Federal Courts Rules (SOR/98-106)

Marginal note:Discharge of liability

454 A payment made by a garnishee under rule 450 or in compliance with a notice of garnishment issued under subsection 449(1) or an order under rule 451 or 453, and any execution levied against a garnishee under such a notice of garnishment or order, constitutes a valid discharge of the garnishee’s liability to the judgment debtor to the extent of the amount paid or levied, even if the attachment is later set aside or the order or notice of garnishment from which it arose is later reversed.

Marginal note:Other interested person

• 455 (1) A person, other than a judgment debtor, who claims to have an interest in the debt sought to be attached may, by motion, state the nature of their interest and the relief sought.

• Marginal note:Determination of validity of claim

  (2) On motion brought under subsection (1), the Court may summarily determine the questions at issue between the claimants or order that they be determined in any manner that it directs.

Marginal note:Order for payment

• 456 (1) A judgment creditor shall not file a requisition under subsection 449(1) in respect of money that is standing to the credit of the judgment debtor in court. However, they may bring a motion for an order that the money, or a lesser amount sufficient to satisfy the order sought to be enforced and the costs of the motion, be paid to the judgment creditor.

• Marginal note:Limitation

  (2) If a motion is brought under subsection (1), the money to which the motion relates shall not be paid out of court until after the determination of the motion.

• Marginal note:Service of notice of motion

  (3) Unless the Court directs otherwise, the notice of a motion brought under subsection (1) shall be served on the judgment debtor and filed at least seven days before the day fixed for the hearing of the motion.

Marginal note:Costs related to requisition

457 Unless the Court directs otherwise, the costs of a requisition under subsection 449(1) and any related proceedings shall be retained by the judgment creditor out of the money recovered and be in priority to the judgment debt.

Charging Orders

Marginal note:Order for interim charge and show cause

• 458 (1) On the ex parte motion of a judgment creditor, the Court may, for the purpose of enforcing an order for the payment of an ascertained sum of money,

  • (a) make an order imposing an interim charge for securing payment of that sum and any interest thereon

    • (i) on real property or immoveables, or on an interest in real property or a right in immoveables, if the judgment debtor, directly or indirectly, owns the real property or immoveables, holds an interest in the real property, including a beneficial interest, or holds an immoveable right or has a claim to the immoveables, including as beneficiary under a trust or succession, in Form 458A, or

    • (ii) on any interest or right, including a beneficial interest, in any shares, bonds or other securities specified in the order, to which the judgment debtor is directly or indirectly entitled, in Form 458B; and

  • (b) order the judgment debtor to show cause, at a specified time and place, why the charge should not be made absolute.

• Marginal note:Service of show cause order

  (2) Unless the Court directs otherwise, an order made under subsection (1) shall be served on the judgment debtor and, where the order relates to property referred to in subparagraph (1)(a)(ii), on the corporation, government or other person or entity by whom the securities were issued, at least seven days before the time appointed for the hearing.

Marginal note:Show cause hearing

• 459 (1) At a show cause hearing referred to in paragraph 458(1)(b), the Court shall make the interim charge absolute, in Form 459, or discharge it.

• Marginal note:Enforcement of charging order

  (2) A charge made absolute has the same effect, and is enforceable in the same manner, as a charge made by the judgment debtor.

Marginal note:Disposition by judgment debtor

460 No disposition by a judgment debtor of an interest in property subject to an interim or absolute charge under rule 458 or 459 is valid against the judgment creditor.

Marginal note:Transfer of securities prohibited

• 461 (1) Unless the Court orders otherwise, no person or entity on whom an order was served under subsection 458(2) shall permit the transfer of any security specified in the order or pay to any person a dividend or any interest payable thereon.

• Marginal note:Liability of transferor

  (2) If, after service of an order under rule 458, a person or entity on whom it was served makes a transfer or payment prohibited by subsection (1), the person or entity shall be liable to pay to the judgment creditor an amount equal to the value of the security transferred or the amount of the payment made, as the case may be, or as much of it as is sufficient to satisfy the judgment debt.

Marginal note:Discharge or variance of charging order

462 The Court may, on the motion of a judgment debtor or any other person with an interest in property subject to an interim or absolute charge under rule 458 or 459, at any time, discharge or vary the charging order on such terms as to costs as it considers just.

Marginal note:Charge on interest in money paid into court

• 463 (1) On motion, the Court may, for the purpose of enforcing an order for the payment of an ascertained sum of money, by order, impose a charge for securing payment of the amount due under the order, and of any interest thereon, on any interest to which the judgment debtor is beneficially entitled in any money paid into court that is identified in the order.

• Marginal note:Application of rules re other charging orders

  (2) Subsection 458(1) and rules 460 and 462 apply, with such modifications as are necessary, to an order made under this rule.

Marginal note:Ancillary or incidental injunction

464 On motion, a judge may grant an injunction ancillary or incidental to a charging order under rule 458 or appoint a receiver to enforce a charge imposed by such an order.

Marginal note:Order prohibiting dealing with funds

• 465 (1) The Court, on the motion of a person

  • (a) who has a mortgage or charge on the interest of another person in money paid into court,

  • (b) to whom such an interest has been assigned, or

  • (c) who is a judgment creditor of a person entitled to such an interest,

  may make an order prohibiting the transfer, delivery, payment or other dealing with all or any part of the money, or any income thereon, without prior notice to the moving party.

• Marginal note:Service of notice of motion

  (2) Notice of a motion under subsection (1) shall be served on every person whose interest may be affected by the order sought.

• Marginal note:Costs

  (3) On a motion under subsection (1), the Court may order the moving party to pay the costs of any party or of any other person interested in the money in question.

Contempt Orders

Marginal note:Contempt

466 Subject to rule 467, a person is guilty of contempt of Court who

• (a) at a hearing fails to maintain a respectful attitude, remain silent or refrain from showing approval or disapproval of the proceeding;

• (b) disobeys a process or order of the Court;

• (c) acts in such a way as to interfere with the orderly administration of justice, or to impair the authority or dignity of the Court;

• (d) is an officer of the Court and fails to perform his or her duty; or

• (e) is a sheriff or bailiff and does not execute a writ forthwith or does not make a return thereof or, in executing it, infringes a rule the contravention of which renders the sheriff or bailiff liable to a penalty.

Marginal note:Right to a hearing

• 467 (1) Subject to rule 468, before a person may be found in contempt of Court, the person alleged to be in contempt shall be served with an order, made on the motion of a person who has an interest in the proceeding or at the Court’s own initiative, requiring the person alleged to be in contempt

  • (a) to appear before a judge at a time and place stipulated in the order;

  • (b) to be prepared to hear proof of the act with which the person is charged, which shall be described in the order with sufficient particularity to enable the person to know the nature of the case against the person; and

  • (c) to be prepared to present any defence that the person may have.

• Marginal note:Ex parte motion

  (2) A motion for an order under subsection (1) may be made ex parte.

• Marginal note:Burden of proof

  (3) An order may be made under subsection (1) if the Court is satisfied that there is a prima facie case that contempt has been committed.

• Marginal note:Service of contempt order

  (4) An order under subsection (1) shall be personally served, together with any supporting documents, unless otherwise ordered by the Court.

Marginal note:Contempt in presence of a judge

468 In a case of urgency, a person may be found in contempt of Court for an act committed in the presence of a judge and condemned at once, if the person has been called on to justify his or her behaviour.

Marginal note:Burden of proof

469 A finding of contempt shall be based on proof beyond a reasonable doubt.

Marginal note:Evidence to be oral

• 470 (1) Unless the Court directs otherwise, evidence on a motion for a contempt order, other than an order under subsection 467(1), shall be oral.

• Marginal note:Testimony not compellable

  (2) A person alleged to be in contempt may not be compelled to testify.

Marginal note:Assistance of Attorney General

471 Where the Court considers it necessary, it may request the assistance of the Attorney General of Canada in relation to any proceedings for contempt.

Marginal note:Penalty

472 Where a person is found to be in contempt, a judge may order that

• (a) the person be imprisoned for a period of less than five years or until the person complies with the order;

• (b) the person be imprisoned for a period of less than five years if the person fails to comply with the order;

• (c) the person pay a fine;

• (d) the person do or refrain from doing any act;

• (e) in respect of a person referred to in rule 429, the person’s property be sequestered; and

• (f) the person pay costs.

Process of the Court

Marginal note:To whom process may be issued

• 473 (1) Where there is no sheriff or a sheriff is unable or unwilling to act, a process, including a warrant for arrest of property under rule 481, may be issued to any person to whom a process of a superior court of the province in which the process is to be executed could be issued.

• Marginal note:Execution of process

  (2) Where a process is issued to a sheriff, it may, at the sheriff’s direction, be executed by a person authorized under provincial law to execute the process of a superior court of the province in which the process is to be executed.

Marginal note:Certificate of judgment

• 474 (1) Where an order made against the Crown for the payment of money for costs or otherwise is executory and

  • (a) where no appeal of the order has been instituted, the time allowed by law for an appeal from the order has expired, or

  • (b) where there has been an appeal from the order, the order has been affirmed or varied on appeal,

  the Administrator shall issue a certificate of judgment accordingly.

• Marginal note:Delivery of certificate

  (2) A certificate issued under subsection (1) shall be transmitted by the Administrator to the office of the Deputy Attorney General of Canada.

PART 13Admiralty Actions

Application of this Part

Marginal note:Application

• 475 (1) This Part applies to Admiralty actions.

• Marginal note:Application of other rules

  (2) Except to the extent that they are inconsistent with this Part, the rules applicable to other actions apply to Admiralty actions.

Definitions

Definition of designated officer

476 In this Part, designated officer means an officer of the Registry designated by an order of the Court.

Actions In Rem and In Personam

Marginal note:Types of admiralty actions

• 477 (1) Admiralty actions may be in rem or in personam, or both.

• Marginal note:Style of cause of action in rem

  (2) The style of cause of an action in rem shall be in Form 477.

• Marginal note:Style of cause of action in personam

  (3) The style of cause of an action in personam shall be as provided for in subsection 67(2).

• Marginal note:Defendants in action in rem

  (4) In an action in rem, a plaintiff shall include as a defendant the owners and all others interested in the subject-matter of the action.

Marginal note:Action against more than one ship

478 In an action against more than one ship in accordance with subsection 43(8) of the Act, each ship shall be named as a defendant in the statement of claim.

Marginal note:Service of statement of claim

• 479 (1) Subject to subsection (2), the statement of claim in an action in rem shall be served

  • (a) in respect of a ship or cargo or other property on board a ship, by attaching a certified copy of the statement of claim to some conspicuous part of the ship;

  • (b) in respect of cargo or other property that is not on board a ship, by attaching a certified copy of the statement of claim to the cargo or property;

  • (c) in respect of freight,

    • (i) if the cargo in respect of which the freight is owing is on board a ship, by attaching a certified copy of the statement of claim to a conspicuous part of the ship,

    • (ii) if the cargo in respect of which the freight is owing is not on board a ship, by attaching a certified copy of the statement of claim to the cargo, or

    • (iii) if monies payable for the freight are in the possession of a person, by personal service of the statement of claim on that person; and

  • (d) in respect of any proceeds paid into court in another proceeding, by filing a certified copy of the statement of claim in that proceeding.

• Marginal note:Alternate service of statement of claim

  (2) If access cannot be obtained to property in respect of which a statement of claim is to be served under subsection (1), the statement of claim may be served personally on a person who appears to be in charge of the property.