Federal Courts Rules (SOR/98-106)

Marginal note:Performance by other person

431 Where a person does not comply with an order to perform an act, without prejudice to the powers of the Court to punish the person for contempt, on motion, the Court may order that

• (a) the required act be performed by the person by whom the order was obtained or by another person appointed by the Court; and

• (b) the non-complying person pay the costs incurred in the performance of the act, ascertained in such a manner as the Court may direct, and that a writ of execution be issued against the non-complying person for those costs.

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:Extension of validity of writ

  (2) On motion, where a writ has not been wholly executed, the Court may, before the writ would otherwise expire, order that the validity of the writ, including a writ the validity of which has previously been extended, be extended for a further period of six years.

• Marginal note:Conditions for execution of extended writ

  (3) Before execution of a writ the validity of which has been extended by an order under subsection (2),

  • (a) the writ shall be endorsed with a notice setting out the date on which the order was made; or

  • (b) the moving party shall serve a certified copy of the order on the sheriff to whom the writ is directed.

• 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 or a sheriff may seek directions from the Court concerning any issue 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.