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Small Claims Court (Ontario) Legal Guide
(20 June 2021)
Chapter 16 - Collection- Overview
- Enforceable Orders
(a) Overview
(b) Court Order or Judgment
(c) Defaulted Settlement
(d) Defaulted Terms of Payment Proposal and Terms of Payment Orders
- Court-Modification of Orders
(a) Overview
(b) R20.02 Debtor Relief
(c) Terms of Payment Order Following Debtor Examination
(d) Consolidation Orders
. Overview
. Obtaining a Consolidation Order
. Effect of a Consolidation Order
. Further Orders Against Debtor While Consolidation Order in Effect
. Termination of a Consolidation Order
(e) Tribunal Orders Filed in Small Claims Court for Enforcement
- Collection Methods
(a) Overview
(b) Garnishment
. Overview
. Notice of Garnishment
. Duties of Garnishee
. Pay-Out of Money Garnished
. Disputing Garnishment
. Garnishment Hearing
(c) Writ of Seizure and Sale of Land
. Overview
. Procedure
. Duration and Renewal
. Actual Sale
. Electronic Issuance and Filing of Writs of Seizure and Sale of Land
(d) Writ of Seizure and Sale of Personal Property
(e) Writ of Delivery
(f) Certificate of Judgment
(g) Motor Vehicle-Related Judgments
- Debtor Examination
(a) Overview
(b) Notice of Debtor Examination
(c) Financial Information Form Requirements of Individuals
(d) Debtor Examination
(e) Video Conferences
(f) Who May Be Examined
(g) Orders on Debtor Examination
(h) Contempt Proceedings for Default on Debtor Examination
- Satisfaction of Debt
- Special Situations
(a) Creditor Under Disability
(b) Enforcement Against Partnership
(c) Enforcement of Bonds
(d) Where Creditor Foreign Resident
(e) Foreign Currency Orders
(f) Social Assistance Recipients as Debtors
(g) Workplace Safety and Insurance Board payments
(h) Enforcement of Foreign Judgments
(i) Enforcement of Tribunal Orders
(j) Crown as Judgment Debtor
(k) Other Execution Issues
Note:
Readers interested in this topic may also be interested in the Isthatlegal.ca Collection Agencies Law (Ontario) Legal Guide. Also highly relevant to this topic, but not integrated into this chapter are the Creditors' Relief Act, 2010 and the Execution Act.
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1. Overview
A plaintiff can "win" their case by either judicial determination, some form of admission of liability by the defendant/s, or a settlement. But just because you have "won" your case - don't assume that the court will take over enforcement of your new rights if the debtor defaults in their obligations to you. It surprises many first-time litigants that "winning" can only be one step in a sometimes much longer (and sometimes even more expensive) path.
In the event of default, the burden of initiating and prosecuting collection efforts lies with the plaintiff (now the "judgment creditor") - not with court. Because of this it is important to understand the intricacies of the various types of orders, and of collection procedures.
2. Enforceable Orders
(a) Overview
While you may feel you have "won" you case as described above, the very first step to collection is ensuring that you have an enforceable "order" (which includes "judgments") in your hands. While this might seem too obvious to be concerned about there are some "rights" which are not immediately enforceable, and still must be converted into an "order".
First, there are several routes by which a plaintiff can arrive at an enforceable court order. These include:- court order or judgment (see Ch.9 "Default by Defendant and Ch.14: "Trial");
- defaulted settlement (see Ch.13 "Settlement");
- defaulted "terms of payment proposal" (made in a Defence pleading), or terms of payment order (from a Terms of Payment hearing) (see the Ch.8 "Pleadings");
- the filing with the Small Claims court for enforcement of the order of a non-court Tribunal [see section 6(1) below]. Such orders when filed are enforceable on their terms but in some cases are subject to court-modification (see "Court-Modified Orders" below, section 3).
(b) Court Order or Judgment
Sometimes this question is simple. If you had a trial and the court has issued a judgment, you have an order enforceable on its terms. If you have default judgment, you have an order enforceable on its terms.
(c) Defaulted Settlement
Other times the issue is not so clear. Settlements (see Ch.13 "Settlements") are not enforceable, even after default as to their terms, until the creditor makes a motion for judgment in the terms of the settlement. Another option for the creditor in this case is to continue the proceeding as if there had been no offer to settle, seeking a higher damage award [R14.06].
(d) Defaulted Terms of Payment Proposal and Terms of Payment Orders
Another situation where a "right" to payment is not immediately enforceable is where there has been a "terms of payment proposal" made in the defendant's Defence pleading (see Ch.8 "Pleadings").
The Rules provide that when a defendant makes a "terms of payment proposal" in a Defence, and the plaintiff does not dispute it by filing a "Request for (Terms of Payment) Hearing" within 20 days of receiving the proposal, then the defendant "shall make payment in accordance with the proposal as if it were a court order" [R9.03(2)a].
Be careful though: "as if" doesn't get you to an order yet. Rule 9.03(2)(b) clarifies that in the event of default by the defendant on a "terms of payment proposal" then "the clerk shall sign judgment for the unpaid balance ... on the filing of an affidavit by the plaintiff swearing to the default and stating the amount paid and the unpaid balance". So additional steps are required to convert a defaulting "terms of payment proposal" into an enforceable order.
If the plaintiff choses to dispute the "terms of payment proposal" and files a "Request for (Terms of Payment) Hearing" [R9.03(3)], then the referee or judge presiding at the terms of payment hearing may make an "order" or (if the defendant does not show up) "default judgment" resolving the issue [R9.03(5)(6)]. Such orders are enforceable on their terms.
3. Court-Modification of Orders
(a) Overview
Even when you finally have an order in hand, that may not mean you can seize that fancy yacht in the harbour just quite yet.
There are several procedures by which the enforceability of an order can be modified by the court:- R20.02 debtor relief;
- terms of payment orders following debtor examination or contempt hearing;
- consolidation orders.
(b) R20.02 Debtor Relief
On motion by a party - or on its own motion - the court may "stay" (suspend) the enforcement of an order on whatever terms it considered just, or "vary the times and proportions in which money payable under an order of the court shall be paid, if it is satisfied that the debtor's circumstances have changed." [R20.02(1)]
Where such an order is for periodic payment and in force, no enforcement steps may be commenced or continued, except the issuance and filing with the sheriff of a writ of seizure and sale of land [R20.02(2)] (see below).
If the debtor defaults on such an order for periodic payment, the creditor may seek to terminate it by [R20.02(3)]:The order for periodic payments then terminates on the 15th after the service of the Notice of Default of Payment on the debtor. Termination may be avoided if the creditor waives the default by filing a completed Form 13B: Consent to that effect [R20.02(4)]. On termination the order for periodic payment is voided and any pre-existing orders for full payment are revived (ie. the enforcement-limiting effects of R20.02(2) are ended).
(c) Terms of Payment Orders following Debtor Examination
Note the discussion of "Debtor Examinations" later in this chapter. These are methods by which a judgment creditor may obtain collection information from a judgment debtor (or other persons) to assist in satisfying any orders.
The court, after conducting an Examination for Collection (see below in the chapter) or if the debtor's consent is filed, may make a "terms of payment" order against the debtor [R20.10(7)]. While a "terms of payment" order is in force, no enforcement steps may be commenced or continued on the original order, except the issuance and filing with the sheriff of a writ of seizure and sale of land [R20.10(8)].Note:
Such orders are very similar and will in some cases be identical to orders made under R20.02 (see "R20.02 Debtor Relief", above), although the R20.02 rules address default and termination while R20.10 does not. It therefore seems likely that those R20.02 procedures would apply to similar R20.10 orders, although to my knowledge this issue has not been conclusively considered in the caselaw. For clarity, the best solution might be to - at the time of the making of the R20.10 "terms of payment" order - to request the court to expressly adopt the R20.02 procedures for termination the terms of payment order on the filing of evidence of default. (d) Consolidation OrdersTerminology Note:
Do not confuse such orders with those that "merge" two or more court proceedings for the purposes of trial, as discussed in Ch.11: "Pre-trial Proceedings: Merger". As the term is used here it refers to combining already-obtained orders for the purposes of organized payment by the debtor. . Overview
Where a creditor has a number of orders against them, the court provides a procedure known as "consolidation" to give the debtor some stability while they pay off the debts. Basically, the debtor gets protection from execution proceedings in exchange for regular payments. Such an order requires payment of monies to the court (the "consolidation account"), stays (suspends) all active collection proceedings, and distributes the payments being made between the creditors at least once every six months [R20.09(13)].
This distribution is equal amongst the creditors - NOT pro-rated or proportional: eg. If $100 received and 5 creditors, then each gets $20)) [R20.09(12)].
. Obtaining a Consolidation Order
"Consolidation orders" are obtained by motion by the debtor [R20.09(1)]. The motion shall be supported by an affidavit setting out [R20.09(2)]:- the names and addresses of the creditors;
- the amount owed to each;
- the amount of the debtor's income from all sources, and the sources thereof; and
- the debtor's current financial obligations and any other relevant facts.
The Notice of Motion and affidavit/s shall be served on all involved creditors at least seven days before the hearing of the motion, and filed with the court [R20.09(3)] (see Ch.6: "Service of Documents").
Consolidation motion hearings may be held in front of a referee (see Ch.2, s.4: "The Court: Referees"). However a referee may not make an order in the matter, but will report their findings and make recommendations to a deputy-judge or judge who then has the authority to make a consolidation order [R21.01].
A consolidation order shall [R20.09(4)]:- list the unsatisfied orders, setting out the date, court, amount ordered, and amount unpaid of the order;
- the amounts to be paid into court by the debtor under the consolidation order; and
- the times of the payments.
. Effect of a Consolidation Order
The payments into court may not be more than 20% of a person's net employment (or disability wage-replacement insurance coverage) income [R20.09(5)] [Wages Act, s.7]. A creditor may make a motion to the court to increase this percentage, and a debtor may make a motion to decrease it.
Where a consolidation order is current, no enforcement steps may be commenced or continued by any creditor named in the order, except the issuance and filing with the sheriff of a writ of seizure and sale of land [R20.09(9)].
. Further Orders Against Debtor While Consolidation Order in Effect
If a further order or judgment for the payment of money is obtained against the debtor after the making of the consolidation order, then the following applies:- where the order is for a debt incurred BEFORE the date of the consolidation order, the (new) creditor may file a certified copy of the order with the clerk, and "the creditor shall be added to the consolidation order and shall share in the distribution under it from that time" [R20.09(7)].
- where the order is for a debt incurred AFTER the date of the consolidation order, the consolidation order terminates immediately [R20.09(8)].
. Termination of a Consolidation Order
Consolidation orders terminate 21 days after default (as monies are paid into court no affidavit should be required) R20.09(10).
As well (as noted immediately above) where a further order is made against a creditor who is under a consolidation order - and if the order relates to debts incurred after the date of the consolidation order - then the consolidation order "terminates immediately" [R20.09(8)].
Where the consolidation order terminates by either default or by an order issuing for debt incurred after the consolidation order - then "the clerk shall notify the creditors named in the consolidation order [by email or mail], and no further consolidation order shall be made in respect of the debtor for one year after the date of termination." [R20.09(11-11.1)].
Thus no further action by a creditor is required to end a consolidation order. The effect of ending the consolidation order is to revive the enforceability of whatever prior orders the creditor/s have against the debtor.
If the debtor has assets or reliable known income you might expect collection efforts to become a bit of a stampede at this point - which brings us to our next main topic (see s.4 "Collection Methods", below).
(e) Tribunal Orders Filed in Small Claims Court for Enforcement
Authority for filing administrative tribunal orders in the courts for enforcement lies in the Statutory Powers Procedures Act (SPPA)(s.19), which provides that:SPPA 19(1)
A certified copy of a tribunal’s decision or order in a proceeding may be filed in the Superior Court of Justice by the tribunal or by a party and on filing shall be deemed to be an order of that court and is enforceable as such. Procedures for doing this are discussed in more detail in the Isthatlegal.ca Administrative Law (Ontario)(SPPA) Legal Guide, Ch.8 Enforcement. However the wording of the provision (ie. "deemed to be an order of that court") seems to make administrative orders, when filed with the court, subject to the full range of court-modifications discussed in this section: periodic payment orders, stays, terms of payment orders - and subject to the consolidation provisions as well.
4. Collection Methods
(a) Overview
When a debtor does not comply with the terms of an order - AND when execution (ie. formal enforcement) is NOT otherwise barred by court-modifications to the order (as discussed in section 3 above) THEN then a creditor may use the following formal execution procedures to obtain their money [R20.03]:- writ of seizure and sale of land;
- writ of seizure and sale of personal property;
- writ of delivery;
- notice of garnishment (of debts owed to the debtor).
Once at this stage, the judgment creditor need not make any additional formal demands of the judgment debtor before the collection efforts discussed in this chapter may be commenced.
All of the following methods of collection are commenced by the submission of (1) a completed Writ or Notice (depending on the method chosen) and (2) a supporting affidavit which sets out the amount still owing and other details necessary to facilitate execution.
Forms for all of these are provided and linked below in the discussion of each collection method. Computer print-outs of these are accepted by the court.
No execution may be performed on a Sunday, unless the court specifically so orders [CJA s.124].
Persons involved in execution of collection process (which include court clerks, bailiffs and sheriffs) are protected from liability for "any act done in good faith in accordance with an order or process of a court in Ontario" [CJA s.142].
Where enforcement must be done in a different jurisdiction, the court order may have to be effectively "transferred" to another court by obtaining and filing with that new court a "certificate of judgment" (discussed below).
Be sure to review section 6 "Special Situations" carefully to determine if the circumstances of your situation invoke any special rules dealing with collection. Section 6 is not exhaustive, there may be other restrictions that apply.
(b) Garnishment
. Overview
Garnishment is a procedure for seizing money owed to the debtor [R20.08(1)] by a third party (the "garnishee"). Payment is made to the court clerk who then distributes it to the creditor/s.
Probably the most common garnishment is against the debtor's bank account/s. However garnishment against a bank account must be made at the particular branch where assets are held, not the head office: [Bank Act, s.462]. This is one reason why any information (especially the plaintiff's copies of cashed cheques) about where the debtor banks can be crucial.
The next most common form of garnishment is against wages. A garnishment may not take more than 20% of a person's net employment (or disability wage-replacement insurance coverage) income [R20.08(9)] [Wages Act, s.7]. A creditor may make a motion to the court to increase this percentage, and a debtor may make a motion to decrease it.
Garnishment must be conducted in a jurisdiction or territorial division of the court where the debtor resides or carries on business [R20.08(3)]. If the order was made in another territorial division, a "Certificate of Judgment" from that court shall also be filed in the "collection" court (see below).
. Notice of Garnishment
"Notices of Garnishment" are obtained by the creditor filing an affidavit with the court clerk (in the territorial division in which the debtor resides or carries on business), who then issues the Notice [R20.08(4)].
Form 20P: Affidavit for Enforcement Request
Form 20E: Notice of Garnishment
If it has been more than six years since the original order was made, or if the enforcement of the order is subject to any conditions, then issuance of a Notice of Garnishment requires leave (permission) of the court, obtainable on motion. That leave is good for one year, and if no Notice of Garnishment is issued within that time, then leave must be re-obtained [R20.08(2.1-2.2)].
Each Notice of Garnishment shall name only one debtor and one garnishee [R20.08(5)]. The affidavit shall name one debtor and one garnishee and state [R20.08 3)]:- the date and amount of the order;
- the territorial division in which the order was made;
- the rate of postjudgment interest payable;
- the total amount of any payments received since the order was granted;
- the amount owing, including postjudgment interest;
- the name and address of the garnishee to whom a notice of garnishment is to be directed,
- the creditor's belief that the garnishee is or will become indebted to the debtor, and the grounds for the belief;
- any particulars of the debts that are known to the creditor.
The Notice of Garnishment shall be served by the creditor (for acceptable methods see Ch.6 "Service of Documents") on [R20.08(6)]:If the garnishee is a financial institution, the Notice of Garnishment and all further notices shouldbe served at the branch at which the account of the debtor is held [R20.08(6.2)].
. Duration and Renewal of Notice of Garnishment
Notices of Garnishment and renewals are good for six years from their issuance [R20.08(5.1)].
A Notice of Garnishment may be renewed before it's expiration, or the expiration of any renewal, by filing with the clerk a Notice of Renewal of Garnishment and an Affidavit for Enforcement Request [R20.08(2.3, 5.2, 5.3)]:
Form 20P: Affidavit for Enforcement Request
Form 20E.1: Notice of Renewal of Garnishment
. Duties of Garnishee
The garnishee is required to pay to the clerk of the court any debt, up to the amount shown in the Notice of Garnishment, "within 10 days after service of the notice on the garnishee or 10 days after the debt becomes payable, whichever is later" [R20.08(7)]. The garnishment applies to debts of the garnishee which are current at the time of service of the Notice of Garnishment, and those payable for six years after it's issuance [R20.08(8)].
If the garnishee fails to make full payment AND ALSO fails to file a Garnishee's Statement explaining the failure (see below) the creditor is entitled to an order against the garnishee personally for the debt owed, unless the court orders otherwise [R20.08(17)]. The Rules do not state whether this order is available over-the-counter (likely) or by way of motion, so inquire of your local court as to their practice.
Once a Notice of Garnishment is served, the garnishee MUST ONLY pay the monies to the court clerk in order for it to be applied to reduce the debt between them and the debtor - if it is paid to anyone else (especially to the debtor directly) it does not reduce the debt [R20.08(18)(19)].
. Pay-Out of Money Garnished
Once proof of service on the debtor of the Notice of Garnishment is filed, payments received by the clerk will be distributed [R20.08(20)] unless:- the garnishment is disputed by way of a Garnishment Hearing (below);
- a motion has been made to set aside the consequences of default for failure of service [R8.10] (see Ch.6, s.7 "Service of Documents: Document Failing to Come to Notice of Party Served");
- a motion has been made to set aside default and/or collection proceedings [R11.06] (see Ch.9 "Default by Defendant: Motion to Set Aside Default Proceedings");
- a request has been made for a clerk's order on consent to set aside default and/or collection proceedings [R11.2.01(1)iii] (see Ch.9, s.11 "Default by Defendant: Procedural Changes on Consent");
- a motion has been made for a new trial [R17.04] (see Ch.13, s.8 "Trial: New Trial").
The clerk shall distribute the first payment 30 days after it is received by the clerk, and thereafter as received [R20.08(20.1)].
However, where more than one creditor has requested and been issued garnishments against the same debtor, any payments received shall be distributed equally (ie. arithmetically divided by the number of creditors, NOT pro rata) amongst those creditors [R20.08(10)].
When the full amount owing under an order that is being enforced by garnishment is paid, the creditor shall immediately serve a Notice of Termination of Garnishment on the garnishee, and on the clerk [R20.08(20.2)]:
Form 20R: Notice of Termination of Garnishment
. Disputing Garnishment
Where the garnishment involves debts that have been assigned (ie. sold), encumbered(ie. put up as security), or co-owned by the debtor with other/s (ie. owed by the garnishee to the debtor and other/s jointly), procedures get complicated. Read the following very carefully.
Where the monies owed to the debtor are owned jointly by the debtor and one or more co-owners, then the one-half of the debt owed to the debtor - or such other amount as the court may order - may be garnished [R20.08(2)]. In this case the creditor should not seek more than this proportion of the debt as it will likely lead to problems.
Where however a garnishee disputes the garnishment or pays less than the amount they are alleged to owe the debtor (as stated in the Notice of Garnishment) because the garnishee's debt is co-owned by the debtor and other/s, they shall file with the court a "Garnishee's Statement" within 10 days after being served with the Notice of Garnishment - and serve the Garnishee's Statement on both the creditor and the debtor [R20.08(13)]. A Garnishee's Statement should explain the circumstances of the underpayment or the reasons for the dispute [R20.08(11)(12)].
Form 20F: Garnishee's Statement
If a creditor is served with a Garnishee's Statement alleging that the debt is co-owned by the debtor and one or more co-owners, then the creditor so served shall serve any co-owner/s of the debt a "Notice to Co-Owner of Debt" and a copy of the "Garnishee's Statement" [R20.08(14)].
Form 20G: Notice to Co-Owner of Debt
Where a "Notice to Co-Owner of Debt" has been served, and no dispute has been made by way of a request for a Garnishment Hearing within 30 days (see below), a payment made under the garnishment of a co-owned debt to the clerk may only be paid out to the creditor if they file, within a FURTHER 30 days after the expiry of the time for requesting a Garnishment Hearing [R20.08(21)]:- proof of service of the Notice to Co-owner of Debt; and
- an affidavit stating that the creditor believes that no co-owner of the debt is a "person under disability", and the grounds for the belief. (to explain this term, see the chapter: "Parties"). If the person swearing such affidavit does not have direct knowledge of the status of the co-owner of the debt, then they may swear as to their "information and belief, if the source of the information and the fact of the belief are specified in the affidavit." [R20.08(22)]
Failing this, the monies paid over will be returned to the garnishee by the clerk [R20.08(23)].
Got that? I told you to pay attention.
. Garnishment Hearing
To resolve complications that arise where the debt alleged to be owed to the debtor is co-owned, assigned (eg. sold to a third party and thus no longer the 'property' of the debtor) or encumbered (eg. put up as security by the debtor for a loan, and thus subject to the interests of the lender) the court can conduct a Garnishment Hearing.
The creditor, debtor, garnishee, co-owner of debt, or any other person with a legal interest may "request" the court to hold a Garnishment Hearing [R20.08(15)]. A person served with a "Notice to Co-Owner of Debt" must make this request within 30 days after service of such notice [R20.08(16)].
On such request, the clerk will provide the requesting party with a time and place for the Garnishment Hearing, who must then complete and serve Form 20Q: Notices of Garnishment Hearings on the creditor, debtor, garnishee, co-owner of debt (if any), and any other interested person [R20.08(15.1); R8.01(9)]. For acceptable manners of service see Ch.6 "Service of Documents".
At a Garnishment Hearing the court may [R20.08(15.2)]: - if it is alleged that the garnishee's debt to the debtor has been assigned or encumbered, order the assignee or encumbrancer to appear and state the nature and particulars of the claim;
- determine the rights and liabilities of the garnishee, any co-owner of the debt, the debtor and any assignee or encumbrancer;
- vary or suspend periodic payments under a notice of garnishment; or
- determine any other matter in relation to a notice of garnishment.
(c) Writ of Seizure and Sale of Land
. Overview
A Writ of Seizure and Sale of Land commences the long and expensive process towards actually selling real estate. While this process may be initiated on the basis of Small Claims court orders, it is rare for it to continue all the way to actual auction sale of the real estate. It's usual most effective function is to be registered on the title of the property (through the sheriff's office), after which it acts like a lien on the property. Any prospective purchaser of the property will want to have the writ discharged (ie. paid off) because if they buy the land with the lien on it they effectively assume the debt.
. Procedures
A Writ of Seizure and Sale of Land may be issued by the clerk on request of the creditor and supported by an affidavit stating the amount owing [R20.07(1)].
Form 20P: Affidavit for Enforcement Request
Form 20D: Writ of Seizure and Sale of Land
For all purposes other than it's duration and renewal (see below), writs of seizure and sale issued by the Small Claims Court are thereafter entirely governed by the Rules of Civil Procedure (primarily R60.07) [R20.07(2)].
Note that a Writ of Seizure and Sale of Land is the only method of collection that may be continued (by filing it with the sheriff only - not by actual sale of the land) in the face of court-modifications made to orders such as R20.02 debtor relief orders (above), consolidation orders [R20.09(9)], and "terms of payment orders" made pursuant to a debtor examination [R20.10(8)].
The Writ should be filed with the sheriff of the municipality where the debtor owns land. The creditor should at the same time request in writing that the sheriff register the Writ in the real property register/s within the sheriff's jurisdiction(both "Land Titles" and "Registry" - to be safe). As noted, a writ so registered acts as an "encumbrance" on the real estate, equally effective against subsequent purchasers.
If it has been more than six years since the original order was issued, issuance of a Writ of Seizure and Sale of Land requires leave (permission) of the court [R20.07(1.1)]. That leave is good for one year, so if no Writ is issued within that time leave must be re-obtained [R20.07(1.2)].
. Duration and Renewal
A Writ of Seizure and Sale of Land is good for six years from issuance.
They are renewable - before expiration - for further six year periods by filing a request with the sheriff to do so [R20.07(3)(4)] using Form 60E under the Rules of Civil Procedure, or Small Claims Court Form 20N:
Form 60E: Request to Renew (Rules of Civil Procedure)
Form 20N: Request to Renew a Writ of Seizure and Sale (Rules of the Small Claims Court)
. Actual Sale
As mentioned, once any legal impediments are removed, it is possible to actually arrange for the sale of the land, but the process for this can be expensive and is only worthwhile if there is sufficient equity (ie. net value after other creditors are paid off) in the property to ensure that the creditor's debt and the expenses associated with the sale will be paid off.
Procedure for writs of seizure and sale are governed by R60 of the Rules of Civil Procedure [R20.07(2)]. They must be renewed with the sheriff every six years [RCP R60.07(6)].
It is beyond the scope of this Legal Guide to explore this procedure fully. Inquire at your local sheriff's office.
. Electronic Issuance and Filing of Writs of Seizure and Sale of Land
An electronic issuance and filing pilot project was started by the court in 2014. It is explained generally in Ch.6, s.9 'Service and Filing: Electronic Issuance and Filing of Documents'.
Under the pilot project lawyers, paralegals and others "who ha(ve) filed a requisition with the clerk to provide for the electronic filing and issuance of documents in relation to the enforcement of an order" may now electronically file (and have electronically issued) a request to issue a writ of seizure and sale of land. In such case no Affidavit for Enforcement Request (Form 20P) is required [R20.07(1.3, 1.4)].
(d) Writ of Seizure and Sale of Personal Property
Be careful to distinguish this form of execution from the Writ of Delivery (below), which deals with the return of specific personal property. The Writ of Seizure and Sale of Personal Property seizes the property in order to sell it to satisfy a debt owing - in the same fashion that a Writ of Seizure and Sale of Land is meant to operate.
A Writ of Seizure and Sale of Personal Property is obtained at the creditor's request, supported by an affidavit stating the amount still due.
Form 20P: Affidavit for Enforcement Request
Form 20C: Writ of Seizure and Sale of Personal Property
If it has been six years or more since the order which is being enforced was made, issuance of a writ of seizure and sale of personal property requires leave of the court, obtained on motion (see Ch.11 "Motions and Procedural Changes") [R20.06 (1.1)]. If such leave is obtained, and no writ is issued within one year, the leave expires and must be re-obtained [R20.06(1.2)].
The Writ is issued by the clerk to the court bailiff who, once the creditor requests enforcement by filing a Form 20O: Direction to Enforce Writ of Seizure and Sale of Personal Property must enforce it "for the amount owing, postjudgment interest and the bailiff's fees and expenses" [R20.06(1,4)].
The Writ does not specify which personal property of the debtor is to be seized and the bailiff will use their judgment about what property is required to satisfy the judgment.
The Writ shall state the creditor's name, address and phone number (and those of representative, if any) [R20.06(1.3)]. The Writ is good for six years from issuance, renewable - BEFORE its expiration - for further six year periods by filing a request with the bailiff to do so [R20.06(2)(3)]:
Form 20N: Request to Renew a Writ of Seizure and Sale
On request of the debtor or "someone acting on the debtor’s authority", the bailiff shall deliver an inventory of the property seized within a reasonable time [20.06(5)].
Sale of the seized property by the bailiff may occur only after notice of the time and place of the sale has been [R20.06(6)]:- mailed, at least 10 days before the sale, to the creditor at the address shown on the writ or to the creditor's representative, and to the debtor at their last known address;
- "advertised in a manner that is likely to bring it to the attention of the public."
Use of this technique to satisfy a judgment can be complicated. Often personal property is "encumbered" by such things as personal property security registrations (eg. where property is bought "on time" or subject to "chattel mortgages") or subject to exemption from collection under the Execution Act [see below, s.6(j): "Other Execution Issues"]. Often such property in the hands of a debtor is only "possessed" (not "owned") by them under conditional sales agreements which only give ownership when the final term payment is made. It is preferrable to proceed in this fashion only when the personal property is known to be held "free and clear".
Further, the bailiff will usually require a substantial deposit (varying in each case) to cover their expenses in travel, seizure, storage and auction.
(e) Writ of Delivery
Recall that the Small Claims Court has remedial jurisdiction to order the delivery of personal property (other than money) up to a value of $25,000 (see Ch.3: "Jurisdiction") [CJA s.23(1)(b)]. Such an order, if obtained, is enforced by the issuance of a "Writ of Delivery" by the court to a court bailiff, who tries to compel the delivery of the personal property as per the court order (note: the order and writ are two separate stages).
Writs of Delivery are meant to seize particular property to return it to its' rightful possessor (usually - but not necessarily - the "owner"). Be careful to distinguish this form of execution from the Writ of Seizure and Sale of Personal Property (above), which deals with the seizure for sale of personal property in order to sell it to satisfy a money debt owed.
Issuance of a Writ of Delivery must be requested by the creditor, supported by an affidavit of the person entitled to delivery (typically the plaintiff) or "someone acting on that person’s authority" (typically their legal representative) stating that the property has not yet been delivered [R20.05(1)].
Form 20P: Affidavit for Enforcement Request
Form 20B: Writ of Delivery
If execution of the writ of delivery is unsuccessful the plaintiff may make a motion to the court for an order for seizure of other personal property of the defendant [R20.05(2)]. In this case, and barring any court order otherwise, any personal property seized will be held by the bailiff pending further order of the court as to its disposition [R20.05(3)]. Such seizures are an interesting and unusual form of what is essentially property "hostage-taking".
The plaintiff is responsible for paying the bailiff's storage costs as required in advance, failing which the seizure shall be deemed to be abandoned [R20.05(4)].
(f) Certificate of Judgment
As a practical matter, most collection efforts are conducted in the territorial division of the court where the judgment debtor has "resides or carries on business" for the simple reason that the enforcement officers: bailiffs and sheriffs only have a local jurisdiction and the debtor's assets are usually in the same area where they live or work.
However when sought-after assets (ie. real or personal property) are in other territorial divisions, then (with some exceptions) it may be necessary to "transfer" the judgment or order to another court office for enforcement purposes. Note however that garnishments (eg. against wages and bank accounts) which are always done in the territorial division of where the debtor "resides or carries on business" [R20.08(3)], and debtor examinations which are conducted in the territorial division where the debtor or witness "resides or carries on business" [R20.10(1)].
Certificate of judgment in motor vehicle damages cases may also be useful when filed with the Registrar of Motor Vehicles (see below).
Transferring a judgment for the purposes of collection is done by obtaining and filing with the "collection" court a Certificate of Judgment [Form 20A], which when filed in the new court in effect transfers the judgment to that court.
A certificate of judgment may only be obtained after default by the debtor on an order for the payment of money. It is obtained by the creditor from the court clerk by filing with the clerk an affidavit setting out the amount of money still owing [R20.04(1)].
Form 20P: Affidavit for Enforcement Request
A certificate shall state [R20.04(2)]:- the date and amount of the order;
- the postjudgment interest rate applicable;
- the amount owing, including postjudgment interest.
(g) Motor Vehicle-Related Judgments
Unsatisfied damage judgments against motor vehicle drivers and owners (who have consented to the driver using their vehicle) relating to negligence in the "operation" of a motor vehicle may be enforced by filing a "certificate of judgment" (immediately above) with the Registrar of Motor Vehicles. This results in the suspension of (and ban on renewing of) their driver's license/s until the debt is cleared [s.192, 198 Highway Traffic Act].
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