Should only make an order if just and equitable to do so taking into consideration the interest of those involved and third parties Is there a reasonable likelihood that the claim will be established? Standard is lower than a strong prima facie case Standard is higher than just determining if on the evidence there is a genuine issue to be tried – must show a reasonable likelihood that it will succeed Are there reasonable grounds for believing that the defendant is dealing with its exigible property or is likely to deal with that property otherwise than for the purpose of meeting its reasonable and ordinary business or living expenses? A rigourous specific requirement What is the usual or regular type of transaction that is engaged in by people in the defendant’s business Are there reasonable grounds for believing that the defendant is dealing with its exigible property or is likely to deal with that property in a manner that would be likely to seriously hinder the claimant in the enforcement of a judgment against it? There must be substance to an allegation founded in evidentiary support Look at: (1) timing of creation of the debts, (2) whether debt was created out of the ordinary course of business, (3) whether assets have disappeared, (4) whether assets have been sold to non-arm’s length parties for less than market value, (5) whether the value of the defendant’s exigible assets greatly exceeds the plaintiff’s claim NOTE: Where allegations of fraud as determined to have a reasonable foundation, it is not necessary to prove that actual dissipation of assets has occurred to meet this test (grounds for an inference) Mareva Injunction Injunction preventing the defendant from disposing of asset pending a judgment Same objective as an attachment order – asset-freezing order Governed by the Judicature Act s. 13(2) How do you get a Mareva Injunction? Implicit in s. 13(2), by application to the Court Court of Queen’s Bench (s. 1) Or on appeal Court of Appeal (s. 1) DOES NOT include Master in Chambers – their power does not include injunctions (Court of Queen’s Bench Act s. 9(3)(d)) When can application be made?
1(1)((r) “enforcement debtor” means a person against whom a writ is in force; 1(1)(p) “enforcement creditor” means a person in whose favour a writ is in force; Form 10 – form of the writ A money judgment may only be enforced under the CEA – through writ proceedings (s. 2) B. Scope of the Writ All property of the ED is subject to writ proceedings, except as provided (s. 2(b)) Section 33(2) – writ binds to all exigible property upon registry (non-exempt property) Personal property in PPR Land under the Land Titles Act What is property? 1(1)(ll) “property” includes (i) things, as well as rights or interests in things, (ii) anything regarded in law or equity as property or as an interest in property, (iii) any right or interest that can be transferred for value from one person to another, (iv) any right, including a contingent or future right, to be paid money or receive any other kind of property, and (v) any cause of action; Also see Stout Stout & Co. LLP v. Chez Outdoors Ltd. Ratio Defining property under the CEA (broad definition) Facts The plaintiff Stout obtained a judgment against the defendant Chez and issued a writ of enforcement The defendants held a Class T outfitter-guide permit issued under the Alberta Wildlife Act – allowed Chez to provide guide services for hunting big game Chez Outdoors also held “allocations” issued pursuant to the Wildlife Act regulation entitling it to legally contract with non-resident hunters for the provision of these services in relation to big game hunting Although Class T permits are not transferrable, allocations may be transferred to another eligible outfitter-guide with the approval of the Minister On the instruction of the enforcement creditor, “the bailiff effected seizure of ‘[a]ll Allocations, permits and entitlements issued by Alberta Professional Outfitters Society under the Alberta Wildlife Act’ held by the Defendant
Note: Distinguish duration of registration from duration of writ. Recall that the writ is in force only while the judgment in respect of which it is issued is in force (CEA s. 27). A judgment is not in force after 10 years from date it takes effect unless renewed (CEA s. 27 and Limitations Act s. 11). E. Registration Obligations of Enforcement Creditors An EC needs to update the registration to reflect the amount owing within 15 days of receiving money under the judgment (CER 41) 41 If an enforcement creditor (a) receives any money on account of the amount owing under a writ of enforcement, or (b) receives anything by way of satisfaction, either wholly or in part, of the amount owing under a writ of enforcement, the enforcement creditor must, within 15 days from the day that the enforcement creditor received that money or that satisfaction, register in the Registry a status report to amend the amount owing under the writ of enforcement If there is a stay of enforcement, EC needs to update in PPR withing 15 days 42 If an enforcement creditor enters into an agreement that provides that proceedings under a writ of enforcement are to be stayed or suspended, the enforcement creditor must, within 15 days from the day of entering into that agreement, register in the Registry a status report that discloses the fact that the proceedings are stayed or suspended, as the case may be.. Failing to update under section 41 or 42 does not invalidate the writ (CER s. 43) F. Discovering the Debtor’s Assets for Purpose of Enforcing Judgment Identify and locate the enforcement debtor's exigible property for purposes of enforcing judgment Financial report to be provided by enforcement debtor: CER s. 35.10 is mandatory on service of notice may be required annually status report indicating receipt of financial report to be registered by enforcement creditor in PPR and made available to other enforcement creditors upon request + payment of a fee Questioning of enforcement debtor under oath: CER ss. 35.11 - 35.12 is mandatory on service of notice may be required annually (or more often by order of the court)
(m) “distress” means anything done to exercise (i) a right of a landlord to distrain for unpaid rent. (uu) “writ proceedings” means any action, step or measure authorized by this Act to be taken for the purpose of enforcing a money judgment. What is Distress for Rent The landlord’s right to distrain for unpaid rent is the right to seize and sell the goods located on the rented premises to recover the rent arrears. CEA s. 104 makes the procedure that applies to seizure and sale of personal property in writ proceedings applicable to seizure and sale of goods by a landlord. It also offers priority rules that determine whether the right of distress can be exercised against goods in which a person other than the tenant claims an interest. Priority of a Writ v. Landlord’s Right of Distress Scenario 1: Writ is registered against ED, who is tenant of Landlord. Landlord instructs seizure of goods owned by tenant under distress for arrears of rent. Scenario 2: Writ is registered against ED, who is tenant of Landlord. Enforcement Creditor (EC) instructs seizure of goods in writ proceedings. ED is in arrears in rent due to Landlord when the goods are seized. The common law doctrine of in custodia legis Goods under seizure by the sheriff are “in the custody of the law” and cannot subsequently be seized by another claimant. As between a writ holder and a landlord, the first to seize under the authority of the sheriff will have priority. Unlikely that the default rule (s. 33(2)) will apply, as authority suggests that a right of distress is not an “interest” in the goods against which that right may be exercised A registered writ “binds” goods of an enforcement debtor but does not affect the ownership of the goods. Section 104(b) does not apply Sectio 104(c) means that a landlord has priority over a buyer in writ proceedings Looks like back to the common law “first to seize” ( Circa 1880 Imports Ltd v Antique Photo Parlour Ltd Ratio Priority goes to the first to seize, subject to the Statute of Anne (Pre- CEA decision) Facts Prior to April 1982, Circa obtained a judgement against Antique for $20,650 On April 16, 1982, Circa instructed the sheriff to attend at Antique’s premises and seize under the judgment
has failed to pay money to the clerk in accordance with this Part, the Court may grant judgment against the garnishee for the amount of the garnishee summons or a lesser amount as the Court considers appropriate in the circumstances. If any doubts that it is “employment earnings” should also check the “money owing from other sources” box Wayfarer Holidays Ltd. V Barcelo Ratio Courts have an equitable discretion to stay garnishee proceedings if there is risk of double payment Facts Both Sunquest and Canadian have been advised by representatives of the Bavaro Beach Hotel, if the funds are paid pursuant to the notice of garnishment and are not forwarded to ITASA, the hotel will not honour reservations of Sunquest and Canadian travellers upon their arrival in the Dominican Republic. Canadian deposed it cannot pay the disputed moneys into court or to the sheriff and at the same time protect the interests of its clients Sunquest also deposed it must make the required payments to protect its vacationers Issues Does the court have a discretion to stay garnishee proceedings on equitable grounds? On what basis might the court exercise the discretion? Decision No order for garnishment shall issue because of the real and substantial risk of double payment by the garnishees Reasoning A garnishee ought not to be placed in double jeopardy so that the garnishee is at risk of having to pay the same debt twice The risk of double payment must be a real risk and not a speculative or theoretical hazard On the material before me, the risk of double payment is real and substantial. Notes Double jeopardy for two reasons – one, would pay twice so clients could stay in the hotel, two, would potentially be subject to litigation in Dominican Republic In AB – s. 5 Re Sunstar Mfg Inc