The New Brunswick Judgment Enforcement Act: has its time finally come?
4.2.3 Priority of an enforcement charge
Contrary to other provinces, there is no need for a substantive
reform of the law governing priorities in New Brunswick, since:
“when New Brunswick adopted its PPSA, reform of judgment
enforcement law was in the air, enabling it to take the next logical
step in the evolution of the law governing priority between judgment
creditors and secured parties”. (142) Although a review of the
current law on security interests and their interaction with other
interests or encumbrances on the debtor’s property may be
appropriate given that the PPSA already dates back to 1995, an in-depth
analysis of the priority schemes contemplated by the PPSA and the Land
Titles Act is beyond the scope of this research project and the authors
are not aware of any major issues in need of reform.
The law in New Brunswick currently provides that an enforcement
charge created by the registration of a judgment has the same priority
in relation to both prior and subsequent interests in the judgment
debtor’s property charged as a perfected security interest, other
than a PMSI, as defined by the PPSA. (143) This rule, which is present
in all legislative reforms on judgment enforcement law in the country,
should continue to guide the NBJEA’s priority scheme.
As a result, unlike other provinces, the NBJEA and the rules for
determining priority between an enforcement charge and other interests
in the judgment debtor’s property can be modeled on the provisions
of the province’s current objectives of the Creditors’ Relief
Act and the legislative provisions of the PPSA and the Land Titles Act,
thereby easing the implementation of the NBJEA in the province. It is
the opinion of the authors that these enactments provide for effective
methods of determining priority among encumbrance holders. Given the
case with which New Brunswick can streamline all three legislative
regimes dealing with security interests and their enforcement, it is
recommended that the NBJEA make the priority rules of the PPSA and the
Land Titles Act, which are applicable in determining the priority of a
perfected security interest, applicable to determining the priority of
an enforcement charge created in relation to other security interests
except as otherwise provided in the NBJEA. (144)
Notwithstanding the goal of consolidation and simplification, a new
judgment enforcement process should have a set of clearly established
rules to govern priorities of enforcement charges in a judgment
debtor’s property. (145) Reference to applicable legislation, such
as the PPSA, should be clearly established in the NBJEA, as has been
done in the Saskatchewan Act. (146) The importance of this consolidation
of rules is further apparent when one considers that the rights of
secured and non-secured creditors are subject to the statutory
priorities of preferred creditors originating in several legislative
enactments. (147) As a result, the determination of priority ranking for
judgment creditors in New Brunswick remains an endeavour requiring the
reconciliation of several pieces of legislation all enacted for varying
The authors therefore advance once again the 1976 recommendation
any statutory priorities which do exist, like the existing priorities of employees and landlord, be incorporated [... in the judgment enforcement legislation] to show clearly their relationship to the distribution of moneys under the Act, and that the provision be made to ensure that such priorities are not affected by the person entitled to priority delivering [of a Notice of Enforcement.] (148)
Such an approach is found in the Saskatchewan Act, which
specifically provides that an enforcement charge is subordinate to a
landlord’s right of distress exercised before the enforcement
charge came into existence. (149)
Although the PPSA also establishes the priority of liens (150), of
PSMIs (151) and of buyers and lessees of the judgment debtor’s
property in the ordinary course of business (152), these should be
fine-tuned in the NBJEA to provide for enforcement charges. In addition,
several interests will need further examination to be adapted to the
NBJEA, such as future advances (153), fixtures and growing crops (154)
as well as negotiable instruments and chattel paper. (155)
It is further recommended that the NBJEA follow–albeit with a few
modifications (156)–the guiding principle of collective enforcement,
leading to the proportional sharing among judgment creditors. This
principle is expressed by the statutory rule that nothing in the
relevant part of the NBJEA dealing with priorities creates a priority
between or among enforcement charges. (157) As a result, subject to
certain allowed costs and preferences, the balance of a distributable
fund is distributed among all eligible claims on a pro rata basis. A
lack of priority between judgment creditors is a just and equitable
approach to distribution given the economic and physical realities faced
by judgment creditors in completing the judgment enforcement process.
Departure from a sharing system does not appear to be warranted and the
sharing system offers many benefits: (158)
a) Because delay in initiating enforcement proceedings is less
likely to prejudice the priority of creditors’ claims under a
system of pro rata distribution, creditors may be encouraged to extend
additional time to debtors for the payment of their debts.
b) Pro rata distribution may reduce the incentive of creditors to
petition a debtor into bankruptcy as a means of attaining a pro rata
sharing of a debtor’s assets. Because of the high up-front costs
that creditors must incur to petition a debtor into bankruptcy, this is
not an economically viable option for creditors with relatively small
claims to attain pro rata distribution.
c) Having been a hallmark of creditors’ relief legislation in
Canada for one hundred years, pro rata distribution has been reaffirmed
in the enactment of modern judgment enforcement legislation.
While it may be appropriate to reward secured creditors for their
initiative in registering a security, this concept of reward does not
correspond with the varying realities faced by judgment creditors in
completing the judgment enforcement process. Some judgment creditors may
face years of litigation to obtain a minimal award while other judgment
creditors may easily obtain a default judgment on issues of complex law
simply due to the fact that the defendant did not have the material and
physical resources to defend the claim. It is thus inappropriate to
assign priorities between these two sets of encumbrance holders based on
The NBJEA will therefore need to address the priority relationships
among interests in seized property, in particular between enforcement
charges and security interests. Under current judgment enforcement law,
as well as the recommended rule for the NBJEA, the priority of
intervening secured creditors is preserved notwithstanding the absence
of priority among enforcement charges. As explained by the ULCC:
“if a security interest in property is registered after the
creation of an enforcement charge and a subsequent enforcement charge is
created after the registration of the security interest, the security
interest is not subordinate to the second enforcement charge merely
because it is subordinate to the first enforcement charge”. (159)
Nonetheless, an interest in property that is subordinate to an
enforcement charge is subordinate only to the extent of the amount
recoverable under the judgment to which the enforcement charge relates
at the time enforcement proceedings are taken against the property.
4.2.4 Initiation of the enforcement process–Notice of Enforcement
Although the current scheme of support and maintenance orders
provides for automatic enforcement procedures as soon as the order or
agreement takes effect, the same policy reasons do not apply to the
enforcement of civil judgments. In fact, there is an overwhelming
consensus that the initiation of an enforcement procedure should require
some positive step by judgment creditors. According to section 40 of the
Uniform Act, a “judgment creditor who wishes to initiate an
enforcement proceeding must deliver an enforcement instruction to an
enforcement officer” and “identify the enforcement proceedings
that the enforcement officer is requested to undertake”. Similarly,
the Saskatchewan Act further requires “a description of property
known or believed by the judgment creditor to be property of the
judgment debtor, and the location of that property” along with a
registry search and specified serial numbers of any goods to be seized.
(161) Under these enforcement systems, the enforcement officer is not
required to implement any enforcement measures unless the sheriff has
received proper enforcement instruction according to these acts. (162)
In addition, an enforcement officer is authorized to refrain from taking
an enforcement proceeding until he or she receives a satisfactory
undertaking or security for the payment of the enforcement
officer’s fees and estimated expenses relating to the enforcement
proceeding, unless the court orders otherwise. (163)
Notwithstanding the creditor-driven approach of the Uniform Act, an
enforcement officer may decline to undertake an enforcement proceeding
should the enforcement instruction be contrary to the Actor a court
order, or if it cannot be undertaken in good faith and in a commercially
reasonable manner. (164) In the Saskatchewan Act, a sheriff may refuse
to proceed as instructed if the requested measure is not commercially
“reasonable or practicable”, is “not permitted by
law” or if all of the requirements of the Act have not been met.
(165) As commented by Cuming: “[t]o use a method of enforcement
involving high costs that produces little or nothing to be applied to
the judgment would be to act in a commercially unreasonable
The enforcement officer is therefore not bound to enforce the
judgment in the manner requested by the judgment creditor, and it seems
the enforcement officer possesses significant scope to determine the
appropriate enforcement measure, if any. (167) In practice, however,
unless the enforcement instruction is invalid or will not yield any
recovery beyond enforcement costs, the officer will most likely proceed
as instructed. The legislative provisions as drafted in the Saskatchewan
Act and the Uniform Act limit the enforcement officer’s discretion.
In the event there is a more efficient enforcement measure which may
have a lesser impact on the judgment debtor and may have been even
negotiated with the debtor, the officer may not be able to act without
the judgment creditor’s consent.
On a procedural level, the contemplated initiation process does not
differ substantially from the current enforcement system in place in New
Brunswick. Notice must be given in both cases, either by the current
Order for Seizure or Sale or the proposed enforcement instructions.
Judgment creditors must still investigate the judgment debtor’s
situation and current assets at their own expense in order to determine
appropriate enforcement proceedings and instruct the enforcement officer
accordingly. Moreover, an undertaking or security must still be provided
and the judgment creditor remains liable for the sheriff’s costs
incurred in connection with the requested enforcement measure.
As a result, if the related provisions of Uniform Actor the
Saskatchewan Act are enacted in New Brunswick, the current dysfunctional
creditor-driven system will remain in place. A completely new approach
is therefore recommended. Although all reformed judgment enforcement
systems, as well as the Uniform Act, provide that the judgment creditor
not only initiate but control, contribute to and remain involved in the
process, it has been previously recommended that, with the exception of
initiating the enforcement proceeding, the creditor’s detailed
involvement should be optional. To fill this void, the NBJEA should
institute an enforcement office to coordinate and supervise all
enforcement activities in the province. This office should be given
broad discretionary powers in order to tailor enforcement measures that
meet the requirements of individual situations. (168)
Under the NBJEA, the enforcement officer’s role and authority
should be described as follows:
[u]nless otherwise provided in another enactment, an enforcement officer has the power and authority to undertake enforcement proceedings [... upon the filing of a Notice of Enforcement] with respect to property located anywhere in the province/territory without the need for further authority from the court. (169)
Similar to the enforcement instruction under the Uniform Act, the
Notice of Enforcement required under the NBJEA should contain
information fields that will call upon the judgment creditor to provide
the following types of information to the extent that they are known to
the judgment creditor: the name and address of the judgment creditor,
the current address and name as it appears on the judgment of the
judgment debtor, the existence and amount recoverable on the judgment
and the desire of the judgment creditor to have the judgment enforced as
well as a description and location of exigible property of the judgment
Notwithstanding this wide discretionary power yet respecting the
optional creditor control principle, the Notice of Enforcement would
enable the initiating judgment creditor to recommend a specific
enforcement strategy. Nevertheless, even when specific enforcement
instructions have been received by the judgment creditor, the NBJEA
should provide the enforcement officer with the authority to analyse the
judgment debtor’s individual situation, as well as the expected
enforcement costs, and determine the most appropriate and efficient
enforcement measure for all parties involved–especially in the case of
a cooperative judgment debtor. In other words, without a court order an
instructing judgment creditor will only be able to recommend an
appropriate course of action to the enforcement officer, rather than
dictate the proceeding.
Considering the enforcement officer’s expertise, experience
and resources, it is believed that in most cases the enforcement officer
will determine the best enforcement strategy to satisfy the amount
recoverable. In addition, as is currently the case with the Support
Enforcement Office, the enforcement officer may have a better and more
accurate portrait of the judgment debtor’s financial situation than
a judgment creditor. It is also expected that most unsophisticated
creditors or creditors with limited resources will rely on the expertise
and experience of the enforcement office.
The proposed discretion given to the enforcement officer under the
NBJEA is also recognized by the ULCC’s comment that: “a
judgment creditor may give an enforcement instruction that instructs the
enforcement officer to utilize whatever enforcement proceedings are
necessary to satisfy the amount recoverable”. (171) However, the
mandatory terminology used in the Uniform Act seems to negate this
possibility. It is therefore recommended that the NBJEA expressly
provide that the enforcement officer may proceed with any enforcement
measure that he or she determines to be the most efficient and equitable
for all parties involved in the circumstances unless the judgment
creditor provides another commercially reasonable and practicable
enforcement alternative pursuant to the judgment creditor’s
The enforcement officer would, however, be required by the Act to
inform the judgment creditor of the intended enforcement measure and, if
a judgment creditor’s appropriate and valid enforcement
instructions were declined by the enforcement officer, the judgment
creditor could then apply to the court for an order directing the
enforcement officer to undertake a specific enforcement proceeding.
Given the expertise developed within a central co-ordinated office,
the accuracy and accessibility of updated information on judgment
debtors and the enforcement officer’s wide discretion to implement
the most efficient and effective enforcement strategy, it is recommended
that the current requirement to provide an undertaking or security for
costs prior to enforcement be eliminated. The NBJEA would follow the
current practice in Newfoundland where there is no obligation to provide
security prior to enforcement. The NBJEA should nevertheless authorize
the enforcement officer to request security for costs in the event that
the only enforcement strategy possible represents elevated risks that
proceeds may not cover enforcement costs. The enforcement officer must
evaluate the financial risks as well as the interests of the judgment
creditors, the judgment debtor and affected third parties. However, in
order to protect the judgment debtor, enforcement costs and fees should
be prescribed by regulation and judgment creditors could only recover
from the judgment debtor the prescribed amount unless ordered otherwise.
The remaining elements of enforcement initiation proposed in the
Uniform Act should be incorporated into the NBJEA. These elements
include: reporting by the enforcement office to the judgment creditor;
protection of the judgment creditor from any liability arising from the
enforcement proceedings; required renewal of the enforcement
instructions after 24 months; and the continued obligation of the
judgment creditor to provide the enforcement office with any new
information or developments affecting the parties. (173)
4.2.4 Obtaining disclosure
Sadly, debtors often refuse to disclose their financial situation
and their assets. (174) As a result, enforcement measures to obtain
disclosure are essential tools for the judgment creditor and the
enforcement officer in deciding whether to undertake further enforcement
measures. In order to choose the most effective remedy, an enforcement
officer, or a judgment creditor providing enforcement instructions, must
first determine whether the debtor has any exigible assets that can be
seized. It is also important to discover whether the debtor has
transferred any assets and, if so, to whom. In the event a debtor has
transferred assets, it may be necessary to initiate additional court
proceedings in order to have the transfer or assignment declared
Measures compelling disclosure must be incorporated in the NBJEA,
whether in the Act itself or in the form of a regulation. This
recommendation is supported by the Alberta Law Reform Institute, which
examined in 2004 the province’s rules of procedure and determined
that the debtor examination rules should be included either in the
judgment enforcement legislation or in its regulations. (176) As a
result, several regulations of the Alberta Act deal specifically with
debtor disclosure. (177)
Nevertheless, how to obtain this information remains a challenge.
Judgment creditors have essentially four sources of information
available to them in order to gather information on the debtor. (178)
First, the judgment creditor may have personal knowledge of the
debtor’s financial affairs. Second, a search could be performed in
the public registries. The remaining two options involve the examination
of the judgment debtor or a third party. Although the first option is
outside the formal structure of a system of enforcement, the last three
sources of information are essential to an effective judgment
enforcement system and must be included in the NBJEA.
Without the judgment debtor’s cooperation, public registries
form one of the best sources of information. It is therefore recommended
that the NBJEA provide the enforcement officer the same authority given
to the Director pursuant to the Support Enforcement Act (179). Pursuant
to this Act, the Director can demand information from anyone about a
payer’s location, contact information, salary, employment, assets,
or any other information that is considered necessary to enforce the
Furthermore, it is recommended that the NBJEA adopt an approach
similar to that found in the Newfoundland Act, which allows the judgment
creditor to choose the disclosure remedy more suited to the
circumstances rather than compelling the creditor to follow mandatory
steps, as is the case under the Saskatchewan Act. Such a model as the
latter appears inflexible and would create additional delays and
expenses for the creditor. The proposed system would thus have the
flexibility required to promote efficiency and limit enforcement costs
for the benefit of all parties involved.
Even though an examination might be necessary in certain
circumstances, this method entails added costs and time for all parties
involved. As such, a questionnaire has been suggested as an intermediate
step. Although it has been embraced in other jurisdictions, there is no
consensus in New Brunswick on the use of this additional method for
determining a debtor’s financial affairs. Initially rejected by the
New Brunswick 1976 Report, the use of a questionnaire was recommended in
1985 (180) and rejected again in 1994 when a voluntary written
questionnaire was proposed instead. (181)
According to the Alberta 1991 Report, the proposed questionnaire
raises several problems, including the likelihood that debtors would
ignore such a questionnaire or that the information provided by the
debtor would be incomplete. Creating a standardised questionnaire that
covers every situation is either impossible or is likely to be too
complicated for a great number of debtors. In sum, the questionnaire
could be just as frustrating as the present system of forcing a debtor
to attend an examination. Nevertheless, the benefits of questionnaires
are recognized: they would eliminate the need for oral examination in
the majority of cases; information would be acquired more quickly; and
information obtained by questionnaire would be easier to share with
creditors than examination transcripts, which are expensive, voluminous
and may be difficult to acquire. (182)
Given these important advantages, governments in Saskatchewan,
Newfoundland and Alberta, as well as the Uniform Act, all contemplate
the use of questionnaires or financial reports as initial measures to
obtain judgment debtor disclosure. (183) Moreover, New Brunswick has
also adopted the use of a financial statement in the Support Enforcement
Act as prescribed by regulation. (184)
A questionnaire represents the opportunity for the judgment debtor
to cooperate and to offer up full disclosure in order to avoid an oral
examination. (185) With this information the enforcement officer and the
judgment creditors can then decide not only whether enforcement actions
are justified but which enforcement strategy would be the most effective
for all interested parties. (186) If necessary, an enforcement officer
or a judgment creditor should be allowed to ask for further information
or particulars from a person having completed a questionnaire. (187)
Supplemental instructions could be available online–via Service New
Brunswick’s website, for example–to help with the completion of
the form. The adoption of these modifications would undoubtedly improve
the efficiency of the system. (188)
The Nova Scotia discussion paper acknowledges that, absent a
mandatory mechanism, a judgment debtor may delay payment of the judgment
without penalty other than interest, forcing the creditor to take some
action at his or her expense. (189) The paper proposes some form of
‘wakeup call,’ at little or no cost to the creditor, which
would trigger payment by the debtor, such as service of a questionnaire
as proposed under paragraph 45(1)(a) of the Uniform Act. The debtor
would then have ten (10) days to return the questionnaire, failing which
the ‘wakeup call’ would be at minimum a visit from the
enforcement officer, with possible enforcement action to follow. (190)
Given the increased role of the new enforcement office advocated as
the foundation of the NBJEA, it is recommended that New Brunswick adopt
this approach. Upon the filing of a Notice of Enforcement, the
enforcement officer would serve a financial disclosure questionnaire on
the debtor, or any person that has information concerning the property
of the judgment debtor, which must then be completed and returned.
Respecting optional creditor control over enforcement proceedings, the
NBJEA should also permit a judgment creditor to serve the judgment
debtor with the questionnaire and require that it be completed and
returned to the enforcement officer.
In simple and straightforward situations, all of the disclosure
tools are not necessary and judgment creditors should be able to obtain
sufficient information through the use of questionnaires. In more
difficult scenarios, an examination would be possible to supplement
information obtained through the questionnaire or to compel the debtor
to answer questions if the questionnaire has been ignored or cannot
address the complexity of the situation. As such, the NBJEA should
provide that the enforcement officer or a judgment creditor could compel
the judgment debtor to attend an examination under oath before the
enforcement officer. Unless requested and paid for by the judgment
creditor, no transcript would be available following the examination.
Unlike the Uniform Act, which requires a judgment creditor to apply
for an order compelling third parties to provide information known about
the judgment debtor’s financial affairs (191), the authors
recommend that this authority devolve to the enforcement officer, as is
the case in Newfoundland. (192) As a result, any person that has
information concerning property of the judgment debtor, including an
employee of the judgment debtor, or, if the debtor is a corporation, the
directors, officers and employees of a corporation, may be required to
submit to an examination before the enforcement officer. (193)
Further enforcement measures must be contemplated and judgment
debtors forewarned that penatties and other consequences are possible in
the event a judgment debtor refuses to cooperate and honestly disclose
the required information. Subsection 122(1) of the Saskatchewan Act
provides that every person who contravenes certain statutory obligations
(such as disclosure requirements) is guilty of a summary conviction
offence and faces a maximum fine of $1,500 for a first offence and
$10,000 for a second or subsequent offence. Corporations face a maximum
fine of $10,000 for a first offence and $100,000 for a second or
subsequent offence. Strong consideration should be given to adopting the
same approach under the NBJEA. Such a feature would be consistent with
the approach taken in the New Brunswick Support Enforcement Act, which
provides that disobedience of its provisions is an offence punishable
under the Provincial Offences Procedure Act. (194) Finally, in the most
difficult circumstances, the court could lend assistance by issuing any
necessary order, including for contempt.
5. Enforcement procedures and remedies
5.1 The current law in New Brunswick
Seizure and sale of property is largely governed by the Memorials
and Executions Act. The Act allows the seizure of money and securities
for money, the seizure of land and various interests in land, such as a
beneficiary interest through a trust or a mortgagee’s interest, as
well as tangible and intangible personal property. (195) If the judgment
debtor is believed to have exigible property, an Order for Seizure and
Sale can be obtained from the clerk of the court pursuant to Rule 61.
The Order is then delivered to the sheriff and has the effect of
directing the sheriff to enforce a judgment creditor’s claim
against the judgment debtor. According to subsection 4(1), the judgment
debtor’s property is seized by the sheriff to such extent as is
necessary and feasible to satisfy the Orders of Seizure and Sale
received from registered judgment creditors and, in some cases, the
interest of other creditors such as preferred creditors or secured
creditors if they possess a higher encumbrance on the property.
The enforcement of the Order for Seizure and Sale and other
enforcement orders is the responsibility of the sheriff, (196) although
creditors can and often must play an important role in gathering
information for the sheriff regarding the judgment debtor’s
exigible assets and providing detailed enforcement instructions. In
addition, the sheriff may require the creditor to pay the required fees
and reasonably anticipated expenses of carrying out the enforcement in
If there are reasonable grounds to believe that property of the
debtor is in the possession or control of a third party, that person may
be directed to deliver over the property. (198) However, where property
is claimed by a third party, the sheriff may refuse to proceed with a
seizure until the creditor provides sufficient security to cover any
damages that the sheriff might sustain because of the seizure or sale.
A judgment creditor can also attach debts owed to the judgment
debtor by a third party, and compel the third party to pay the money
owed towards the satisfaction of the judgment. (200) Although the
“seizure” of money is technically possible under the Memorials
and Executions Act, as funds could conceivably be in the debtor’s
possession, the seizure of income is mostly achieved through
garnishment, a process by which the judgment creditor can compel a third
party to remit money which that third party is legally required to pay
to the judgment debtor. Although the effect of the attaching order is
ultimately felt by the judgment debtor, the order itself is against the
third party, compelling the latter to pay the judgment creditor any
money owed by the third party to the judgment debtor. Pursuant to an
attaching order, debts and sums of money owing from the third party to
the judgment debtor are attached and bound in his or her hands. (201)
However, not all debts can be attached, but only those debts which are
“due absolutely and without depending on any contingency”.
(202) If the garnishee makes any payment to anyone other than the
judgment creditor or into court once served with an attaching order, the
payment is void and the garnishee is liable to pay the same to the
extent of the judgment creditor’s claim or to the extent of the
debt or sum of money owing by the garnishee to the judgment debtor.
In addition, the Creditors Relief Act provides that the sheriff may
garnish sums owed to the judgment debtor. (204) However, it appears that
the sheriff will only do so where there are “several executions and
claims” in his hands and that there does not appear to be
sufficient exigible assets to cover all claims as well as enforcement
costs. Furthermore, the Creditors Relief Act provides that a judgment
creditor who attaches a debt is deemed to have done so for the benefit
of all creditors entitled to the pro rata sharing under that Act. (205)
Another enforcement proceeding currently available to judgment
creditors is the payment order. Pursuant to section 29.1 of the Arrest
and Examinations Act, a judgment creditor may serve on the judgment
debtor a Notice of Judgment in the form prescribed by regulation. The
judgment debtor may then either satisfy the judgment in whole by paying
the amount in the notice received or pay the judgment in equal monthly
instalments in accordance with the payment schedule prescribed by
regulation. Under the regulation, the debtor is directed to pay the
creditor in 12, 24, 36 or 48 equal monthly instalments depending on the
amount of the judgment. (206) If the judgment debtor is unable to comply
with the prescribed instalments, an application may be made to the clerk
of the court to vary the prescribed schedule.
Pursuant to sections 29.2 and 29.4, the judgment creditor also has
the ability to ask the clerk to vary the prescribed schedule and if the
judgment debtor fails to pay the judgment or the instalments stated in
the notice he has received, the judgment creditor may apply to the clerk
to obtain an order directing the judgment debtor to pay. Again, if the
judgment debtor cannot comply, he may apply to the clerk of the court to
vary that payment order. Although failure to comply with any of the
clerk’s payment orders may be punished by a finding of contempt of
court, this enforcement measure is rarely, if ever, utilized by
creditors. (207) The complexity of the legislation governing creditors
and debtors alike, the frequent and casual disregard of these orders by
judgment debtors, the lack of consequences on the recalcitrant judgment
debtor and the refusal of the justice system to uphold these types of
payment orders may explain this avoidance.
As stated earlier, section 45 of the Arrest and Examinations Act
also allows a judgment creditor to obtain an order compelling the
judgment debtor to be examined under oath. If such an examination has
shown that the judgment debtor has the ability to pay, an order that the
debtor pay the amount of the judgment debt together with any costs of
examination forthwith or by instalments may also be made. Such orders
can also be varied on application by the judgment debtor and
disobedience is punishable by a finding of contempt of court.
Where the judgment creditor can show that enforcement remedies are
unavailable or unduly complex as a result of impediments, he or she can
apply for the appointment of a receiver. This equitable relief is
governed by Rule 41.02(1)b) of the Rules of Court and entails the
appointment of a receiver over specific property. Equitable execution is
a means of reaching assets that are not otherwise exigible. There must
be a legal right of the creditor to be paid out of the particular asset
that the creditor cannot reach without aid of the equitable jurisdiction
of the court, but the moving party must demonstrate that is it
“just or convenient to do so”. Accordingly, a receiver will
not be appointed where it is wholly unnecessary and unless there is
clear evidence that some benefit will be derived from the appointment of
Generally, the court will appoint a receiver when garnishment is
impractical, when the debtor has sheltered assets and when the debtor
has arranged his or her affairs in such a way that ordinary means of
execution are rendered useless. Although this remedy can be very
effective, it is rarely utilized–no doubt in light of the additional
cost that it entails–but arguably because the remedy appears to be
available only when ordinary enforcement measures have failed or would
clearly be ineffective. (208)
Upon completion of enforcement procedures and disposition of
assets, the issue then becomes how to distribute both the proceeds of
enforcement and the funds received by the enforcement officer directly
from the judgment debtor or third parties. Once priority is established
between groups of encumbrance holders, funds are parceled out according
to the principles of distribution expressed in the Creditors Relief Act.
Distribution of proceeds among judgment creditors is contingent on
the requirement that the sheriff “levy” money upon an
execution against the property of a debtor, (209) a notion dependent
upon the actual seizure of property and any moneys received as a result,
whether by disposition or directly from the judgment debtor prior to the
sale either by compulsion or negotiation. (210) Accordingly, any money
received from the debtor prior to seizure, even when resulting from the
threat of an impending seizure, or by third parties on behalf of the
debtor, is not considered a levy and therefore is not distributable
among judgment creditors. (211) Section 19 of the Creditors Relief Act
provides, however, that if any money is received from the judgment
debtor prior to the sale of any seized property and no other creditor
has filed a claim with the sheriff, the sheriff may pay the enforcing
creditor without any public notice to other creditors.
According to subsection 4(1), when the sheriff levies funds in
excess of seven hundred and fifty dollars, he must proceed to make an
entry into a journal for public inspection. The sheriff must then hold
the distributable fund for a period of one month during which additional
creditors have an opportunity to file their Notice of Judgment or
request a certificate under the act in order to share in the proceeds.
(212) Finally, all judgment creditors who have filed a Notice of
Judgment under subsection 2.2(1) are entitled to participate in the
proceeds of distribution in addition to non-judgment creditors, who have
obtained certificates under the Creditors Relief Act. (213)
In cases where there is sufficient property to satisfy all
judgments, the issue of distribution and priorities becomes a moot
point. However, as is often the case, the eligible property of a
judgment debtor rarely allows for sufficient funds to pay all of the
debts owed to judgment creditors and other encumbrance holders. In cases
of insufficient amounts being realized by sheriffs, enforcement proceeds
are applied first against the costs of execution and then shared,
proportionally between judgment creditors. (214)
Currently the regime in New Brunswick is most problematic in that
the legislation on distribution excludes various assets of the debtor
including payment orders, proceeds of equitable execution such a
receivership and, most notably, payments made by debtors to judgment
creditors prior to seizure. (215) In addition, the law remains uncertain
whether all proceeds from garnishment obtained by a judgment creditor
are for the benefit of the creditors entitled to pro rata sharing under
the Creditors Relief Act, as suggested by subsection 35(3) of that Act,
or whether such proceeds are only shared where the two preconditions of
the sheriff’s right to apply for an attaching order. (216)
5.2 The case for reform and recommendations
As with the Uniform Act and the Saskatchewan Act, the objective of
the NBJEA is to provide a modern, comprehensive system of powers and
responsibilities for the enforcement officer, spelling out the
enforcement officer’s authority to deal with a variety of complex
assets that are not explicitly covered by our existing judgment
enforcement legislation. Although promotion of creditors’ rights to
successfully and efficiently enforce a judgment is a core objective of
the reform, it must not be attained at the expense of debtors’
With regards to enforcement remedies, the authors recommend that
the NBJEA follow the same general principles of the Saskatchewan Act and
the Uniform Act. Both Acts clarify the role of the enforcement officer,
his or her powers and responsibilities and provide wide discretionary
powers to realize the objectives of the NBJEA and efficiently recover
outstanding amounts owing to judgment creditors while at the same time
protecting judgment debtor interests.
For the most part these Acts contain straightforward seizure and
sale provisions, including protections for the debtor similar to those
under the PPSA (redemption of seized property within a certain time,
limits on seizable assets to only that necessary to cover outstanding
judgments, refund of surplus to the debtor, etc.), but also contain
various provisions for the seizure and disposition of specific types of
assets, such as licenses, corporate securities and property subject to
family court exclusive possession orders.
5.2.1 Power of enforcement officer
In contrast with the current creditor-control enforcement remedies,
the central role of the sheriffs in the proposed judgment enforcement
system must be further clarified. Unlike the sheriff’s current role
within the judgment enforcement system, the NBJEA should expressly
provide a non-exhaustive list of such powers, including the powers of
election and of a beneficiary under a trust as well as the power to
assign or transfer an interest in property; to give a release or
discharge; to collect an account; to present an instrument or security
for payment and receive payment; to sue any person liable on an account,
instrument or security in the name of the judgment debtor; to negotiate
an instrument or security; and to take protective or conservatory
measures such as effecting a registration relating to the judgment
debtor’s interest in the registry, the land titles registry or any
other public registry. (217)
The power to seize and realize upon the judgment debtor’s
property, as well as the above ancillary powers, are subject to the
exigibility of the property and the amount of recovery required to
satisfy the eligible claims. Hence, an enforcement officer may only
seize exigible property sufficient to satisfy the amount owing with
respect to any or all Notices of Enforcement as well as any amount
payable to a person whose interest in or claim to exigible property or
its proceeds has priority over an enforcement charge relating to a
Notice of Enforcement. (218)
In addition, when the enforcement officer serves a Notice of
Seizure, he or she may also serve directions, which may be amended or
revoked, 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 requiring the person served to deliver possession or control
of the property to the enforcement officer. As a result, when property
has been seized by the enforcement officer, the judgment debtor or other
person affected can only deal with the property to the extent permitted
by the enforcement officer. Statutory obligations may therefore be
imposed on the person in possession of the judgment debtor’s
property, “including the obligation to hold or to surrender to the
sheriff property of the debtor or property to which the debtor is
entitled immediately or at some future time”. (219) A person who
fails to comply with the enforcement officer’s directions, and
anyone who assists that person, is liable to the judgment creditor for
any loss this causes as well as any penalties contemplated by the Act.
S.2.2 Seizure of property
For the purpose of enforcing a judgment, an enforcement officer may
seize any property of the judgment debtor that is subject to an
enforcement charge. According to the principle of universal exigibility
of the judgment debtor’s property, the enforcement officer should
be authorized to seize all types of property in order to sell it or,
conceivably, realize its value in some other way. “Property”
should therefore be defined in broad terms as (a) land, (b) personal
property as defined in the PPSA and (c) any other right, claim, interest
or thing that has realizable value.
With respect to seizure of property, the NBJEA should adopt the
Uniform Act and the Saskatchewan Act’s notion of
“seizure”, (220) a term to encompass all judgment enforcement
remedies provided by prior law. Pursuant to this legal innovation,
“seizure” can be done in two ways, either (a) by taking
physical possession of the property, or (b) by serving a Notice of
Seizure on whoever has control of the property. Except as otherwise
specifically provided in the NBJEA, (221) an enforcement officer may
therefore seize exigible tangible property either by taking physical
possession of the property or by serving a notice, as prescribed, on the
person in possession of the property or the land on which the property
is situated and posting the Notice of Seizure on the property or in a
conspicuous place in close proximity to the property. (222)
In the case of intangible property, such as goods, chattel paper, a
document of title, an instrument, money, a security, a futures contract,
a licence or an account, the seizure would be accomplished by serving
notice on the judgment debtor or by serving notice on the person whose
obligation consists of the property or a portion of the property. (223)
In addition, the Saskatchewan Act permits steps other than those
described in the Act as may be appropriate to the nature of the
property. (224) As a result, intangible property will always have to be
seized by Notice of Seizure, but a Notice of Seizure can also be used
for physical property if the enforcement officer wants to seize the
property but leave it in the physical possession of the judgment debtor
or another person.
As Cuming observed, these new provisions give a much greater
significance to seizure by simple notice than was recognized by prior
[s]eizure by notice is the functional equivalent of seizure by taking possession or control in that it gives rise to obligations on the part of the person to whom the Notice of Seizure is given to recognize the control of the sheriff with respect to the property. (225)
Cuming further commented on “a very important innovation”
in the Saskatchewan Act, which he described as:
the possibility of enforcement through seizure of a judgment debtor's interest [in] tangible personal property even though the judgment debtor does not have a right to possession of the property. Under prior law, a sheriff could not seize property owned by the judgment debtor under a writ of execution if to do so was to interfere with the possessory rights of a third party. This rule precluded execution against valuable property interests since the only method of effecting execution was for the sheriff to take possession or control of the property. Under the EMJA, seizure can be effected by a notice without physical seizure. Consequently, it need not involve interference with the rights of the person in possession of the property. This feature is particularly significant where the judgment debtor has title to property subject to the possessory rights of a lessee or buyer or where the property is a security interest in property of a person who is not the judgment debtor. (226)
5.2.3 Seizure of accounts owing to judgment debtor
As the FSOS of New Brunswick can most likely attest to, the best
source of funds to satisfy a debt is the debtor’s flow of future
income. As a result, and given the previous recommendation that wages
and income receive only limited protection against civil enforcement
measures under the NBJEA, a key element of the proposed enforcement
system is an expanded and streamlined procedure for seizure of surplus
employment and other income or any other type of existing or future
accounts owed to the judgment debtor. To attain this objective, the
Uniform Act eliminates “garnishment” from judgment enforcement
terminology, as does the Saskatchewan Act, replacing this enforcement
remedy by the seizure of “accounts owing to the judgment
debtor” (227) or seizure of “existing and future
accounts” (228). The Newfoundland Act and the Alberta Act both
retain the term garnishment, as does the proposed 1994 NBJEA.
As with all types of property, the notion of “seizure”
should apply to all types of accounts owing to a judgment debtor. It is
therefore recommended that the NBJEA follow the Saskatchewan Act, which
provides, as the title of Part VII clarifies, that seizure can be
affected on present and future accounts and encompasses any monetary
obligation due to the judgment debtor. As explained by Wickett:
[t]his includes insurance contracts, letters of credit, guarantee contracts, and indemnity contracts. It also includes accounts which are not in existente when the Notice of Seizure is served, but which come into existente within one year of delivery. This "all encompassing" feature of the seizure of present and future accounts provides clarity and flexibility that are significantly lacking under the current system. (229)
With respect to the seizure of income, it is recommended that the
NBJEA adopt an approach similar to that found in the proposed 1994
NBJEA. This approach allows the enforcement officer to determine the
exempt assets and income and to issue to the debtor an order to pay any
surplus income over the assessed amount of exempted income. The
instalment order would therefore create a personal duty on the debtor to
pay the enforcement officer a portion of the income received.
Consultation with the judgment debtor on the specific amount payable
should be envisioned, thereby ensuring the ultimate order reflect not
only the debtor’s individual situation but the debtor’s wish
to increase the proposed payment in order to satisfy the judgment
earlier. Failure by the judgment debtor to respect the payment order
would allow the enforcement officer to seize the income directly from
the source without having to apply for a court order. (230)
FSOS’s success in garnishing employment income should provide
a starting point in determining the infrastructure required to seize
this type of property and the Support Enforcement Act and its
regulations templates to be adapted for the NBJEA. As under the Support
Enforcement Act, protection for the judgment debtor and the garnishee
are recommended. (231) Moreover, it is also recommended that the
legislative provisions of the Support Enforcement Act and the NBJEA
should comprise similar terminology and procedures. Although certain
differences are expected given the nature of support orders and
agreements, the administrative structure, procedures and documentation
should be comparable from a judgment debtor’s and a
5.2.4 Disposition of seized property
Consistent with the guiding principle that judgment creditor
involvement should be an option, but not a requirement; the enforcement
officer’s wide discretionary powers should naturally be extended to
the method of sale of seized property. The authors therefore recommend
that the NBJEA afford enforcement officers the necessary discretion to
dispose of seized property in the manner that the enforcement officer,
acting reasonably, considers offers the best opportunity to maximize the
proceeds that may be anticipated from disposition. The enforcement
officer should, however, be required to inform judgment creditors who
stand to share in the proceeds of the sale as to the method of sale
chosen prior to the sale proceeding. (232) A judgment creditor
disagreeing with the enforcement officer’s indented course of
conduct could then take steps to obtain a court order directing the
officer to proceed otherwise. (233)
The preferred approach to implement the above recommendation is
found in the Saskatchewan Act. Although particular manners of
disposition for various types of property or circumstances may be
prescribed, subsection 98(1) provides that seized property shall be
disposed of by the sheriff in a manner that is likely to realize the
maximum proceeds reasonably recoverable under the circumstances,
including by sale or lease. Cuming advanced the following arguments in
favour of granting the discretion and resulting flexibility to the
It reflects the conclusion that detailed requirements imposed on the sheriff are more likely to be counterproductive since they may preclude the sheriff from taking advantage of market conditions. For example, the sheriff may conclude that a sale of real property by a real estate agent or a sale of personal property without incurring the costs and delay of advertising is the manner of disposition most likely to bring the maximum proceeds reasonably recoverable in the circumstances. While this approach removes the "safe harbour" provided by statutory rules detailing the steps to be taken when disposing of collateral, in the great bulk of cases it is likely to be the most efficient way to obtain the maximum realizable value of the property. (234)
This discretionary power is restricted, however, by the Notice of
Disposition requirement to all interested parties and the enforcement
officer’s statutory standard of conduct “to perform a function
or duty or exercise a right or power […] in good faith and in a
commercially reasonable manner”. (235)
The enforcement officer is further guided by the court’s
authority to order that property be disposed of for any price obtainable
if the sheriff is unable to dispose of the property for an amount that
the sheriff believes is a reasonable price, or even prohibit disposition
(i) it is unlikely that a disposition will produce sufficient proceeds to discharge the costs of obtaining the judgment and the costs of enforcement; (ii) the property produces income or is likely to produce income that can be applied to satisfy the amount recoverable; or (iii) for any other reason the court concludes that the disposition should not occur. (236)
The Saskatchewan Act further provides that a purchaser of the
property would receive the same title as the judgment debtor possesses.
In particular, a person who acquires an interest in property in good
faith pursuant to a disposition by the sheriff takes the property free
from the interest of the judgment debtor, an interest subordinate to
that of the judgment debtor, any enforcement charge affecting the
property as well as an interest in personal property or in land
subordinate to an enforcement charge as provided in the Saskatchewan
Actor in The Land Titles Act, 2000. (237) The advantages of the
aforementioned statutory provisions are summarized by Williamson:
there will be no requirement that the Enforcement Officer disclose that the property is being sold as a result of enforcement proceedings. This approach treats the sale as if it were the debtor doing indirectly what he or she should have done directly; sell the property to satisfy the judgments. This approach should increase the amount realized from the debtor's property. (238)
5.2.5 Sale of land
The NBJEA should specifically address the sale of land as a means
of judgment enforcement. The present requirement that all exigible
personal property be sold before enforcement against land can take place
should be removed. Notwithstanding the removal of this limitation, the
sale of land will remain, in most cases, a method of enforcement not to
be taken lightly, as the associated enforcement costs and likelihood of
competing interests will inevitably remain and reduce the actual
potential of the land to satisfy the judgment debt. In addition, the
sale of land would be subject to the exemption for equity in a principle
residence as previously recommended by the authors.
It is further recommended that all joint tenancies be automatically
severed by operation of the enforcement proceedings under of the NBJEA
and that the joint owners be deemed to own equal shares in the land. The
NBJEA should also provide an innocent co-owner the right to apply to
court and rebut the presumption of equal ownership. The co-owner would
have the right to purchase the judgment debtor’s share at fair
market value before a sale is made by the sheriff, as is provided for in
the Uniform Act. (239)
In order to protect judgment debtor and third party interests in
land, a waiting period before land can be sold to satisfy a judgment
debt should be prescribed by the NBJEA. The waiting period would allow a
judgment debtor the opportunity to satisfy the judgment or come to an
agreement with the enforcement officer or the judgment creditor to avoid
the sale of land. Waiting periods of different lengths have been adopted
in those provinces that have reformed their judgment enforcement laws.
The Saskatchewan Act provides that interest in land cannot be sold
before 12 months after the date of seizure (240) whereas the Alberta Act
provides seized land cannot be offered for sale until 1 80 days have
elapsed since the judgment debtor has been served with documents
advising of the intention to sell land to satisfy a judgment. (241) In
comparison, the Newfoundland Act provides that the sheriff cannot offer
land for sale until 30 days have elapsed from the date on which the
judgment debtor was served with notice that land would be sold, and
cannot actually sell land until 90 days have elapsed since the date of
It is believed that a waiting period of six months should be
sufficient for a judgment debtor to attempt to rearrange his or her
affairs and satisfy the judgment or come to an agreement with his
creditors so as to avoid the sale of land. (243) Finally, the NBJEA
should enable the court to shorten or extend the waiting period on
application of an interested party.
5.2.6 Appointment of receivers
Although Rule 41.02 allows receivership in aid of judgment
enforcement, there is merit in making this enforcement remedy a part of
the NBJEA with codification and simplification of the principles
governing the exercise of the court’s discretion to grant this
remedy. The need for the remedy is diminished under a modern judgment
enforcement statute, which adopts the principle of universal
exigibility, but can still play a vital role in judgment enforcement,
because circumstances may make enforcement more efficient through
receivership than through ordinary enforcement measures. It is therefore
recommended that the NBJEA adopt in substance Part 13 of the Uniform
Act, making receivership an efficient and effective enforcement tool
where the circumstances warrant it. It provides that the court may
appoint a receiver over all or specified property of the judgment
debtor. Courts ought to be allowed ample discretion as to the scope of
any receivership order so as to prevent repeated appearances if problems
The receiver could thus be appointed over all exigible property,
subject only to property expressly exempted by the Act. The NBJEA would
also provide those circumstances to be assessed by the courts in
deciding whether a receiver should be appointed. Under the Uniform Act,
these considerations include whether receivership is an effective means
of realizing on the property, the practicability of other enforcement
proceedings, whether the money that a receiver may reasonably be
expected to realize is likely to be sufficient to pay the costs related
to the receivership, whether actual money is expected to remain for
distribution among judgment creditors and whether the receivership may
cause undue hardship or prejudice to the judgment debtor, a dependant of
the judgment debtor or to a person in possession or control of property
of the judgment debtor. (244)
The adoption of the Uniform Act provisions also makes it clear that
receivership is not available only when all other methods of enforcement
have failed or are clearly impractical, but rather when it is just and
convenient to order the receivership in light of the previously
The NBJEA should also give the court discretion to grant the
receiver those powers that are necessary to carry out his or her
mandate, but would also provide a non-exhaustive list of powers that the
court could grant, similar to what is currently found at Rule 41.05(d)
of the Rules of Court.
5.2.7 Distribution of proceeds of seized property
The current complexity of the distribution scheme is the resulting
legacy of the Creditors Relief Act, due not only to the mandated
procedures but in the wording of the Act itself. The adoption of
personal property securities and land titles legislation further
complicated the already disenfranchised legal roadmap to resolving
priorities and distribution for judgment creditors. In response to these
obstacles, and guided by the principles of an efficient and coherent
enforcement system consolidated under one statute, modern judgment
enforcement legislation provides a complete code for distribution of a
distributable fund to eligible claimants. (245)
Although these statutes are conceptually based on the repealed
Creditors Relief legislation, they provide a much more refined and
effective judgment enforcement system. (246) A centralized
“distributable fund” administered and directed by an
enforcement officer provides benefits for all judgment creditors
regardless of the level of sophistication or experience. Moreover, it
provides for a system where access to funding for legal representation
does not provide a barrier or benefit to recovering funds. This will
result in less expense, as well as more timely and efficient access to
judgment enforcement remedies. (247)
According to Williamson, one of the significant problems with the
current legislative structure is its scope and the fact that “it is
not broad enough from the standpoint of ensuring that the exigible
property of a debtor is distributed pro rata among those creditors
entitled to share.” (248) Of particular concern is the question of
the exclusions of various types of property that are not currently
seizable by the sheriff. This flaw of the current Creditors Relief Act
is explained by Buckwold and Cuming:
One of the problems with The Creditors' Relief Act is the arbitrariness of its scope of application. It applies only if money has been levied by the sheriff against property of the judgment debtor. Since a levy occurs only when the sheriff receives money as a result of the seizure of a judgment debtor's property (whether or not there has been a sale), payments made to the sheriff before a seizure has occurred, payments made by the judgment debtor directly to the judgment creditor and payments made to the sheriff or judgment creditor by someone other than the judgment debtor are not distributable under the Act. (249)
To address many of these problems, the time of creation of the
distributable fund and its composition must first be examined. A review
of new judgment enforcement legislation establishes that the creation of
a distributable fund is “constituted” when an enforcement
officer actually receives money either in the form of a payment from the
judgment debtor or third parties or in the form of proceeds from the
disposition of seized property by the enforcement officer or a secured
creditor. (250) For example, subsection 180(1) of the Uniform Act
provides that a “distributable fund is constituted when an
enforcement officer receives money toward satisfaction of a judgment in
respect of which the enforcement officer has received a subsisting
This finding then leads the analysis to the composition of the
distributable fund which merits particular attention. Given the guiding
principles of collective enforcement and universal exigibility of the
judgment debtor’s property, the authors recommend that the NBJEA
follow the New Brunswick 1976 and 1985 Reports which recommend that a
distributable fund should include any receipt of money by the
enforcement officer towards satisfaction of an enforcement, whether as a
result of seizure, garnishment, voluntary payments or otherwise. (251)
These recommendations take shape in the form of clause 180(2)(a) of
the Uniform Act, which defines a distributable fund as comprising all
money that is “received by an enforcement officer towards
satisfaction of a judgment after the receipt of an enforcement
instruction regardless of the source of the money […] whether or not
the money is received as a result of an enforcement proceeding in
respect of a judgment debtor’s property”. (252) Likewise, the
Saskatchewan Act has cast a wide net in formulating its definition of a
distributable fund which captures all “[m]oney received by the
sheriff in relation to an enforcement charge, whether or not the money
is received as a result of an enforcement measure, with respect to the
judgment debtor’s property”. (253)
Both the Uniform Act and the Saskatchewan Act contain language
surrounding the creation of a “distribution fund” which charts
new territory as it relates to the collection, administration and
distribution of funds. However, both Acts fall short in fully addressing
the issue of money paid voluntarily by judgment debtors to judgment
creditors and direct that only funds received “after giving an
enforcement instruction” be included in the distributable fund. In
particular, the Saskatchewan Act provides at subsection 170(3) that:
a judgment creditor who receives any [...] payments after giving an enforcement instruction to the sheriff shall deliver any funds received to the sheriff, regardless of whether the enforcement instruction is a subsisting enforcement instruction at the time payment is received. (254)
Cuming explains the policy reason behind the decision to authorize
a judgment creditor to retain a payment from the judgment debtor before
filing a Notice of Enforcement and yet require the same creditor to
remit such payment once a notice is delivered to the enforcement officer
Clause 107(3)(a) is based on the policy conclusion that, once a judgment creditor has elected to invoke the judgment enforcement system by delivering an enforcement instruction, he or she cannot circumvent the system by retaining money paid directly to him or her by the judgment debtor or someone else. However, a judgment creditor who has not invoked the system, other than to register his or her judgment, is entitled to deal directly with the judgment debtor in seeking satisfaction of the judgment. (255)
The inapplicability of judgment enforcement legislation prior to
the receipt of a Notice of Enforcement from each and every registered
judgment creditor seems, however, to defeat not only the principles of
collective enforcement and of pro rata distribution among eligible
creditors but also of the universal exigibility of the judgment
debtor’s property for all judgment creditors. Under those Acts, it
would be “possible for a judgment creditor who has received payment
of part of his or her judgment under circumstances in which the money
need not be remitted to the sheriff […] to thereafter deliver an
enforcement instruction and share with other judgment creditors in
distribution of a fund”. (256)
In the New Brunswick 1985 Report, Williamson notes that the
underlying reason for allowing payments from debtors to judgment
creditors outside of the scope of a distributable fund was to encourage
negotiation between the parties and payments outside the enforcement
system. He argues that this is inconsistent with the pro-rata sharing
approach and that all voluntary payments should be remitted to the
enforcement officer. (257) Allowing payments that are clearly outside of
the scope of the distributable fund not only allows, subject to the
Assignment and Preferences Act (258), but encourages unjust preferences.
(259) In agreement with these conclusions, it is therefore recommended
that the NBJEA deviate from the limited application of the Saskatchewan
Act and the Uniform Act and provide that any money received by
registered judgment creditors must be reported to the enforcement
officer and be considered as forfeited to the enforcement officer for
inclusion in a distributable fund. The NBJEA should therefore adopt the
aforementioned all-encompassing definitions of “distributable
fund” but enlarge its scope to include not only moneys received
following the delivery of a Notice of Enforcement to the enforcement
officer but rather following the filing of a Notice of Judgment in the
PPSA Registry for the benefit of all judgement creditors.
Once the composition of the distributable fund is determined, the
NBJEA must prescribe which creditors can claim priority and which
judgment creditors are eligible to share in the distributable fund.
According to the Newfoundland Act, only a registered judgment creditor
“at the time the distributable fund is constituted and no other
person has an eligible claim to that distributable fund”. (260) In
comparison, sections 179 and 182 of the Uniform Act limit the access of
a distributable fund to instructing judgment creditors, and all eligible
claims are determined by the enforcement officer as of the time the
distributable fund is constituted when an enforcement officer receives
money after receipt of an enforcement instruction. However, as observed
by the ULCC comment on this provision:
[b]etween the time of a seizure by an enforcement officer and the time that the enforcement officer receives proceeds from the sale or other disposition of the seized property, additional judgment creditors may deliver enforcement instructions to the enforcement officer and thereby become eligible claimants who are entitled to share in the distribution of the distributable fund under this Part. (261)
Between these two options lies the Saskatchewan Act. Although that
Act provides that only instructing judgment creditors are entitled to
share in proceeds of enforcement proceedings, a sheriff must serve on
any registered judgment creditor in the registry and who has not given
an enforcement instruction to the sheriff a notice of the upcoming
distribution of the fund in accordance with the period prescribed at
section 108. (262) This notice affords registered judgment creditors the
opportunity to provide the sheriff with enforcement instructions that
will enable them to participate in the distribution. The 1994 NBJEA also
provided a 30-day period to registered judgment creditors to declare
their desire to share in the proceeds. (263)
It would seem, however, that by limiting access to the
distributable fund to judgment creditors whom have already given
instructions to the enforcement officer, as is proposed by the Uniform
Act, the priority given via registration to a judgment creditor above
other subsequent charges on the judgment debtor’s property would be
in fact nullified. Accordingly, notice to all registered judgment
creditors is recommended to enable all exigible claims to participate in
the distribution. In order to determine de ‘exigibility’ of
claims, it is further recommended that the NBJEA adopt section 183 of
the Uniform Act authorizing the enforcement officer to demand
information about a claim from judgment creditors.
These recommendations do not resolve, however, the uncertainty
regarding the total amount of eligible claims to be enforced prior to
enforcement. With this objective in mind, an effective enforcement
strategy based on the actual amount of eligible claims could be achieved
by requiring the enforcement officer to provide notice of the upcoming
enforcement to all registered judgment creditors prior to enforcement
proceedings. In reply to the enforcement officer’s notice,
registered judgment creditors would be permitted to file a Notice of
Enforcement in accordance with the statutory requirements of the NBJEA,
prior to the initiation of enforcement proceedings in order to share in
the distributable fund. Any creditor omitting to reply to the
enforcement officer’s request or indicating a refusal to
participate within the prescribed period would not be entitled to
participate in the distribution. As a result, only judgment creditors
that have filed a Notice of Enforcement would be eligible to participate
in the distribution and share a distributable fund.
If the distributable fund is constituted by the receipt of money
that does not result from an enforcement proceeding such as a payment
from the judgment debtor or the realization of a security interest, a
similar notice to registered judgment creditors could be envisioned. In
the event of the receipt of a regular stream of funds, such as the
seizure of surplus income, additional registered judgment creditors
would be able to share in the distributable fund and the enforcement
officer, upon receipt of any additional Notices of Enforcement, would
determine whether a new enforcement strategy is warranted. In the event
a revised strategy is recommended by the enforcement officer, notice
must be given once again to all registered judgment creditors prior to
the actual enforcement. This option still provides a sense of fairness
to all registered judgment creditors like the Saskatchewan Act and the
Newfoundland Act while enabling the enforcement officer to develop the
most efficient and effective enforcement strategy for all enforcing
judgment creditors prior to enforcement.
With regards to distribution, both the British Columbia 2005 Report
and the Nova Scotia 2011 Report recommended substantial adoption of the
distribution scheme and list of eligible claims provided by the Uniform
Act. Language adopted by the Saskatchewan Act is substantially
different, although a careful reading would suggest that the order of
distribution and the conceptual charges are very similar in nature.
(264) Under the Uniform Act, all judgment creditors who have filed
enforcement instructions are eligible to participate in the proceeds of
the “distributable fund”.
According to subsection 184(1), eligible claims are identified and
paid out as follows:
1) Fees, taxable court costs and expenses of the enforcement
officer earned or incurred in connection with the enforcement
proceedings that relate to the money comprising the distributable fund,
which amount must be paid to the enforcement officer or to the judgment
creditor or other person to the extent that such fees, costs or expenses
have been paid to the enforcement officer;
2) Taxable court costs of a judgment creditor incurred in a
proceeding to obtain a preservation order, a third person or
interpleader proceeding, or any other application to the court
attributed to money in the distributable fund;
3) Exempt income or proceeds of disposition from the sale of
property of exempt property of the judgment debtor to the judgment
4) The eligible claim of each instructing judgment creditor whose
enforcement instruction led directly to the contribution of money to the
distributable fund up to a prescribed amount; (265)
5) Eligible claims that by virtue of any other enactment or law in
force are entitled to priority over the claims of judgment creditors
6) Eligible claims of judgment creditors paid on a pro rata basis
who were parties to an interpleader proceeding to the extent that money
in the distributable fund can be attributed to those proceedings;
7) Taxable costs not falling within 1), 2) or 3), that are payable
out of the distributable fund under a court order;
8) The remaining balance in the distributable fund is distributed
on a pro rata basis among
i) judgment creditors to the extent of remaining balance of their
ii) landlords, if at the time of seizure, they had a right of
distress under landlord and tenant legislation; and
9) Any amount remaining must be paid to the judgment debtor or
person entitled to it unless, prior to payment to the judgment debtor,
the enforcement officer receives a new enforcement instruction.
The aforementioned categories make up the list of eligible claims
to the distributable fund under the Uniform Act. The functioning of the
scheme is such that one category must be exhausted prior to distribution
to the next category. Therefore all claims referenced in the first
category must be paid out of the proceeds of the distributable fund
prior to payment of eligible claims in the second category, and so
Notwithstanding the procedural and substantive novelties proposed
for the NBJEA, a similar scheme for the priority of exigible claims
remains appropriate for the NBJEA with the omission of the third and
fourth category. It is unclear why a judgment debtor’s exempt
income or proceeds of disposition from the sale of the judgment
debtor’s exempt property be included in the distributable fund if
there are “exempt”. In fact, none of the modern judgment
enforcement legislation includes such a category. (266)
In addition, the NBJEA does not require that any preference be
given to judgment creditors whose enforcement instructions have led
directly to the contribution of money to the distributable fund. (267)
Guided by the principle of optional judgment creditor control, and in
the absence of any requirement to provide specific instructions or
security for costs, the NBJEA does not task any judgment creditors with
liability in terms of evaluating the enforcement options, or with making
key decisions on enforcement measures. As a result, the “free rider
problem” in other jurisdictions, where only some of the judgment
creditors expend the effort and incur the risks associated with
enforcement proceedings, would not occur under the NBJEA. (268) The
reward given to instructing judgment creditors under the other Acts is
therefore neither required nor recommended under the NBJEA.
Nevertheless, judgment creditors do have the option under the NBJEA
to control the enforcement process and should not be penalized for their
diligence and successful enforcement on behalf of all enforcement
charges. As a result, their fees, costs and expenses should be
prioritized to the same extent as those of the enforcement officer.
These enforcement costs would be fixed and assessed by the enforcement
officer, as is currently the case by the court or the clerk of the
The interplay between categories 5 and 8 creates the possibility
that security interests, which are perfected by registration, are
interspersed by date and time of registration among enforcement charges.
Lawyers and academics alike have taken issue with the percentage of
distribution in the case of intervening secured creditors ranking among
judgment creditors under the auspices of equity and application of the
NBJEA. The fact that judgment creditors who register their judgments
after a secured interest are “allowed” to benefit from a
priority created by the earlier registration by another judgment
creditor does raise some form of unfairness. This is well illustrated in
the following example offered by Walsh to explain priority among
registered judgment creditors where there is an intervening registered
Suppose, for instance, that Judgment Creditor A registers a judgment against Debtor for $10,000. Secured Party subsequently takes and registers a security interest against all Debtor's present and after-acquired personal property to secure a $20,000 loan. Judgment Creditors B and C then register their judgments. In this scenario, Creditor A has priority over Secured Party to the extent of $10,000. But because the security interest is perfected by the time that Creditors B and C enter the picture, Secured Creditor has priority over them to the extent of the $20,000 secured loan. Nonetheless, Creditors Band C, by virtue of their sharing rights under the Creditors Relief Act are entitled to share pro rata in Creditor A's $10,000 priority over Secured Party. (269)
For Creditor A in Walsh’s example, having to share the $10,000
priority he or she diligently secured with two other judgment creditors
is disconcerting, especially if Creditors B and Chave substantially
higher judgments. Creditor A may indeed receive the lowest portion of
the funds available to the class he created, while the intervening
Secured Party retains priority for the next $20,000 available from
Debtor. This effectively creates a scenario where the first registered
creditor may end up getting less money than all other creditors who have
As such, some have advocated that the common law “first come,
first serve” system that preceded creditors’ relief
legislation was fairer. While such a system certainly would be
“fairer” to Creditor A in Walsh’s scenario, the system
can create other unfairness. For example, Creditor A may have easily
obtained a default judgment because Debtor neglected or was unable to
defend his claim. Meanwhile, Creditors B and C may have initiated legal
action long before Creditor A, but were not able to obtain a quick
judgment, either because Debtor defended those claim or because their
claims were not for liquidated damages, which denied them the ability to
obtain a default judgment and forced them to conduct a trial on damages,
all of which necessarily require more time. (270) In such circumstances,
Creditor A may be “first in time” only because of the
particular circumstances that prevailed. It can also be argued that a
first in time system inevitably favours creditors with greater financial
means who can react more rapidly and secure the necessary legal services
to obtain a judgment as quickly as feasible over those less fortunate
creditors who, although diligent, may not be able to act with the same
Others argue that the relatively good position of Secured Party in
Walsh’s example is also unfair. Indeed, current law allows Secured
Party to establish a second ranking to all future judgment creditors to
the extent of the $10,000 judgment value registered by Creditor A. While
Secured Creditor afforded credit to Debtor with full knowledge of the
outstanding judgment, he may have also acted with full knowledge of the
pending, yet un-adjudicated, claims of Creditor B and C, claims which
may have been for substantial sums born of long existing obligations.
However, the authors would argue that any system creating a priority for
all undeclared judgment creditors without any cap would thwart economic
activity that is dependent on the accessibility of credit.
It would appear that the modern approach to dealing with two sets
of interests on property is to provide for a reconciliation of both
interests to the possible detriment of judgment creditors. While it may
be argued that this treatment is an erosion of the rights of judgment
creditors, it may also be argued that it is simply a strict application
of the principle guiding the NBJEA that there shall be no priorities
established between judgment creditors in enforcement legislation.
Finally, once enforcement proceedings are completed and the order
of distribution determined, the enforcement officer should be required
to prepare a Notice of Distribution indicating the total amount of the
distributable fund and the amount received by each eligible claim under
the NBJEA. The Notice of Distribution must be served on all interested
parties, including the judgment debtor, judgment creditors with eligible
claims, secured parties, lien holders and other persons with a security
or registered interest in property affected by enforcement proceedings
which led directly to the contribution of the distributable fund. (271)
A statutory grace period for distribution of proceeds should also
be contemplated to allow the above parties or any other person to object
to the distribution scheme or aspects of it by giving a Notice of
Objection to the enforcement officer within a prescribed period. (272)
Once the period of grace allowed for any objections to the distribution
scheme has expired and, where the amount of the distributable fund
exceeds the amount required to make all payments, the funds can be
distributed accordingly. (273) Objections can then be dealt with
according to the NBJEA.
In light of political reality, any proposed system of creditor's remedies will have to strike a careful balance between the interest of the creditor and that of the debtor. It will have to offer the creditor a real possibility of collection while at the same time assuring the debtor that he will not be subjected to abuse. (274)
The NBJEA contemplates a grant of wide discretionary powers to a
new enforcement office and its officers with the objective and the hope
that the new judgment enforcement system will create and maintain
equilibrium between judgment creditor and debtor rights and interests.
Current law in New Brunswick dealing with judgment execution is in
dire need of reform. Reports from this province as well as numerous
others highlight the significant deficiencies and problems with the
present system. To date, three provinces have taken steps to improve the
situation for creditors, debtors and practitioners.
As stated at the onset of this article, the objective was to
analyse specific issues within New Brunswick’s current legal
judgment enforcement regime in comparison to other proposed or enacted
legislation in Canada in order to determine the best solution for the
province. It is believed that this article has also provided additional
elements to incite the debate which should take place in the wake of the
modernization of our provincial judgment enforcement system.
In conclusion, the authors hope that the current government
maintains its goal to enact a modern NBJEA and that the issues
identified in this article and the recommendations contained herein will
entice and help the province achieve this objective.
Micheline A. Gleixner, Natalie H. LeBlanc, and Sacha D. Morisset
(1) Micheline Gleixner is an Assistant Professor at the Faculte de
Droit, Universite de Moncton. Natalie LeBlanc is a lawyer with the
Office of the Attorney General of New Brunswick and Sacha Morisset is a
partner with Stewart McKelvey. First and foremost, the authors wish to
thank the generous financial support provided by the Law Foundation of
New Brunswick, without which this research project could not have been
undertaken. In addition, the research assistance provided by Tim Bell,
Universite de Moncton JD Candidate, 2013 as well as Ludmilla Jarda and
Julie Villeneuve, Universite de Moncton JD Candidates, 2012 is
gratefully acknowledged. An in-depth report entitled A Plea for a New
Brunswick Judgment Enforcement Act is available in French and in English
on Professor Gleixner’s website at the Faculte de droit of the
Universite de Moncton:
(2) British Columbia Law Institute, Report on the Uniform Civil
Enforcement of Money Judgments Act, BCLI Report no 37, (Vancouver:
British Columbia Law Institute, 2005), online: BCLI
civil-enforcement-money-judgments-act > at 1 [British Columbia 2005
(3) Ontario Ministry of the Attorney General, Ontario Civil Justice
Review (Supplemental and Final Report), (Toronto: Ontario Civil Justice
Review, 1996) at ch 6 “Specific Areas “, online: Ministry of
the Attorney General <http://www.attorneygeneral.jus.gov.
on.ca/english/about/pubs/cjr/suppreport/ch64a.asp> [Ontario 1996
(4) New Brunswick Justice and Consumer Affairs, Mandates, online:
New Brunswick Government <http://www2.gnb.ca/content/gnb/en/
(5) British Columbia 2005 Report, supra note 2 at 1.
(6) Ontario 1996 Report, supra note 3.
(7) Nova Scotia Law Reform Commission, Enforcement of Civil
Judgments (Discussion Paper), (Halifax: Law Reform Commission of Nova
Scotia, 2011) at 7, online: Law Reform Commission of Nova Scotia
Enforcement%20of%20Civil%20Judgments%20%20Discussion%20Paper.pdt”> [Nova Scotia 2011 Report].
(8) New Brunswick Office of the Attorney General, The Proposed New
Brunswick Enforcement Act (Executive Summary and Proposed Act),
(Fredericton: Law Reform Branch, 1994), vol 1 at 6 [New Brunswick 1994
(9) New Brunswick Ministry of Justice, Legal Remedies of the
Unsecured Creditor after Judgment by Karl J Dore & Robert W Kerr
(Fredericton: Government of New Brunswick, 1976) vol II at 240-241 [New
Brunswick 1976 Report].
(10) Judgment Enforcement Act, SNL, 1996, c J-1.1 [Newfoundland
(11) Civil Enforcement Act, RSA 2000, c C-15 [Alberta Act].
(12) The Enforcement of Money Judgments Act, SS 2010, c E-9.22
[Saskatchewan Act]. Although the Act was assented to May 20, 2010 is had
not been proclaimed as of March 28, 2012.
(13) Uniform Civil Enforcement of Money Judgments Act, online:
Uniform Law Conference of Canada <http://www ulcc.ca/en/us/
(14) British Columbia 2005 Report, supra note 2 and Nova Scotia
2011 Report, supra note 7.
(15) See: Alberta Law Reform Institute, Enforcement of Money
Judgments (Report), (Edmonton: ALRI, 1991), vol 1 at 3 [Alberta 1991
Report]; British Columbia 2005 Report, supra note 2 at 1.
(16) Personal Property Security Act, SNB 1993, c P-7.1 [PPSA].
Although the Act was assented to on May 7, 1993, it only became
effective on April 18, 1995.
(17) Tamara M Buckwold & Ronald CC Cuming, Modernization of
Saskatchewan Money Judgment Enforcement Law (Final Report) (University
of Saskatchewan, 2005) at 1, online: Government of Saskatchewan
[Saskatchewan 2005 Report].
(18) Creditors Relief Act, RSNB 1973, c C-33.
(19) New Brunswick 1976 Report, supra note 9 at 233. See also:
Dunlop, a leading academic in the field, corroborating this conclusion:
Charles RB Dunlop, Creditor-Debtor Law in Canada, 2d ed (Toronto:
Carswell, 1995) at 9 [Dunlop], which is also cited in British Columbia
2005 Report, supra note 2 at 9.
(20) See: Creditors Relief Act, supra note 18; Garnishee Act, RSNB
1973, c G-2; Arrest and Examinations Act, RSNB 1973, c A-12; PPSA, supra
note 16; Assignments and Preferences Act, RSNB 2011, c 115; Absconding
Debtors Act, RSNB 2011, c 100; Memorials and Executions Act, RSNB 1973,
c M-9; Land Titles Act, RSNB 1973, c L-1.1; Registry Act, RSNB 1973, c
R-6; Judicature Act, RSNB 1973, c J-2; Rules of Court of New Brunswick,
NB Reg 82-73 [Rules of Court].
(21) Ronald CC Cuming, The Enforcement of Money Judgments Act SS
2010, c E-9.22 (Analysis anal Commentary, Version 1(c)) (University of
Saskatchewan, 2010) at 4, online: Government of Saskatchewan
misc-publications/emjabook-vlc.pdf>[Saskatchewan 2010 Report].
Although Professor Cuming was referring to Saskatchewan’s Act, the
same comment can be applied to New Brunswick’s Creditors Relief
(22) British Columbia 2005 Report, supra note 2 at 11.
(23) New Brunswick 1994 Report, supra note 8, vol 1 at 3-4.
(24) Nova Scotia 2011 Report, supra note 7 at 8.
(25) New Brunswick Office of the Attorney General, Proposal for a
System of Enforcement of Judgment Debts (Executive Summary) by John R
Williamson (Fredericton: Office of the Attorney General of New
Brunswick, 1985) at 5 [New Brunswick 1985 Report]. See also:
Saskatchewan 2005 Report, supra note 17 at 3; Nova Scotia 2011 Report,
supra note 7 at 6.
(26) Alberta Law Reform Institute, Alberta Rules of Court Project:
Enforcement of Judgments and Orders (Consultation Memorandum No. 12.11)
(Edmonton, Law Reform Institute, 2004) at xiii, 1-2. [Alberta 2004
(27) British Columbia 2005 Report, supra note 2 at 1.
(28) Alberta 1991 Report, supra note 15 at 24-25; Nova Scotia 2011
Report, supra note 7 at 6; Saskatchewan 2005 Report, supra note 17 at 3;
British Columbia 2005 Report, supra note 2 at 16; Manitoba Law Reform
Commission, Review of the Garnishment Act (Report), (Winnipeg: Manitoba
Law Reform Commission, 2005) at 10.
(29) Alberta 2004 Report, supra note 26 at 7.
(30) Ibid at 23.
(31) Ibid at xv and 8.
(32) See: Alberta 1991 Report, supra note 15; Nova Scotia 2011
Report, supra note 7 at 6, 28; Saskatchewan 2005 Report, supra note 17
at 2-3; British Columbia 2005 Report, supra note 2 at 16, 18.
(33) Alberta 1991 Report, supra note 15; Nova Scotia 2011 Report,
supra note 7 at 6.
(34) Saskatchewan 2005 Report, supra note 17 at 4-5.
(35) Nova Scotia 2011 Report, supra note 7 at 6, citing Alberta
2004 Report, supra note 26 at xiv.
(36) Saskatchewan 2005 Report, supra note 17 at 8; Alberta 1991
Report, supra note 15 at 3, 27-28; Nova Scotia 2011 Report, supra note 7
at 6; British Columbia 2005 Report, supra note 2 at 16. See also:
Alberta Act, supra note 11, s 5; Newfoundland Act, supra note 10, s 11;
Saskatchewan Act, supra note 12, s 114; Uniform Act, supra note 13, s 7.
(37) New Brunswick 1976 Report, supra note 9 at 240.
(38) Ibid at 240-41.
(39) Saskatchewan 2005 Report, supra note 17 at 2.
(40) Alberta 1991 Report, supra note 15, vol 1 at 254; Nova Scotia
2011 Report, supra note 7 at 26-27; and British Columbia 2005 Report,
supra note 2 at 1.
(41) Saskatchewan 2005 Report, supra note 17 at 8.
(42) Notwithstanding its importance, this principle and its
correlative measures of enabling interested parties to contest an
enforcement officer’s decision will not be repeated throughout this
(43) New Brunswick 1985 Report, supra note 25 at 308.
(44) Dunlop, supra note 19 at 415-17. See also: Saskatchewan 2010
Report, supra note 21 at 141. See also Lyman R Robinson,
“Distribution of Proceeds of Execution: An Examination of the
Common Law, Creditors’ Relief Legislation, Modern Judgment
Enforcement Statutes and Proposals for Reform” (2003) 66 Sask L Rev
309 at paras 8-14 [Robinson]. A review of the history and objectives of
the Creditors Relief Act was also undertaken by Williamson in the New
Brunswick 1985 Report, supra note 25 at 308-313.
(45) Saskatchewan 2010 Report, supra note 21 at 141. See also
Robinson, supra note 44.
(46) Saskatchewan 2005 Report, supra note 17 at 3; British Columbia
2005 Report, supra note 2 at 1. The “consensus in Canada”
refers to Dunlop, supra note 19 at 1-3. The only exception cited in the
New Brunswick 1985 Report, supra note 25 at 310, was Law Reform
Commission of British Columbia, Report on Attachment of Debts Act
(Victoria: Law Reform Commission of British Columbia, 1976).
(47) Saskatchewan 2005 Report, supra note 17 at 8. See also British
Columbia 2005 Report, supra note 2 at 16, describing the Uniform Act.
The Newfoundland Act, supra note 10 and the Alberta Act, supra note 11
also make great strides in this direction even though both statutes
preserve garnishment as a distinct remedy, operating alongside seizure
(48) New Brunswick 1976 Report, supra note 9 at 253.
(49) Mareva Campania Naviera SA v International Bulk Carriers SA,
 2 Lloyd’s Rep 509 at 510. Prior to the development of the
Mareva injunction, courts had long held that a plaintiff could not
obtain an interlocutory injunction to restrain the defendant from
disposing of or dealing with his or her assets: Lister & Co. v
Stubbs, [1886-90] All ER Rep 797.
(50) Aetna Financial Services Ltd v Feigelman, I SCR 2 [Aetna
(51) Ibid at para 30.
(52) Ibid at para 25.
(54) Rules of Court, supra note 20, r 40.03(1).
(55) Canadian Imperial Bank of Commerce v Price (1987), 81 NBR (2d)
181 (CA) at 187-88 [Price].
(56) In Aetna Financial Services, supra note 50 at paras 41-43, the
Supreme Court of Canada ultimately found that a Mareva was not
appropriate. The defendant was a federally incorporated company with
authority to carry on business in Canada, and, in the course of doing
so, moved assets in and out the jurisdiction (Manitoba in this case). No
improper purpose was exposed, and there was no evidence of an intention
to move assets out of Canada.
(57) A J Bekhor & Co Ltd v Bilton,  2 All ER 565, at 576.
(58) Absconding Debtors Act, supra note 20, s 2.
(59) There appear to be less than l0 reported decisions dealing
with the Absconding Debtors Act.
(60) For example, pre-judgment attachment is allowed by the
Attachment of Debts Act, RSS 1978, c A-32, s 2.
(61) See: e.g. Osman Auction v Belland, 1998 ABQB 1095.
(62) See also: Saskatchewan Act, supra note 12 at Part II;
Newfoundland Act, supra note 10, s 27, which refers to an
(63) Bank of Montreal v Faclaris (1984), 48 OR (2d) 348 (HC).
(64) Price, supra note 55 at 187-88 and Montreal Trust Co of Canada
v Occo Developments Ltd, (1998) 197 NBR (2d) 347 (QB), at 3.
(65) Suggested, at least, by the Supreme Court of Canada in Aetna
Financial Services, supra note 50, at para 7.
(66) Alberta Act, supra note 11, s 17(2). See also New Brunswick
1994 Report, supra note 8, vol 1, proposed NBEJA, s 17(2)(a) [NBEJA
(67) Uniform Act, supra note 13, s 16(2).
(68) Alberta Act, supra note 11, s 17(2)(a).
(69) NBEJA 1994, supra note 66, s 18.
(70) Aetna Financial Services, supra note 50 at para 43.
(71) Under the Uniform Act, the applicant is, by default, is
required to post security. By contrast, the 1994 NBEJA, supra note 66, s
23(3) gives discretion to the Court to require security.
(72) See also NBEJA 1994, supra note 66, s 23(1).
(73) Memorials and Executions Act, supra note 20, s 33(1).
(74) PPSA, supra note 16, s 58(3).
(75) Insurance Act, RSNB 1973, c 1-12, s 157(2).
(76) Income Tax Act, RSC 1985, c 1 (5th Supp.).
(77) Insurance Act, supra note 75, s 1 “life insurance”
(78) Pension Benefits Act, SNB 1987, c P-5.1, ss 36(1), 57; General
Regulation, NB Reg 91-195, s 20. No reference is made in the General
Regulation to a DPSP as a prescribed “retirement savings
arrangement”. However, subsection 57(6) of the Pension Benefits Act
enables creditors under orders for support or maintenance to seize or
attach up to 50% of refunds of contributions with interest and other
exempted property under the Act, unless ordered by a court of competent
(79) Watt v Trail, 2001 NBCA 58, aff’d  NBJ No 515 (QB).
(80) Belliveau v Royal Bank of Canada,(2000) 224 NBR (2d) 354 (CA).
Although not considered by New Brunswick courts, the same reasoning may
also apply to RRIFs.
(81) Garnishee Act, supra note 20.
(82) Ibid s 31. Wages can, however, be garnished in the case of a
failure to pay spousal or child support or to pay federal taxes.
(83) In National Sea Products Ltd. v Caissie, (1987) 85 NBR (2d) 72
(QB), Miller J. held that section 31 of the Garnishee Act would not
apply to protect money owed to a self-employed fisherman for fish sold
and relates to “the contract for personal services and labour
(84) Memorials and Executions Act, supra note 20, s 11.
(85) Marital Property Act, SNB 1980, c M-1.1.
(86) Securities Transfer Act, SNB 2008, c S-5.8.
(87) Saskatchewan Act, supra note 12, s 37(1): Except as otherwise
provided in this Act, all property is subject to seizure and disposition
pursuant to this Act and to an order of the court made pursuant to this
(88) The Uniform Registered Plan (Retirement Income) Exemption Act,
ULCC 1999, online: ULCC <http://www.ulcc.ca/en/poam2/
(89) Alberta Law Reform Institute, Creditor Access to Future Income
Plans (Consultation Memorandum No. 11), (Edmonton: ALRI, 2002) at 38.
(90) Alberta Law Reform Institute, Exemption of Future Income Plans
(Final Report No. 91) (Edmonton: ALRI, 2004) at 43.
(91) New Brunswick 1994 Report, supra note 8 at 19.
(92) Saskatchewan Act, supra note 12, s 96(1). Similarly, the NBEJA
1994, supra note 66, defined income as “property of an enforcement
debtor which he or she has the right to receive which is the nature of
income from any source including an office, employment, property or
(93) Bankruptcy and Insolvency Act, RSC 1985, c B-3.
(94) Superintendent of Bankruptcy Canada, Directive No. 11R2-2012,
Surplus Income, online: Superintendent of Bankruptcy Canada
(95) Such an exemption is proposed in the Uniform Act, supra note
13, s 159(1)(e) and has been adopted by the legislation: Newfoundland
Act, supra note 10, s 131 (1)(h), Saskatchewan Act, supra note 12, s
93(2) and Alberta Act, supra note 11, s 88(g).
(96) New Brunswick 1994 Report, supra note 8, vol 1 at 18.
(97) The number of different legislative sources governing
enforcement is well illustrated in the definition of “enforcement
proceedings” found in the Creditors Relief Act, supra note 18, at
s2.1: “‘enforcement proceeding’ means any proceeding
authorized by the Absconding Debtors Act, Arrest and Examinations Act,
Creditors Relief Act, Garnishee Act, Judicature Act, Memorials and
Executions Actor the Rules of Court to be taken for the purpose of
enforcing a money judgment or for the purpose of enforcing the claims of
creditors against the personal property of a debtor”.
(98) Ibid, s 2.2(1).
(99) Registry Act, supra note 20.
(100) Memorials and Executions Act, supra note 20, ss 5-6. A
memorial of judgment is obtained from the Clerk of Court of Queen’s
Bench or the Registrar of the Court of Appeal.
(101) Land Titles Act, supra note 20.
(102) PPSA, supra note 16, ss 19, 20(l)(a). See also Catherine
Walsh, An Introduction to the New Brunswick Personal Property Security
Act, (Fredericton: New Brunswick Geographic Information Corporation,
1995) at 110 -11[Walsh], CIBC v CTV Television, 2005 NBQB 429 at paras
(103) PPSA, supra note 16, s 32 as well as Re Giffen  1 SCR
(104) PPSA, supra note 16, s 34.
(105) Land Titles Act, SNB 1981, c L-1.1 s 19(1).
(106) New Brunswick 1985 Report, supra note 25 at 84.
(107) Arrest and Examinations Act, supra note 20, s 30. In
practice, most of these examinations are conducted before the clerk of
(108) Ibid, s 45(1).
(109) Rules of Court, supra note 20, r 61.14.
(110) Ibid, r 33.13, 33.14.
(111) Alberta 2004 Report, supra note 26 at para 282.
(112) Ibid at para 283.
(113) Ibid at para 284. The authors reiterate this observation
based on their personal experience in New Brunswick.
(114) NB Government, online: <http://www2.gnb.ca/content/gnb/
(115) For e.g.: CBA Conference, November 4, 2011 “Juge,
greffier, sheriff : ce qu’ils ont a nous dire”. [CBA
(116) Saskatchewan 2005 Report, supra note 17 at 6.
(118) Ibid at 6-7.
(119) New Brunswick 1976 Report, supra note 9 at 249-50.
(120) Ibid at 275-276; New Brunswick 1985 Report, supra note 25 at
6-13; New Brunswick 1994 Report, supra note 8, vol 2 at Sum Rpt 2-4.
(121) New Brunswick 1994 Report, Ibid at Sum Rpt 4.
(122) Ibid at Sum Rpt 8.
(123) Ibid at Sum Rpt 9 and Saskatchewan 2005 Report, supra note 17
(124) Support Enforcement Act, SNB 2005, c S-15.5.
(125) The Family Support Orders Service (FSOS), online: New
Brunswick Government <http://www.gnb.ca/0062/
(126) CBA Conference, supra note 114.
(127) New Brunswick Justice and Consumer Affairs, online: New
Brunswick Government <http://www.gnb.ca/0062/fsos/
(128) Institute for Citizen-Centred Service, Service New Brunswick,
online: Institute for Citizen-Centred Service
(129) Nova Scotia 2011 Report, supra note 7 at 20-21.
(130) New Brunswick 1976 Report, supra note 9 at 245.
(131) Saskatchewan 2005 Report, supra note 17 at 6-7.
(132) New Brunswick 1976 Report, supra note 9 at 242.
(133) Uniform Act, supra note 13, s 29.
(134) Creditors Relief Act, supra note 18, ss 2.3(9), 2.3(13). The
latter section provides that “la] judgment creditor is not entitled
to share in the proceeds of a levy by the sheriff against the personal
property of the judgment debtor under this Act unless the creditor has
registered a notice of judgment under subsection 2.2(1).”
(135) Tamara M Buckwold and Ronald CC Cuming, Modernization of
Saskatchewan Money Judgment Enforcement Law (Interim Report) (University
of Saskatchewan, 2001) at 167-170, online: <http://www.qp.gov.sk.
(136) Ibid, at 169.
(137) British Columbia 2005 Report, supra note 2 at 180.
(138) New Brunswick 1994 Report, supra note 8, vol 1, at 9-10.
(139) Saskatchewan Act, supra note 12, ss 18-21.
(140) Saskatchewan 2010 Report, supra note 21 at 61. See also Land
Titles Act, 2000, SS 2000, c L-5.1, s 172-173.
(141) Land Titles, ibid, s 53(2).
(142) Walsh, supra note 102 at 111.
(143) PPSA, supra note 16, s 20(1). See also: Alberta Act, supra
note 11, ss 34, 42(1); Newfoundland Act, supra note 10, ss 48, 49;
Saskatchewan Act, supra note 12, s 23.
(144) Uniform Act, supra note 13, ULCC comment on s 35(1).
(145) British Columbia 2005 Report, supra note 2 at 90.
(146) Saskatchewan Act, supra note 12, s 29.
(147) See e.g.: Employment Standards Act, SNB 1982, c E-7.2,
Mechanics’ Lien Act, RSNB 1973, c M-6, Wage Earners Protection Act,
RSNB 2011, c 235, Real Property Tax Act, RSNB 1973, c R-2, Revenue
Administration Act, SNB 1983, c R-10.22.
(148) New Brunswick 1976 Report, supra note 9 at 29-30.
(149) Saskatchewan Act, supra note 12, s 27(3).
(150) PPSA, supra note 16, s 32. See also: Alberta Act, supra note
11, s 40; Newfoundland Act, supra note 10, s 57; Saskatchewan Act, supra
note 12, s 23; Personal Property Security Act, 1993, SS 1993, c P-6.2, s
32 [Saskatchewan PPSA ].
(151) PPSA, supra note 16, s 34. See also: Alberta Act, supra note
11, s 35(3); Newfoundland Act, supra note 10, s 50(3); Saskatchewan Act,
supra note 12, s 23; Saskatchewan PPSA, supra note 149, s 34.
(152) PPSA, supra note 16, s 30. See also Alberta Act, supra note
11, s 36; Newfoundland Act, supra note 10, s 52; Saskatchewan Act, supra
note 12, s 25.
(153) PPSA, supra note 16, s 14. See also: Saskatchewan Act, supra
note 12, ss 23(4)-(5).
(154) PPSA, supra note 16, ss 36 and 37. See also: Alberta Act,
supra note 11, s 37; Newfoundland Act, supra note 10, s 53; Saskatchewan
Act, supra note 12, s 24.
(155) PPSA, supra note 16, s 41. See also Alberta Act, supra note
11, s 38; the Newfoundland Act, supra note 10, s 54; Saskatchewan Act,
supra note 12, s 25.
(156) The NBJEA proposed by the authors would not adopt the same
qualifications to share the distributable fund and thus does not
recommend the creation of preferred payments for judgment creditors upon
(157) See: Alberta Act, supra note 11, s 42(2); Saskatchewan Act,
supra note 12, s 27(1); the Uniform Act, supra note 13, s 38(4).
(158) Robinson, supra note 44 at para 30.
(159) Uniform Act, supra note 13, ULCC comment on section 38(1).
See also: Alberta Act, supra note 11, s 42(1).
(160) Uniform Act, supra note 13, s 38(3).
(161) Saskatchewan Act, supra note 12, s 31. See also: Newfoundland
Act, supra note 10, s 72.
(162) Saskatchewan Act, ibid, s 30(2); Uniform Act, supra note 13,
(163) Uniform Act, ibid, s 40(4); Saskatchewan Act, supra note 12,
(164) Uniform Act, ibid, s 10, ULCC comment on s 40.
(165) Saskatchewan Act, supra note 12, ss 34(1), (2), 115.
(166) Saskatchewan 2010 Report, supra note 21 at 70.
(167) Ibid at 70 and Saskatchewan 2005 Report, supra note 17 at 66.
(168) New Brunswick 1985 Report, supra note 25 at 23.
(169) Uniform Act, supra note 13, s 41.
(170) Ibid, ULCC comment on s 40.
(172) Ibid, s 6, ULCC comment on section 40; Saskatchewan Act,
supra note 12, s 30(2)(b).
(173) Saskatchewan Act, supra note 12, ss 32, 35 and 35; Uniform
Act, supra note 13, s 42.
(174) Alberta 2004 Report, supra note 26 at para 284.
(175) Saskatchewan 2010 Report, supra note 21 at 18. See:
Assignments and Preferences Act, supra note 20.
(176) Alberta 2004 Report, supra note 26, at xiv-xv.
(177) Civil Enforcement Regulation, Alta Reg 276/1995 [Civil
(178) New Brunswick 1985 Report, supra note 25 at 87-88.
(179) Support Enforcement Act, supra note 124, s 12(3).
(180) New Brunswick 1985 Report, supra note 25 at 89.
(181) New Brunswick 1994 Report, supra note 8, vol 2 at Sum Rpt 31.
(182) Alberta 1991 Report, supra note 15, vol 1 at 59.
(183) Saskatchewan Act, supra, note 12, Part III, starting at s 11;
Newfoundland Act, supra, note 10, Part IV, s 64ff; Civil Enforcement
Regulation, supra note 177, Part 1.3; Uniform Act, supra note 13, Part
8, s 45ff.
(184) Support Enforcement Act, supra note 124, s 30(1).
(185) New Brunswick 1994 Report, supra note 8, vol 2 at Sum Rpt 31.
(186) Alberta 1991 Report, supra note 15 at 60.
(187) New Brunswick 1994 Report, supra note 8, vol 2 at Sum Rpt 32.
(189) Nova Scotia 2011 Report, supra note 7 at 32.
(191) Uniform Act, supra note 13, ss 45(1)(c)-(d); Saskatchewan
Act, supra note 12, s 15(1).
(192) Newfoundland Act, supra note 10, ss 65-66.
(193) Civil Enforcement Regulation, supra note 177, ss 35.09-35.18.
(194) Support Enforcement Act, supra note 124, ss 52(1), 56(3) and
(195) Memorials and Executions Act, supra note 20, ss 26(1)
(securities for money include cheques, bills of exchange, promissory
notes, bonds and specialties), 11, 12, 23(1), 24(1) (tangible property,
i.e., goods and chattels), 23.1-23.7 (securities and security
(196) See Rules of Court, supra note 20, r 61 generally, but also
the Memorials and Executions Act and the Garnishee Act, supra note 20.
(197) Sheriffs Act, RSNB 1973, c S-8, s 13.
(198) Rules of Court, supra note 20, r 61.08(4)
(199) Ibid, r 61.08(3).
(200) The Garnishee Act, supra note 20, does not apply to all
debts, but only to those debts which are “due absolutely and
without depending on any contingency”. See especially s 32(b).
(201) Ibid, s 5.
(202) Ibid, s 32(b).
(203) Ibid, s 6.
(204) Creditors Relief Act, supra note 18, s 35.
(205) Ibid, s 35(3).
(206) Recovery of Judgment Regulation, NB Reg 84-23, s 4, Schedule
(207) Arrest and Examinations Act, supra note 20, s 29.5.
(208) There is little case law in New Brunswick on the appointment
(209) Creditors Relief Act, supra note 18, s 4(1). The French
version of the Act states: “Lorsqu’il percoit une somme
(210) Dunlop, supra note 19 at 557-59.
(211) Ibid at 558.
(212) Creditors Relief Act, supra note 18, ss 4(1), 9(2).
(213) Under the present system, non-judgment creditors may obtain
certificates through a summary procedure which allows for sharing of
distribution proceeds or, alternatively, provides the certificate holder
with the opportunity to take out his or her own writ against debtor
property which is enforceable on its own terms. Williamson states,
however, that the procedure is “rarely used, [and] that it is quite
restricted under present legislation and that in some cases it does not
save costs because it will result in full scale legal proceedings only
in a different form”. See New Brunswick 1985 Report, supra note 25
(214) Creditors Relief Act, supra note 18, ss 3, 23.
(215) New Brunswick 1985 Report, supra note 25 at 314.
(216) See also Creditors Relief Act, supra note 18, s 35(1): the
sheriff may apply for an attaching order only where (1) there are in his
hands “several executions and claims” and (2) “there are
not, or do not appear to be, sufficient lands or goods to pay all and
his own fees”.
(217) Saskatchewan Act, supra note 12, s 38(1). See also
Saskatchewan 2010 Report, supra note 21 at 73.
(218) Saskatchewan Act, supra note 12, s 39.
(219) Saskatchewan 2010 Report, supra note 21 at 73.
(220) Saskatchewan Act, supra note 12, s 2(1)(ww).
(221) See e.g. ibid, Part VI; Uniform Act, supra note 13, Part 9.
These legislative provisions provide specific rules applicable to the
various forms of, and interests in, personal property, such as: goods,
fixtures, crops, leases and contracts, securities and security
entitlements, intellectual property and accounts. In addition, the
enforcement officer would possess the discretion to take any other steps
as may be appropriate having regard to the nature of the property.
(222) Uniform Act, supra note 13, s 52; Saskatchewan Act, supra
note 12, s 41.
(223) Uniform Act, supra note 13, s 52; Saskatchewan Act, supra
note 12, s 41.
(224) Saskatchewan Act, Ibid, s 41(2)(g).
(225) Saskatchewan 2010 Report, supra note 21 at 79.
(226) Ibid at 85 [citation and footnote omitted]. See e.g.: Kinnear
v Kinnear (1924), 26 OWN 111 (Ont SC).
(227) Uniform Act, supra note 13 at Part 9–Enforcement Proceedings
Against Personal Property, Division 4.
(228) Saskatchewan Act, supra note 12 at Part VII.
(229) Amanda CC Wickett, “Goodbye Garnishment: A Legislative
Note on Saskatchewan’s Proposed Approach to the Seizure of Present
and Future Accounts” (2007) 70 Sask L Rev 183 at para 23;
Saskatchewan 2005 Report, supra note 17 at 112-13; Saskatchewan Act,
supra note 12 at Part VII.
(230) NBJEA 1994, supra note 66, ss 136, 166.3-166.4.
(231) Support Enforcement Act, supra note 124, s 17.
(232) Effectively a blend of NBJEA 1994, supra note 66, s 83(2) and
Uniform Act, supra note 13, s 64(1).
(233) See especially Uniform Act, ibid, s 64(which provides
judgment creditors such a right).
(234) Saskatchewan 2010 Report, supra note 21 at 134.
(235) Saskatchewan Act, supra note 12, s 115.
(236) Ibid, s 98(2).
(237) Ibid, s 103(2).
(238) New Brunswick 1994 Report, supra note 8, vol 1 at 14.
(239) Uniform Act, supra note 13, s 144(1). See also Saskatchewan
Act, supra note 12, s 49(5).
(240) Saskatchewan Act, ibid, s 104.
(241) Alberta Act, supra note 11, s 72(1).
(242) Newfoundland Act, supra note 10, s 105(2).
(243) New Brunswick 1994 Report, supra note 8, vol 1 at 13.
(244) Uniform Act, supra note 13, s 172.
(245) Ibid, s 184; Saskatchewan Act, supra note 12, s 110; Alberta
Act, supra note 11, s 99; Newfoundland Act, supra note 10, s 154.
(246) Saskatchewan 2010 Report, supra note 21 at 141. See also:
Robinson, supra note 44 at paras 8-14.
(247) Saskatchewan 2010 Report, supra note 21 at 141.
(248) New Brunswick 1985 Report, supra note 25 at 313.
(249) Saskatchewan 2005 Report, supra note 17 at 177-78.
(250) Saskatchewan Act, supra note 12, s 107; Alberta Act, supra
note 11, s 97; Newfoundland Act, supra note 10, s 151(1).
(251) New Brunswick 1976 Report, supra note 9 at 32.
(252) Uniform Act, supra note 13, s 180(2)(a).
(253) Saskatchewan Act, supra note 12, s 107(2)(a).
(254) Ibid, s 170(3).
(255) Saskatchewan 2010 Report, supra note 21 at 143-44.
(257) New Brunswick 1985 Report, supra note 25 at 317-319.
(258) Assignments and Preferences Act, supra note 20.
(259) New Brunswick 1985 Report, supra note 25 at 317-319
(260) Newfoundland Act, supra note 10, s 153 (1).
(261) British Columbia 2005 Report, supra note 2 at 237-8.
(262) Saskatchewan Act, supra note 12, s 109.
(263) NBJEA 1994, supra note 66, ss 169-170.
(264) See also the Newfoundland Act, supra note 10, s 154(1);
Alberta Act, supra note 11, ss 99-100.
(265) Uniform Act, supra note 13, s 184(1)(d). Section 184(1)(d)
provides that the instructing judgment creditor’s claim cannot
exceed the lesser of(i) the sum of $2000 plus 15% of the amount by which
the remaining balance of the distributable fund exceeds $15 000, or (ii)
the amount of money in the distributable fund that is directly
attributable to the enforcement proceeding of that instructing judgment
(266) See Saskatchewan Act, supra note 12, s 109; Newfoundland Act,
supra note 10, s 154(1); Alberta Act, supra note 11, s 99.
(267) For e.g.: Uniform Act, supra note 13, s 184(1)(d) :
preference to judgment creditors is limited to $2,000 plus 15% of the
remainder of the fund exceeding $15,000 or such other sum as set by
(268) Saskatchewan 2010 Report, supra note 21 at 149.
(269) Walsh, supra note 102 at 112.
(270) Rules of Court, supra note 20, r 21.04, 21.05, 21.06.
(271) Uniform Act, supra note 13, s 187. See also: Alberta Act,
supra note 11, s 99; Newfoundland Act, supra note 10, s 154;
Saskatchewan Act, supra note 12, s 110.
(272) Uniform Act, supra note 13, s 188; Alberta Act, supra note
11, s 101; Newfoundland Act, supra note 10, ss 156, 159; Saskatchewan
Act, supra note 12, s 111.
(273) Uniform Act, supra note 13, s 185; Alberta Act, supra note
11, s 101; Newfoundland Act, supra note 10, s 154; Saskatchewan Act,
supra note 12, s 108. Exceptions are made pursuant to s 186 of the
Uniform Act for funds in excess of $2,000 or situations where two or
more judgment creditors have claims in excess of the distribution fund.
(274) New Brunswick 1976 Report, supra note 9 at 239.