Federal Courts Rules (SOR/98-106)

Marginal note:Non-performance of condition precedent

432 Where a person who is entitled to relief under an order subject to the fulfilment of a condition fails to fulfil that condition, the person is deemed to have abandoned the benefit of the order and, unless the Court orders otherwise, any other interested person may take any step that is warranted by the order or that might have been taken if the order had not been made.

Writs of Execution

Marginal note:Requisition for writ of execution

• 433 (1) Subject to subsection (2) and rules 434 and 435, a person entitled to execution may obtain a writ of execution by filing a requisition for its issuance.

• Marginal note:When writ may be issued

  (2) A writ of execution shall be issued only if, at the time a requisition therefor is filed, any period specified in the order for the payment of money or for the doing of an act required under the order has expired.

• Marginal note:Endorsement on writ

  (3) A writ of execution for the recovery of money shall be endorsed with a direction to the sheriff to levy

  • (a) the amount of money due and payable that is sought to be recovered;

  • (b) any interest thereon that is sought to be recovered, from the date of the order; and

  • (c) any sheriff’s fees and costs of execution.

Marginal note:Limitation on issuance

• 434 (1) A writ of execution to enforce an order shall not be issued without the leave of the Court if

  • (a) six or more years have elapsed since the date of the order;

  • (b) a change has taken place, by death or otherwise, in the persons entitled or liable to execution under the order;

  • (c) under the order a person is entitled to relief subject to the fulfilment of a condition that is alleged to have been fulfilled; or

  • (d) any personal property or movables sought to be seized under the writ are in the possession of a receiver appointed by the Court or of a sequestrator.

• Marginal note:Period of validity of order

  (2) An order granting leave under subsection (1) expires one year after it is made.

Marginal note:Leave to issue writ in aid

435 A writ of execution in aid of another writ of execution shall not be issued without the leave of the Court.

Marginal note:Ex parte motion for leave to issue writ

436 A motion for leave to issue a writ of execution under subsection 434(1) or rule 435 may be made ex parte.

Marginal note:Period of validity of writ

• 437 (1) A writ of execution is valid for six years after its date of issuance.

• Marginal note:Requisition to extend validity of writ

  (1.1) A person who is entitled to execution of a writ, including a writ the validity of which has been previously extended, may make a requisition to a designated officer to extend the validity of the writ.

• Marginal note:Conditions

  (2) The designated officer may extend the validity of a writ of execution for a further period of six years if

  • (a) the requisition is accompanied by an affidavit attesting to

    • (i) the date on which the writ was issued,

    • (ii) the fact that the writ is not wholly executed,

    • (iii) the fact that there has been an attempt to execute the writ in the previous six years or that the writ has been registered in a provincial registry, and

    • (iv) if the validity of the writ was previously extended, the date on which it was extended;

  • (b) the writ is not wholly executed; and

  • (c) the writ is not expired.

• Marginal note:Extension indicated on writ

  (3) If the validity of a writ of execution is extended under subsection (2), a new copy of the writ, bearing the date on which its validity was extended, shall be issued in Form 425A.

• Marginal note:Effect of extended writ

  (4) A writ the validity of which has been extended under subsection (2) continues without interruption.

Marginal note:Advance or security required

438 Before executing a writ of execution, a sheriff to whom the writ is directed may require the person at whose instance it was issued to make an advance, or to give security, sufficient to cover the costs of execution.

Marginal note:Notice to sheriff

• 439 (1) A person at whose instance a writ of execution is issued may serve a notice on the sheriff to whom the writ is directed requiring the sheriff, within such time as may be specified in the notice, to endorse on the writ a statement of the manner in which the sheriff has executed it and to send a copy of the statement to the person.

• Marginal note:Order to sheriff to comply

  (2) Where a sheriff fails to comply with a notice served under subsection (1), the person by whom it was served may apply to the Court for an order directing the sheriff to comply with the notice.

• Marginal note:Directions from Court

  (3) A person at whose instance a writ of execution is issued, a sheriff or any interested person may seek directions from the Court concerning any issue that is not addressed by these Rules that arises from the enforcement of an order.

Marginal note:Multiple writs for single order

440 Writs of execution of different types may be issued to enforce a single order, where the terms of the order so require.

Marginal note:Leave to issue writ of sequestration

• 441 (1) No writ of sequestration shall be issued without leave of a judge.

• Marginal note:Personal service of notice

  (2) Notice of a motion for leave to issue a writ of sequestration shall be personally served on the person against whose property it is sought to issue the writ.

Marginal note:Multiple writs of seizure and sale

• 442 (1) A person who is entitled to enforce an order by a writ of seizure and sale may request the issuance of two or more such writs directed to the sheriffs of different geographical areas, either at the same time or at different times, to enforce the order, but no greater total amount shall be levied under all such writs than would be authorized to be levied under a single writ.

• Marginal note:Different geographical areas

  (2) Where a person requests the issuance of two or more writs of seizure and sale directed to sheriffs of different geographical areas to enforce the same order, the person shall inform each sheriff of the issuance of the other writ or writs.

Marginal note:Second writ where sum unascertained

443 Where the payment of an ascertained sum of money and an unascertained sum of money or costs is ordered, if, at the time when the ascertained sum becomes payable, the unascertained sum or costs have not been assessed, the person who is entitled to enforce the order may request the issuance of a writ of seizure and sale to enforce payment of the ascertained sum and, after the unascertained sum or costs have been assessed, may request the issuance of a second writ to enforce payment thereof.

Marginal note:Order under $200

444 Where an order for payment of less than $200 does not entitle the plaintiff to costs against the person against whom a writ of seizure and sale to enforce the order is issued, the writ may not authorize the sheriff to whom it is directed to levy any fees or costs of execution.

Marginal note:Sale of interest in property

445 Any interest of a judgment debtor in property may be sold under a writ of seizure and sale.

Marginal note:Sale of real property or immoveables

446 Real property or immoveables shall not be sold under a writ of seizure and sale within a shorter period than that provided for by the laws of the province in which the real property or immoveables are situated or any longer period ordered by the Court.

Marginal note:Property bound by writ

447 Property is bound for the purpose of execution of an order as of the date of the delivery to the sheriff of a writ of seizure and sale.

Marginal note:Laws of province apply

448 In seizing, advertising for sale or selling property, a sheriff shall, except as otherwise provided in the writ or in these Rules, follow the laws applicable to the execution of similar writs issued by a superior court of the province in which the property was seized.

Garnishment Proceedings

Marginal note:Notice of garnishment

• 449 (1) Subject to rules 452 and 456 and on requisition filed by a judgment creditor in Form 449A, a designated officer may issue a notice of garnishment, in Form 449B, for the attachment of the following debts to satisfy an order for the payment of money:

  • (a) a debt owing or accruing from a person in Canada to a judgment debtor; or

  • (b) a debt owing or accruing from a person outside Canada to a judgment debtor, if the debt is one for which the person might be sued in Canada by the judgment debtor.

• Marginal note:Requisition — notice of garnishment

  (2) The requisition shall be accompanied by a copy of the order for the payment of money and an affidavit that contains the following information:

  • (a) the date and amount of any payment received since the order was made;

  • (b) the amount owing, including postjudgment interest;

  • (c) the manner in which the amount owing and the postjudgment interest are calculated;

  • (d) the address of the judgment debtor;

  • (e) the name and address of each garnishee;

  • (f) a statement indicating that the judgment creditor believes that the garnishees are or will become indebted to the judgment debtor and the grounds for the belief;

  • (g) if a garnishee is not then indebted but will become indebted to the judgment debtor, details with respect to the date on and the circumstances under which the debt will arise;

  • (h) details of the debts; and

  • (i) any other information that is necessary to establish the amount awarded and the judgment creditor’s entitlement.

• Marginal note:Service

  (3) The judgment creditor shall serve on each garnishee and on the judgment debtor a copy of the notice of garnishment and a copy of the requisition.

• Marginal note:Debts bound as of time of service

  (4) Subject to rule 452, a notice of garnishment binds the debts attached as of the time of its service on the garnishee.

• Marginal note:No payment to judgment debtor

  (5) Subject to rule 452, a garnishee who has been served with a notice of garnishment shall not pay the judgment debtor any amount owing to the judgment debtor without leave of the Court.

• Marginal note:Sworn declaration of garnishee

  (6) Within 21 days after the day on which the garnishee is served with the notice of garnishment, the garnishee shall file and serve on the judgment creditor and judgment debtor a sworn declaration of garnishee, in Form 449C, that contains

  • (a) a list of all debts owing or accruing to the judgment debtor by the garnishee by reason of an obligation incurred on or before the day of the garnishee’s declaration; and

  • (b) if the garnishee disputes liability to pay a debt claimed to be owing or accruing to the judgment debtor or claims the debt is for a lesser amount than that set out in the notice of garnishment, any relevant information, including any supporting documents not contained in the requisition for the issuance of a notice of garnishment.

Marginal note:Order or certificate not to be contested

449.1 In a proceeding under any of rules 449 to 465, a judgment debtor shall not contest the order or certificate that gave rise to the garnishment.

Marginal note:Payment into Court by garnishee

450 A garnishee who admits liability for a debt due to a judgment debtor shall pay into court the debt, or as much of the debt as is sufficient to satisfy the judgment, and give notice of the payment to the judgment creditor.

Marginal note:Garnishment order

• 451 (1) If a garnishee does not file a declaration of garnishee under subsection 449(6) or make the payment into court under rule 450, the Court may, on motion by the judgment creditor, order the garnishee to pay the amount owing to the judgment creditor as if the garnishee were the judgment debtor.

• Marginal note:Future payment

  (2) If a debt owed to a judgment debtor is payable at a future time or is subject to a condition when a notice of garnishment is issued, an order under subsection (1) may require that the garnishee pay the debt to the judgment creditor when the debt becomes payable or the condition is fulfilled.

• Marginal note:Enforcement

  (3) An order under subsection (1) may be enforced in the same manner as any other order for the payment of money.

Marginal note:Exemption from seizure

452 If a debt owing or accruing to a judgment debtor is in respect of wages or salary, no portion of the wages or salary that is exempt from seizure or attachment under the law of the province where the debt is payable shall be attached under a notice of garnishment.

Marginal note:Summary determination of liability

• 453 (1) If a garnishee disputes liability to pay a debt claimed to be owing or accruing to the judgment debtor or claims that the debt is for a lesser amount than that set out in the notice of garnishment, the Court may, on motion, summarily determine the garnishee’s liability or order that it be determined in any manner that the Court directs.

• Marginal note:Service and filing

  (2) The party bringing the motion shall serve and file the notice of motion on all other parties within the following time limit:

  • (a) in the case of a motion brought by the judgment creditor or judgment debtor, within 21 days after the day on which that party is served with the declaration of garnishee; and

  • (b) in the case of a motion brought by the garnishee, within 21 days after the day on which the judgment creditor or judgment debtor is served with the declaration of garnishee, whichever is the earlier.