause.

39( 2) The procedure for a review is the same as for an original examination, with the necessary modifications.

Expenses of the examination

40( 1) No award shall be made for the costs and disbursements of an examination.

40( 2) If amounts are prescribed under paragraph 100(a) in relation to the registered creditor’s expenses for an examination, those expenses form part of the amount recoverable.

Referral to judge

41 The clerk may refer to a judge of the court any issue arising in connection with an examination under this Part.

PART 6

ENFORCEMENT INSTRUCTION

Delivery of enforcement instruction

42 A registered creditor may initiate enforcement action by delivering to the sheriff an enforcement instruction in the prescribed form accompanied by the prescribed documents, information and fee.

Additional information

43( 1) The sheriff may request additional information from the instructing creditor when the enforcement instruction is delivered or subsequently.

43( 2) The instructing creditor may, at any time, deliver to the sheriff additional information relating to the enforcement of the judgment.

Change of circumstances

44( 1) An instructing creditor shall promptly notify the sheriff or withdraw the enforcement instruction if

(a) all or any portion of the judgment is discharged by a court order, or is satisfied by a payment of money or transfer of property,

(b) enforcement of the judgment is stayed by an order of the court, by an agreement or otherwise, or

44( 2) The instructing creditor shall provide the sheriff with any documents or information the sheriff requests in connection with a notification under subsection (1).

Withdrawal of enforcement instruction

45( 1) An instructing creditor may withdraw an enforcement instruction at any time by delivering a signed notice in writing to the sheriff.

45( 2) If an instructing creditor withdraws an enforcement instruction under section 44 or this section,

(a) the sheriff shall release from seizure any property that had been seized under the authority of the enforcement instruction unless the sheriff has also received another enforcement instruction applicable to that property, and

(b) the instructing creditor shall pay the sheriff any fees and expenses that the sheriff is entitled to receive for actions taken or obligations incurred by the sheriff in relation to the enforcement instruction that has been withdrawn.

Termination of enforcement instruction

46( 1) A sheriff may terminate an enforcement instruction by delivering a notice in writing to the instructing creditor

(a) if enforcement action has been taken and enough property has been recovered to satisfy the judgment,

(b) if enforcement action has been taken and the sheriff considers that the judgment has been as fully enforced as is reasonably practicable, or

(c) if the sheriff is unable to locate any property of the judgment debtor that can be realized in order to satisfy the judgment.

46( 2) Before terminating an enforcement instruction under paragraph (1)(b) or (c), the sheriff

(a) shall give 21 days’ notice in writing to the instructing creditor, and

(b) shall consider any further information provided by the instructing creditor within those 21 days.

Multiple enforcement instructions

47 If, while an enforcement instruction is in effect, another enforcement instruction is delivered to the sheriff, the enforcement instructions shall be enforced together.

Subsequent enforcement instruction

48 If an enforcement instruction has been withdrawn or terminated but there is still an amount recoverable, the registered creditor may deliver another enforcement instruction subsequently if

(a) the registered creditor has new information that will assist in enforcing the judgment,

(b) the judgment debtor has failed to comply with a payment arrangement in reliance on which the previous enforcement instruction was withdrawn or terminated, or

Expiry of registration

49 If the registration of a judgment ceases to be effective under section 22 after the judgment creditor has delivered an enforcement instruction, enforcement of the judgment may continue as though the registration were still effective.

Liability protection for instructing creditor

50 An instructing creditor does not incur liability to any person for interfering with possessory or property rights by reason only of having given an enforcement instruction and additional information to the sheriff in good faith in accordance with this Part.

PART 7

ENFORCEMENT ACTION - GENERAL

Demand for payment

51 A sheriff who has received an enforcement instruction may demand payment from the judgment debtor.

Information

52( 1) The sheriff may require the judgment debtor to provide information about the judgment debtor’s property and ability to satisfy the judgment.

52( 2) If the judgment debtor is an individual, the sheriff shall inform the judgment debtor of the exemptions from realization.

Statement of assets and liabilities

53 The sheriff may require the judgment debtor to complete a statement of property and liabilities, which shall include property that is or may be exempt.

Duty to disclose

54 The judgment debtor shall provide complete and accurate information in response to the sheriff’s requirements under section 52 or 53.

Examination of judgment debtor

55( 1) If the sheriff considers that the judgment debtor has not complied with section 54, the sheriff may apply to the clerk under Part 5 to order the judgment debtor to attend an examination.

55( 2) If the clerk orders an examination, the sheriff shall give the instructing creditor notice of it.

55( 3) The sheriff and the instructing creditor may attend the examination, and may ask questions if they attend.

55( 4) This section does not limit the instructing creditor’s ability to apply to the clerk under Part 5.

Demand for information

56( 1) If the judgment debtor fails to attend the examination or if, following the examination, the clerk is not satisfied that the judgment debtor has provided complete and honest answers, the clerk may issue an order authorizing the sheriff to proceed under this section.

56( 2) When authorized under subsection (1), the sheriff may deliver a demand for information in prescribed form to any person the sheriff believes has information about the property or resources of the judgment debtor.

56( 3) A person who receives a demand for information shall, within 21 days,

(a) provide the information to the sheriff, or

(b) advise the sheriff in writing that the person does not have the information.

56( 4) If the person who receives the demand does not reply to it or replies under paragraph (3)(b), the sheriff may, if the sheriff believes that the person does have information about the judgment debtor’s property or resources, apply to the clerk under Part 5 to order the person to attend an examination.

56( 5) If the person who receives the demand is the judgment debtor’s employer, subsections 81(7) to (9) apply with the necessary modifications.

Seizure of property

57 For the purpose of enforcing a judgment, a sheriff may seize

(a) any property of the judgment debtor, and

(b) any former property of the judgment debtor that is bound by the registered judgment.

Methods of seizure

58( 1) Seizure under section 57 may be effected

(a) by taking physical possession of the property,

(b) by serving a notice of seizure on the judgment debtor or other person who has possession or control of the property, or who has the power to deliver possession or control to the sheriff, or

58( 2) For the purpose of paragraph (1)(b), if the property seized is an account or other obligation, the account debtor or other person who owes the obligation is a person who has control of the property.

58( 3) Property that is or may be exempt may only be seized under paragraph (1)(b) or (c).

58( 4) Subject to subsection (3), the sheriff may seize property under paragraph (1)(b) or (c) and subsequently take physical possession of the property under paragraph (1)(a).

Sheriff’s power of entry

59( 1) For the purpose of taking physical possession of property under paragraph 58(1)(a), the sheriff

(a) may enter any place or premises occupied by the judgment debtor,

(b) may, after giving reasonable notice to the occupier, enter any other place or premises where the sheriff believes that property of the judgment debtor is located,

(c) may enter or open any interior room, enclosure or container within the place or premises referred to in paragraph (a) or (b), and

(d) may use reasonable force for the purposes of this section.

59( 2) If the sheriff uses force to enter a place or premises referred to in paragraphs (1)(a) or (b), the sheriff shall make the place or premises reasonably secure before leaving.

Sheriff’s directions

60( 1) When the sheriff serves a notice of seizure under paragraph 58(1)(b), the sheriff may also serve directions

(a) respecting the manner in which the person served shall or shall not deal with the property while it remains in their possession or control, or

(b) requiring the person served to deliver possession or control of the property to the sheriff at the time or in the manner stated in the directions, or

60( 2) The sheriff may amend or revoke directions given under this section or issue new ones.

60( 3) A person who fails to comply with the sheriff’s directions without reasonable cause, and any other person who knowingly assists that person, is liable to the instructing creditor for any loss this causes.

60( 4) If the property seized is an account or other obligation, the sheriff’s directions may require payment of the account to the sheriff or the performance of the obligation.

Record of seizure

61( 1) After seizing property, the sheriff shall deliver a record of seizure in the prescribed form

(a) to the judgment debtor, if seizure was effected by any other means than serving a notice of seizure on the judgment debtor under paragraph 58(1)(b),

(b) if seizure was effected by taking physical possession from a person other than the judgment debtor, to that person, and

61( 2) The sheriff may deliver a record of seizure to any person.

61( 3) If the sheriff delivers a record of seizure by serving it, the sheriff may also serve directions under section 60 on the person served.

Effect of seizure

62( 1) When property has been seized by the sheriff

(a) the judgment debtor or other person affected can only deal with the property to the extent permitted by the sheriff, and

(b) a transaction that the judgment debtor or other person affected enters into in relation to the property without the sheriff’s consent is invalid.

62( 2) Subsection (1) does not affect a person who acquires for value, and without notice that it has been seized, property that is not bound by a registered judgment.

Dispute

63( 1) A person who claims to own or to have an unregistered interest in any property seized by the sheriff shall notify the sheriff and the judgment debtor without delay.

63( 2) The sheriff may require the person to produce evidence of the interest claimed, and may require the judgment debtor to either confirm or deny the person’s claim.

63( 3) The sheriff shall determine whether the interest claimed is or is not valid, and shall notify the judgment debtor and the person claiming the interest.

63( 4) Any interested party may apply to the court within 21 days for a ruling that the sheriff’s determination is incorrect.

63( 5) Unless a ruling under subsection (4) is obtained, the sheriff’s determination is final.

Release from seizure

64( 1) The sheriff may release property from seizure if satisfied

(a) that the judgment debtor does not have an interest in the property,

(b) that the property is exempt, or has no value, or that the cost of realization will exceed the amount the sheriff will realize,

(d) that the judgment will be satisfied through the realization of other property that the sheriff does not release from seizure.

64( 2) The sheriff shall notify the instructing creditor of his or her intention to release property from seizure, and the instructing creditor

(a) may apply to the court within 21 days for an order that the property should not be released, and

(b) shall notify the sheriff of the application under paragraph (a).

64( 3) The sheriff may release the property from seizure if the instructing creditor does not notify the sheriff under subsection (2).

Power of sheriff re seized property

65( 1) A sheriff who seizes a judgment debtor’s property may, while the property is under seizure or for the purpose of its realization, take any action with respect to that property that could be taken by the judgment debtor.

65( 2) Without limiting subsection (1), the powers of a sheriff under this section include the power

(a) to insure property or take any other steps to take care of or protect the property or its value,

(b) to make arrangements for crops to be grown or livestock raised, or for the completion of the manufacture of any item, or to take any other steps to enhance the value of the property seized,

(d) to execute or endorse any document that could be executed or endorsed by the judgment debtor,

(e) to make an election,

(f) to exercise a right as a beneficiary under a trust,

(g) to give a release or discharge,

(h) to endorse a security,

(i) to assign an account,

(j) to accept a reasonable payment in settlement of a disputed account, and

(k) to take legal proceedings in the name of the judgment debtor.

65( 3) A sheriff may use agents to take any action that a sheriff can take under this section.

65( 4) A sheriff may incur expenditure for the purpose of this section.

Sheriff’s certificate

66( 1) At the request of a person with whom the sheriff is dealing under section 65, the sheriff shall provide a certificate in prescribed form of the sheriff’s authority to act under that section.

66( 2) A certificate under subsection (1) is conclusive in favour of any person relying on it.

Purchases from the sheriff

67 A person who acquires property from the sheriff as a result of enforcement action acquires the property free of the registered judgment, of any interest subordinate to the registered judgment, and of any registered judgment that is not being enforced.

Sheriff not required to act

68( 1) A sheriff is not required to seize any property that may be seized under this Part, nor to take under section 65 any of the actions that may be taken under that section in relation to property seized.

68( 2) An instructing creditor may apply to the court to be authorized to take any action that the sheriff is empowered to take under section 65 but declines to take.

Payment by instructing creditor

69 The sheriff may require the instructing creditor to pay in advance, or give security for, part or all of any expenditure that the sheriff expects to incur when acting under this Part.

PART 8

ENFORCEMENT ACTION - SPECIFIC PROPERTIES

Application

70 In relation to the properties described in this Part, Part 7 applies together with the provisions of this Part.

Contents of buildings, enclosures or containers

71 The sheriff may seize the contents of a building, enclosure or container by posting or affixing a notice of seizure on the building, enclosure or container.

Crops and fixtures

72( 1) The sheriff may seize crops or fixtures separately from land by serving a notice of seizure that is limited to the crops or fixtures.

72( 2) If the sheriff intends to sell crops or fixtures separately from the land, the sheriff shall give notice of that intention to any person other than the judgment debtor who appears from the land registry to have an interest in the land.

72( 3) A person who receives notice under subsection (2) may buy the crops or fixtures for a reasonable price.

72( 4) For the purposes of selling crops, the sheriff has the same rights as the judgment debtor under any applicable marketing legislation or plan.

72( 5) If the sheriff sells crops or fixtures and the sheriff or the buyer removes them from the land, the sheriff or the buyer

(a) shall remove them in a way that causes as little damage to the land as reasonably possible, and

(b) shall compensate the owner of the land for the damage caused, but not for the loss of value that arises from the absence of the crops or fixtures.

Co-owned property

73( 1) The sheriff may seize a judgment debtor’s interest in co-owned property by seizing

(a) the interest, or

(b) subject to subsection (2), the property.

73( 2) If the sheriff seizes the property, the sheriff shall do so in a way that does not deprive the co-owner of his or her possession or use of the property.

73( 3) The powers of the sheriff under section 65 include the power to sever a joint tenancy and to apply for partition or sale of co-owned property.

73( 4) In the absence of evidence to the contrary, co-owned property is presumed to be owned in equal shares.

73( 5) Before selling the judgment debtor’s interest in co-owned property, the sheriff shall give the co-owner the opportunity to buy the judgment debtor’s interest in the property at a reasonable price.

73( 6) The sheriff may request the co-owner to consent to the sale of the property if the sheriff considers

(a) that the only value the co-owned property has for the co-owner is its financial value, and

(b) that the amount the sheriff recovers in respect of the judgment debtor’s interest in the property will be substantially increased if the sheriff sells the property rather than the interest.

73( 7) The co-owner may, within 21 days,

(a) consent to the sale, or

(b) refuse consent for the sale and give reasons for the refusal.

73( 8) If the co-owner does not reply within 21 days or refuses consent to the sale, the sheriff or the instructing creditor may apply to the court for an order directing the sale of the co-owned property.

73( 9) The court may direct the sale if satisfied

(a) that the conditions in paragraphs (6)(a) and (b) apply, and

(b) that the co-owner, in refusing consent to the sale, has not acted in a commercially reasonable manner.

Partnership property

74( 1) If a judgment has been issued and registered against a partnership, enforcement action may be taken in relation to partnership property as though the partnership were a person and were the sole owner of the partnership property.

74( 2) If a judgment debtor is a partner in a partnership, enforcement action may be taken in relation to the judgment debtor’s interest in partnership property.

74( 3) A seizure of a partner’s interest

(a) shall be by notice of seizure,

(b) does not affect the partnership’s ability to deal with the partnership property, and

(c) may be maintained by the sheriff despite the terms of any agreement stating that the judgment debtor’s interest in or right to possession of the property is or may be terminated if the interest is seized.

74( 4) The other partner or partners may at any time

(a) purchase the judgment debtor’s interest from the sheriff at a reasonable price, or

(b) obtain the release of the interest from seizure by paying the sheriff the lesser of

( i) the amount recoverable, and

( ii) the reasonable value of the judgment debtor’s interest.

74( 5) While the judgment debtor’s interest is under seizure, the sheriff may issue directions under section 60 to the partnership to pay to the sheriff some or all of the profits, dividends or other amounts that would be payable to the judgment debtor as a partner.

74( 6) The sheriff may assign the judgment debtor’s interest to the same extent that the judgment debtor could do so under subsection 32(1) of the Partnership Act.

74( 7) If the sheriff considers that partnership property, not exceeding the value of the judgment debtor’s interest, should be sold to satisfy the judgment, the sheriff may deliver to the partnership a request to consent to the sale.

74( 8) The partnership may, within 21 days,

(a) consent to the sale, or

(b) refuse consent to the sale and give reasons for its refusal.

74( 9) If the partnership does not reply within 21 days or refuses consent to the sale, the sheriff or the instructing creditor may apply to the court for an order directing the sale of partnership property.

74( 10) The court may direct a sale if it is satisfied

(a) that the sale would not substantially affect the operation of the partnership,

(b) that the value of the property to be sold does not exceed the value of the judgment debtor’s interest, and

Leases, contracts for sale and security agreements

75( 1) If the sheriff seizes the interest of a judgment debtor as a lessor of leased property, as a seller under a contract for sale, or as a secured party under a security agreement,

(a) the seizure includes the right to receive the payments due under the lease, contract or security agreement, and

(b) the sheriff may issue directions under section 60 to the lessee, purchaser or debtor requiring those payments to be made in whole or in part to the sheriff.

75( 2) If the sheriff seizes the interest of the lessee, of the purchaser, or of the debtor, the sheriff may maintain the seizure despite any provision of the lease, contract or security agreement under which the judgment debtor’s interest in or possession of the property is or may be terminated if the property is seized.

75( 3) When subsection (2) applies and the lessor, seller or secured party seeks to exercise a contractual or statutory right to terminate the interest of the judgment debtor or to take possession of the property in which the interest is held,

(a) the sheriff may release the seizure, with or without conditions,

(b) the sheriff or the instructing creditor may apply to the court for an order maintaining the interest of the lessee, buyer or debtor, or

(c) the sheriff or the instructing creditor may apply to the court for an order directing the sale of the interest seized by the sheriff.

75( 4) The court may make an order under paragraph (3)(b) or (c) if it considers that the lessor, seller or secured party is not acting in a commercially reasonable manner in seeking to terminate the judgment debtor’s interest.

Intellectual property

76( 1) If the sheriff seizes intellectual property, the sheriff may deliver a record of seizure to

(a) the office, if any, in which the intellectual property is registered, or

(b) a licensor of the intellectual property.

76( 2) If a transfer of intellectual property is subject to statutory requirements, a sale of the property occurs when the statutory requirements for a valid transfer of the property have been met.

Licences

77( 1) If the sheriff seizes a licence, the sheriff may deliver a record of seizure to the licensor.

77( 2) Subject to subsection (3), the sheriff may maintain the seizure of a licence despite any term of the licence stating that the licence is or may be terminated if the licence is seized.

77( 3) Subsection (2) does not apply to a licence issued under a statutory authority.

77( 4) The sheriff may only sell the licence in accordance with the conditions of the licence relating to its sale.

Securities and security entitlements - general

78( 1) In this section “appropriate person”, “endorsement”, “entitlement order”, “instruction”, “issuer”, “securities intermediary”, “security” and “security entitlement” have the same meanings as in the Securities Transfer Act.

78( 2) Despite section 58 but subject to subsection (3), a security and a security entitlement may only be seized by the sheriff in accordance with sections 47 to 51 of the Securities Transfer Act.

78( 3) Despite section 48 of the Securities Transfer Act, if the jurisdiction that governs the validity of a certificated security under section 44 of that Act is New Brunswick, a sheriff may seize the interest of a judgment debtor in the certificated security by serving a notice of seizure on the issuer at the issuer’s chief executive office, even if the security certificate has not been surrendered to the issuer.

78( 4) If a seizure under this section is by notice of seizure to an issuer or securities intermediary, the seizure becomes effective when the issuer or securities intermediary has had a reasonable opportunity to act on the seizure, having regard to the time and manner of receipt of the notice.

78( 5) If a judgment debtor’s interest in a security or security entitlement is seized by a sheriff, the sheriff is the appropriate person under the Securities Transfer Act for the purposes of dealing with or disposing of the seized property and, for the duration of the seizure, the judgment debtor is not the appropriate person under that Act for the purposes of dealing with or disposing of the seized property.

78( 6) If the sheriff makes or originates an endorsement, instruction or entitlement order as the appropriate person under subsection (5), the sheriff shall provide the issuer or securities intermediary with a certificate of the sheriff stating that the sheriff has the authority under this Act to make that endorsement, instruction or entitlement order.

78( 7) An issuer that has been served with a notice of seizure regarding a security of which the judgment debtor is the registered holder shall, on the direction of the sheriff,

(a) pay to the sheriff any distribution, dividend or other payment in respect of the security that would otherwise be payable by the issuer to the judgment debtor, and

(b) send to the sheriff any information or documents and allow the sheriff to inspect any records that the judgment debtor is entitled to receive or inspect.

78( 8) If a sheriff has seized a judgment debtor’s interest in a security entitlement by serving a notice of seizure on a securities intermediary whose securities intermediary’s jurisdiction within the meaning of the Securities Transfer Act is New Brunswick, the securities intermediary shall at the direction of the sheriff

(a) pay to the sheriff any distribution, dividend or other payment in respect of the security entitlement that would otherwise be payable by the securities intermediary to the judgment debtor, and

(b) send to the sheriff any information or documents and allow the sheriff to inspect any records that the judgment debtor is entitled to receive or inspect.

Securities with transfer or purchase restrictions

79( 1) The following definitions apply in this section.

“seized security” means the interest of a judgment debtor in a security that is seized. (valeur mobilière saisie)

“unanimous shareholder agreement” means a unanimous shareholder agreement as defined in the Business Corporations Act. (convention unanime des actionnaires)

79( 2) This section applies if the interest of a judgment debtor in a security is seized by a sheriff and the jurisdiction that governs the validity of the security under section 44 of the Securities Transfer Act is New Brunswick.

79( 3) Subject to subsection (5), if the transfer of the seized security is restricted by the terms of the security, by a restriction imposed by the issuer or by a unanimous shareholder agreement, the restriction applies to the sheriff.

79( 4) Subject to subsection (5), if a person would otherwise be entitled to acquire or redeem the seized security at a predetermined price or at a price fixed by reference to a predetermined formula, the person is entitled to acquire or redeem the security.

79( 5) On application by the sheriff or the instructing creditor, if the court, having taken into account the interests of the judgment creditor and of other persons affected, considers that a restriction on the transfer of the seized security, or a person’s entitlement to acquire or redeem the seized security, is unfairly prejudicial to the instructing creditor, the court may make any order that it considers appropriate regarding the seized security, including an order doing one or more of the following:

(a) directing the sale or the method or terms of sale of the seized security, or the method of realizing the value of the seized security otherwise than through sale;

(b) directing the issuer to pay dividends, distributions or interest to the sheriff;

(c) directing the issuer to register the transfer of the seized security to a person despite a restriction on the transfer of the security described in subsection (3) or the entitlement of another person to acquire or redeem the security described in subsection (4);

(d) directing that all or part of a unanimous shareholder agreement does not apply to a person who acquires or takes a seized security from the sheriff; and

(e) directing that the issuer be dissolved and its proceeds disposed of according to law.

79( 6) The sheriff may bring an application under section 141 of the Business Corporations Act as if he or she were a shareholder under that section, whether or not an application is brought under subsection (5).

79( 7) An application under subsection (5) may be joined with an application under section 141 of the Business Corporations Act.

79( 8) Unless otherwise ordered by the court under subsection (5), a person who acquires or takes a seized security from the sheriff is deemed to be a party to any unanimous shareholder agreement or any agreement under subsection 99(1) of the Business Corporations Act to which the judgment debtor was a party at the time of the seizure, if the agreement contains provisions intended to preclude the judgment debtor from transferring the security except to a person who agrees to be a party to that agreement.

79( 9) Despite subsection (8) and any provision in a unanimous shareholder agreement to the contrary, a person who acquires or takes a seized security from the sheriff is not liable to make any financial contribution to the corporation or provide any guarantee or indemnity of the corporation’s debts or obligations.

Accounts

80( 1) If the sheriff seizes an account, the account debtor shall, if the account is not payable at the time of the seizure, deliver to the sheriff, within 21 days after the date the notice of seizure is served, a signed document

(a) stating that the account is not owed or is not payable and explaining why,

(b) if the account is owed but is not payable, stating the date on which or the circumstances in which the account will become payable, and

(c) if the account is not yet owed or is a future account, stating the date on which or the circumstances in which the account will

( i) become owed, and

( ii) become payable.

80( 2) If the sheriff accepts the information in the account debtor’s statement, the sheriff shall, within 21 days, withdraw the notice of seizure or amend the directions accompanying it accordingly.

80( 3) If the sheriff does not accept the information in the account debtor’s statement, the sheriff shall, within 21 days, deliver to the account debtor a notice confirming the notice of seizure and directions.

80( 4) An account debtor, judgment debtor or instructing creditor who believes that the sheriff’s decision under subsection (2) or (3) is incorrect may apply to the court within 21 days for a determination of the issue.

80( 5) Unless an application is made under subsection (4), the sheriff’s decision is final.

80( 6) Payment to the sheriff of the amount specified in a notice of seizure or in the sheriff’s directions discharges the obligation of the account debtor to the extent of the amount paid.

80( 7) An account debtor is entitled to exercise a right of set-off against an account seized by the sheriff to the same extent that the account debtor could exercise a right of set-off against a claim by the judgment debtor for payment of the account.

80( 8) If the account seized is a deposit account and the judgment debtor is required to present a notice, passbook or other document as a condition of a withdrawal or payment, the account debtor shall pay the sheriff in accordance with the sheriff’s directions even though the judgment debtor or the sheriff has not presented the notice, passbook or other document.

Employment income

81( 1) A judgment debtor’s employment income is an account.

81( 2) If the sheriff seizes employment income, the sheriff shall ensure that the judgment debtor is not deprived of the part of the judgment debtor’s income that is exempt.

81( 3) A sheriff shall not seize a judgment debtor’s employment income from the judgment debtor’s employer unless the sheriff has been unable to collect that income in accordance with directions issued after serving a notice of seizure on

(a) the judgment debtor, or

(b) a financial institution or other person to whom the employer pays the income for the judgment debtor.

81( 4) If the sheriff seizes employment income from the judgment debtor’s employer, the sheriff shall serve directions under section 60 on the employer in the form of a payment order in prescribed form.

81( 5) The payment order shall direct the employer

(a) to deduct from the money owed and payable to the judgment debtor, or that will become owed and payable, the amount specified in the payment order in accordance with the schedule set out in the payment order, and

(b) to forward the amount deducted to the sheriff.

81( 6) The sheriff may give notice to the employer before serving the payment order.

81( 7) An employer shall not dismiss, suspend, lay off, penalize, discipline or discriminate against an employee for a reason related to the issuing of a payment order to the employer.

81( 8) An employee who alleges that he or she has been the subject of a contravention of subsection (7) may apply to the court, and the court, if it finds the allegation to be true, may make any order in favour of the employee that it considers just, including an order for reinstatement and an award of damages.

81( 9) In an application under subsection (8), an employer who has dismissed, suspended, laid off, penalized, disciplined or discriminated against an employee while a payment order was in effect or within 6 months after it ceased to have effect must show cause why that action was taken.

81( 10) Unless the employer shows cause, the action is deemed to have been taken in contravention of subsection (7).

Payments under trusts

82( 1) An obligation of a trustee to pay money to a judgment debtor as the beneficiary of a trust is deemed to be an account payable to the beneficiary on the earlier of

(a) the day on which the conditions for payment imposed by the trust are fulfilled, and

(b) the day on which, and to the extent that, the judgment debtor is entitled to be paid in discharge of the trust obligation in whole or in part.

82( 2) For the purposes of this section, a trustee is an account debtor to whom section 80 applies.

PART 9

EXEMPTIONS

Application of Part

83 This Part only applies if the judgment debtor is an individual.

No waiver of exemptions

84 A waiver or release given by a judgment debtor or a dependant of any exemption under this Part is void.

Exemptions

85 The following property of a judgment debtor is exempt from realization to the extent that the property is necessary to meet the reasonable needs of the judgment debtor and his or her dependants:

(a) household furniture, appliances and utensils;

(b) food, clothing and home heating fuel;

(d) tools and equipment used by the judgment debtor in the practice of his or her profession or occupation;

(e) medical and dental aids;

(f) household pets;

(g) income; and

(h) retirement funds.

Determination of exemptions

86( 1) The sheriff shall determine the existence and extent of any exemption under this Part, and shall notify the judgment debtor.

86( 2) If the judgment debtor disagrees with the sheriff’s determination, the judgment debtor may apply to the court within 21 days for the determination to be varied.

86( 3) The instructing creditor may be heard in proceedings under subsection (2), but is not a party to the proceedings.

86( 4) In determining how much of a judgment debtor’s income is exempt, the sheriff and the court may have regard to, but are not bound by, any directives issued by the Superintendent of Bankruptcy under section 68 of the Bankruptcy and Insolvency Act (Canada) relating to determining the surplus income of a bankrupt.

86( 5) In determining how much of a retirement fund is exempt, the sheriff shall have regard to

(a) the amount of income that will be exempt when the judgment debtor retires and the ability of the retirement fund to provide it, and

(b) other income that will be available to the judgment debtor when the judgement debtor retires, including a pension from a fund that another Act prevents from being seized.

Selection by judgment debtor

87 When property owned by the judgment debtor is of a kind described in paragraphs 85(a) to (h) but the judgment debtor owns more property of that kind than is necessary to meet the needs described in section 85, the judgment debtor may select, subject to section 88, the items to which the exemption will apply.

Excess value

88 When property of a kind described in paragraphs 85(a) to (h) is of sufficient value that the proceeds of its sale will exceed the cost of obtaining an adequate substitute, the sheriff may sell the property and provide the judgment debtor with the amount necessary to obtain the substitute.

Survival of exemption

89 If a judgment is being enforced against the estate of a deceased judgment debtor, a dependant of the judgment debtor may claim any exemption that would have been available to the judgment debtor while alive, but the amount allowed as an exemption shall take into account the fact that the judgment debtor is deceased.

Loss of exemption

90 Nothing in this Part prevents a sheriff from realizing on any property of a judgment debtor if

(a) the judgment debtor has failed to attend an examination under Part 5, or

(b) following an examination under Part 5 the clerk has determined that the judgment debtor has not provided complete and honest answers with respect to his or her property.

PART 10

APPLICATION OF ENFORCEMENT PROCEEDS

Order of application

91( 1) The sheriff shall apply the enforcement proceeds in the following manner and order, paying the amounts referred to in each paragraph in full if the enforcement proceeds are sufficient, then making payments under the paragraph that follows it if there are enforcement proceeds remaining:

(a) first, to pay out any security interest or other interest that has priority over the registered judgment, including

( i) a payment to a co-owner under section 73, and

( ii) a payment to the judgment debtor under Part 9;

(b) second, to reimburse the sheriff for the expenditure incurred by the sheriff in carrying out the enforcement action, and to pay any fees that are not paid in advance by the instructing creditor;

(c) third, to reimburse the instructing creditor for any amounts paid to the sheriff in advance under section 69 in respect of the sheriff’s expenses;

(d) fourth, to pay the instructing creditor any amounts that are part of the amount recoverable by virtue of paragraph (c) of the definition “amount recoverable”;

(e) fifth, to pay the instructing creditor the balance of the amount recoverable;

(f) sixth, if the sheriff knows of a person who is entitled to the amount remaining, in priority to the judgment debtor, to pay that person; and

(g) seventh, to pay the amount remaining to the judgment debtor.

91( 2) No payment shall be made to a registered creditor who has not delivered an enforcement instruction or who delivers an enforcement instruction after the sheriff gives notice to the instructing creditor under section 46.

Multiple instructing creditors

92( 1) If there are multiple instructing creditors and the enforcement proceeds are insufficient to pay all of them the full amount due under any of paragraphs 91(1)(c), (d) or (e),

(a) the instructing creditors shall be paid pro rata under that paragraph in proportion to their entitlements under it, and

(b) if, in relation to payments of the kind referred to in any of those paragraphs, some of the instructing creditors are entitled to priority over others, the enforcement proceeds

( i) shall be applied in accordance with those priorities, and

( ii) shall be applied pro rata in accordance with paragraph (a) if, when the priorities are equal, the enforcement proceeds are insufficient to make all the payments due.

92( 2) If there are multiple instructing creditors and the enforcement action discharges a security interest or other interest that is subordinate to one of the registered judgments but has priority over another, the enforcement proceeds shall be applied, in relation to the judgments and the intervening interest, as follows:

(a) first, to the total of the amounts recoverable under the judgments that have priority over the intervening interest, with this total amount being shared pro rata by all the instructing creditors;

(b) then, if there is an amount remaining, to the intervening interest;

(c) then, if there is an amount remaining, to the total of the amounts recoverable under the judgments that are subordinate to the intervening interest, with this total amount being shared pro rata by all the instructing creditors.

Notification and objection

93( 1) The sheriff shall give the persons referred to in subsection 91(1) notice of the proposed application of the enforcement proceeds.

93( 2) Any person who objects to the proposed application of enforcement proceeds shall notify the sheriff within 21 days.

93( 3) The sheriff shall consider the objections and shall notify the persons affected of the sheriff’s decision.

93( 4) A person affected may within 21 days apply to the court to have the proposed application of enforcement proceeds reviewed.

93( 5) Unless an application is made under subsection (4), the decision of the sheriff is final.

Payment into court

94 If the sheriff is able to determine the total amount payable under one of the paragraphs of section 91 or 92 but is unable to determine the priorities or entitlements as between the claims falling within the paragraph, the sheriff may pay into court the total amount payable under the paragraph in question, and may proceed with the payments under the other paragraphs.

PART 11

RECEIVERSHIP

Appointment of receiver

95( 1) A sheriff or a registered creditor may apply to the court for the appointment of a receiver to recover payment of a judgment.

95( 2) The court may make the appointment if it is just and convenient to do so.

95( 3) In determining whether to appoint a receiver the court may consider

(a) the likelihood that the appointment of a receiver would be an effective means of realizing the property,

(b) the practicability of enforcing the judgment through other enforcement action,

(d) the extent to which the appointment of a receiver may result in hardship or prejudice to the judgment debtor or another person,

(e) any conduct of the judgment debtor or other person that has made enforcement of the judgment more difficult or costly, and

(f) any other relevant factor.

95( 4) The appointment may relate to

(a) specified property of a judgment debtor,

(b) specified kinds of property of a judgment debtor,

95( 5) Unless otherwise ordered, an order made under subsection (2) applies to the property owned by the judgment debtor at the time of the appointment of the receiver and to property that is acquired by the judgment debtor during the receivership.

95( 6) An order appointing a receiver may include any provisions or requirements the court considers desirable for making the receivership effective.

Duration of receivership

96( 1) An order appointing a receiver is in effect for the period specified in the order.

96( 2) On application to the court, an order made under subsection 95(2) may be extended or renewed for a further period or periods.

Authority of receiver

97 During a receivership, the receiver has, in relation to the property affected,

(a) all the powers that a sheriff has in relation to seized property under section 65, and

(b) any other powers ordered by the court, either in the initial appointment or subsequently.

Court approval of receiver’s costs, fees and expenses

98 The receiver shall apply to the court for approval of the receiver’s costs, fees and expenses.

Payment to sheriff

99( 1) The receiver shall pay to the sheriff, after the deduction of the receiver’s costs, fees and expenses, the amount recovered through the receivership.

99( 2) The sheriff shall apply the amount referred to in subsection (1) in accordance with Part 10.

PART 12

REGULATIONS

Regulations

100 The Lieutenant-Governor in Council may make regulations

(a) prescribing amounts that form part of the amount recoverable;

(b) prescribing fees;

(d) prescribing other forms, documents or information to be used or provided under this Act;

(e) respecting procedures to be followed under any provision of this Act;

(f) defining any word or expression used in but not defined in this Act;

(g) generally, for the administration of this Act and for carrying out its purposes.

PART 13

TRANSITIONAL PROVISIONS AND COMMENCEMENT

Existing enforcement proceedings

101( 1) In this section, “existing enforcement proceedings” means

(a) any court proceedings to enforce a judgment that were commenced before this Act comes into force, and

(b) any order of seizure and sale or other legal process to enforce a judgment that was delivered to a sheriff before this Act comes into force.

101( 2) Existing enforcement proceedings shall continue as if this Act had not come into force.

Existing notice of judgment

102( 1) Subject to subsection (2), a notice of judgment registered under the Personal Property Security Act before this Act comes into force

(a) continues in effect for the period specified in the registration, and

(b) while it is in effect, is a registered judgment for the purposes of this Act.

102( 2) A notice of judgment referred to in subsection (1) does not continue in effect beyond the maximum period set out in subsection 22(1).

Existing memorial of judgment

103( 1) A memorial of judgment registered in the land registry before this Act comes into force

(a) continues in effect for the remainder of the five-year period provided by section 6 of the Memorials and Executions Act, and

(b) while it is in effect, is a registered judgment for the purposes of this Act.

103( 2) The judgment to which the memorial relates may be registered in the land registry either before or after the memorial expires if the judgment is still enforceable.

103( 3) If the judgment is registered under this Act before the memorial expires, the registered judgment has the same priority in relation to other interests in land that the memorial had.

Commencement

104 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.