UNSECURED DEBT RECOVERY IN...

UNSECURED DEBT RECOVERY

IN

SASKATCHEWAN

M. Kim Anderson Robertson Stromberg Pedersen

600, 105 – 21st Street East Saskatoon, SK S7K 0B3

August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.

Saskatchewan: Bar Admission Program i Debtor Creditor – Unsecured Debt Recovery in Saskatchewan

TABLE OF CONTENTS

I. INTRODUCTION ...............................................................................................................1

II. THE CREATION OF DEBT...............................................................................................3

III. ALTERNATIVE REMEDIES.............................................................................................4 A. SECURITY....................................................................................................................5 B. NON-CONSENSUAL SECURITY...............................................................................5 C. RIGHT TO REPOSSESSION .......................................................................................6 D. PERFORMANCE BONDS ...........................................................................................6 E. SETTLEMENT..............................................................................................................6

IV. INITIAL CONSIDERATIONS ...........................................................................................7 A. REVIEW THE SITUATION.........................................................................................7 1. Prospects of Enforcement ........................................................................................7 2. Costs of Litigating....................................................................................................8 3. Location of the Lawsuit ...........................................................................................8 4. Pre-judgment Remedies ...........................................................................................9 5. Pre-conditions to Enforcement ................................................................................9

B. THE RECURRENT DISCUSSION – “DEBT AND LIQUIDATED DEMAND”.....10 1. The Concept of “Debt or Liquidated Demand” .....................................................10 2. Attaching a “Debt Due or Accruing Due” .............................................................14

V. PRE-JUDGMENT REMEDIES ........................................................................................16 A. THE ABSCONDING DEBTORS ACT .........................................................................16 B. THE ATTACHMENT OF DEBTS ACT .......................................................................18 1. History and Nature of Remedy ..............................................................................18 2. The Supporting Documentation.............................................................................19 3. Effect of Pre-judgment Garnishee .........................................................................22

C. INJUNCTIVE RELIEF................................................................................................23 1. History and Nature of Remedy ..............................................................................23 2. Requisites for the Injunction..................................................................................24 3. Scope of the Injunction ..........................................................................................25

VI. THE JUDGMENT .............................................................................................................26 A. INSTALMENT PAYMENTS .....................................................................................26 B. STAY OF EXECUTION .............................................................................................28 C. BANKRUPTCY AND CONSOLIDATION ORDERS ..............................................28


ii Saskatchewan: Bar Admission Program Debtor Creditor – Unsecured Debt Recovery in Saskatchewan

VII. EXAMINATION IN AID OF EXECUTION....................................................................28 A. THE NEED FOR INFORMATION ............................................................................28 B. EXAMINATION IN AID OF EXECUTION..............................................................29

VII. ENFORCEMENT AFTER JUDGMENT..........................................................................31 A. THE WRIT OF EXECUTION.....................................................................................31 1. History of the Writ .................................................................................................31 2. Nature of the Writ ..................................................................................................32 3. Obtaining and Registering a Writ ..........................................................................33 4. Effect on Personal Property ...................................................................................35 5. Effect on Real Property..........................................................................................36 6. Seizure and Sale of Personal Property ...................................................................36 7. Sale of Real Property .............................................................................................37 8. Discharge of Writ...................................................................................................38

B. POST-JUDGMENT GARNISHMENT.......................................................................38 1. Garnishment of the Crown.....................................................................................39 2. Wages and Salaries ................................................................................................40 3. Default by Garnishee .............................................................................................40 4. Payment Out of Court ............................................................................................41

IX. EXEMPTIONS ..................................................................................................................41 A. GENERAL RULES FOR EXEMPTIONS ..................................................................42 B. THE EXEMPTIONS ACT ............................................................................................43 C. THE SASKATCHEWAN FARM SECURITY ACT .......................................................45 D. MISCELLANEOUS EXEMPTIONS..........................................................................47 E. RIGHTS TO PROCEEDS OF SALE OF EXEMPT PROPERTY..............................48

X. DISTRIBUTION UNDER THE CREDITORS’ RELIEF ACT..........................................49 A. COMMON LAW.........................................................................................................49 B. THE CREDITORS’ RELIEF ACT ...............................................................................50 1. Process ...................................................................................................................50 2. Scope......................................................................................................................50 3. Certification System...............................................................................................52 4. Priorities.................................................................................................................53

XI. CONCLUSION..................................................................................................................53

XII. ACKNOWLEDGEMENTS...............................................................................................54


Saskatchewan: Bar Admission Program iii Debtor Creditor – Unsecured Debt Recovery in Saskatchewan

PRECEDENTS: Garnishee Summons ..................................................................................................................P - 1 Affidavit in Support of Garnishee Summons.............................................................................P - 3 Affidavit of Service of Garnishee Summons .............................................................................P - 5 Memorandum to the Judge Seeking Payment Out of Court ......................................................P - 7 Draft Ex Parte Order for Payment Out of Court........................................................................P - 9 Appointment for Examination in Aid of Execution.................................................................P - 11 Judgment ..................................................................................................................................P - 13 Præcipe for Writ of Execution .................................................................................................P - 15 Writ of Execution.....................................................................................................................P - 17


Saskatchewan: Bar Admission Program 1 Debtor Creditor – Unsecured Debt Recovery in Saskatchewan

I. INTRODUCTION

Many law students avoid courses in debtor/creditor law. The rationale appears to be that they are

more interested in other matters, such as tort law, matrimonial law, constitutional law or

municipal law. Collecting unsecured debts for creditors does not seem very appealing.

It is not until the student enters practice that he or she comes to realize that the collection of

consensual debt is but a small part of debtor/creditor law.

Almost every lawsuit ends with a monetary judgment. This is the case where:

(a) a creditor sues and obtains a judgment on a consensual debt.

(b) a tort claimant has his or her damages quantified by the trial judge.

(c) costs are awarded to the successful plaintiff or defendant.

Accordingly, it is a rare case where civil litigation does not end with a debt of some description.

If that debt is paid promptly and willingly, so much the better. However, a judgment creditor is

often confronted by:

(a) a judgment debtor who has dissipated assets prior to the judgment being rendered.

(b) a recalcitrant judgment debtor who refuses to satisfy the judgment.

(c) competing creditors who are also trying to satisfy their judgments.

For further discussion on this, and the conceptual organization of debtor/creditor law generally,

see Stefan Reisenfeld, Cases and Materials on Creditors Remedies and Debtors’ Protection, (3d

ed. 1979).

Accordingly, every litigator ought to have an understanding of debtor/creditor law, of pre-

judgment remedies, the mechanics of obtaining judgment and of judgment enforcement.


2 Saskatchewan: Bar Admission Program Debtor Creditor – Unsecured Debt Recovery in Saskatchewan

Commercial lawyers should also have an understanding of debtor/creditor law as they will be

frequently asked to provide opinions with respect to the enforcement of monetary and other

contractual obligations.

Arriving at that understanding is not easy.

Debtor/creditor law is a body of law with diverse and obscure origins. These include the

common law, equity, received English statutes, old (and often unrevised) provincial statutes and

the Rules of Court.

These difficulties are compounded by the fact that, increasingly, commercial transactions span

provincial and international boundaries and issues arise with respect to conflict of law rules,

reciprocity of enforcement statutes and other inter-jurisdictional issues.

Moreover, even with what appears to be simple matters, the obscurity of this body of law is

compounded by the often unsatisfactory nature of the case law. As Dunlop notes:

Creditors’ remedies law is rarely Supreme Court of Canada litigation. When it comes to court at all, it is likely to be argued at the chambers or trial court level by lawyers who are very conscious that their clients are not prepared to throw good money after bad.

C.R.B. Dunlop, Creditor-Debtor Law in Canada (1981).

Accordingly, any paper on the subject must consider a myriad of unsettled and confusing issues

such as garnishee proceedings, exemptions from seizure, enforcement against life insurance

policies and RRSPs, equitable execution and charging orders, to name a few.

Moreover, to render the subject manageable, instruction in the area often attempts to differentiate

debtor/creditor law from the body of law surrounding secured transactions, and that surrounding

bankruptcy and corporate restructuring. While the center of each of these respective bodies of

law clearly departs from that of the others, there is a necessary inter-relationship, and any

arbitrary boundary, though designed to make the subject manageable, may result in confusion or

a lack of understanding of how the concepts work at their periphery.



What follows is a paper which is designed as a compromise between those who have studied

debtor/creditor law (and the related areas in detail) and those who have not. It suffers from the

difficulties identified above.

II. THE CREATION OF DEBT

In many of the academic works (including that of Dunlop), substantial time is spent to define the

concept of “debt”, to distinguish it from other obligations which may arise.

This exercise is often justified on the basis that certain remedies are available where a claim

sounds in “debt” and are not available to other claimants.

Nevertheless, the subject descends into the parsing of dictionary definitions, discussions on the

meaning of Latin and other rather unsatisfactory distinctions.

See, for instance, Alm v. Tyrone Hotels (1963), 42 WWR 297 (Sask) Q.B.

The more recent trend has been to depart from this type of analysis and to deal with the

availability of remedies as a matter of interpretation (both of statute and case law), as can be seen

from some of the discussion which will follow.

It therefore makes little sense to discuss such distinctions as a general matter.

Accordingly, for general purposes, it is useful to define “debt” as simply being:

(a) a monetary obligation.

(b) for a sum certain, or a sum which can be calculated in relatively simple fashion (for example the calculation of interest).

(c) owing from one or more persons or to one of more persons.


4 Saskatchewan: Bar Admission Program Debtor Creditor – Unsecured Debt Recovery in Saskatchewan Debt can be consensual. The classic case of consensual debt is where the debtor borrows a sum

certain of money from a creditor. The obligation is evidenced by a promissory note. The

amount and nature of the obligation is apparent on the face of the instrument and requires no

further definition. A debt can also arise by operation of law. Such debt is created where a court considers a cause

of action brought by one party against another, and determines, for example:

(a) the monetary sum to be placed upon a claim for damages.

(b) the monetary sum to be placed upon a claim for quantum meruit or quantum valebat.

(c) the amount to be awarded to a successful litigant for costs. In each case, the nature of the debt obligation is the same. The only difference is whether the

debtor has created that obligation by consent or whether a court has created it, instead.

III. ALTERNATIVE REMEDIES

Anyone who studies debtor/creditor law soon comes to realize that the unsecured creditor finds

him or herself in an unenviable position. An unsecured creditor may have to enforce judgment without the cooperation of the debtor. An

unsecured creditor may have to enforce the obligation, and then share the proceeds with other

unsecured creditors. Most importantly, though, the unsecured creditor often finds him or herself taking the lowest

priority, behind those who hold a perfected security interest and those who hold claims granted a

higher priority than the ordinary unsecured creditor (such as the Crown). Even where the unsecured creditor has no competition in realizing on his or her judgment, the

judgment debtor might prove elusive in terms of hiding assets or may simply have no assets

available at all.



For this reason, any unsecured creditor (or any claimant whose debt will create an unsecured

debt) should consider whether there are any alternatives.

While these alternatives fall outside the scope of this paper, it may be useful to look at some of

the possibilities whereby a creditor or claimant can avoid ranking as a simple unsecured creditor.

A. SECURITY

Where a debt arises as a result of consent, the creditor ought, at all times, to consider whether a

condition of that credit is that the debtor grants security to the creditor.

In some cases, this is not practical, either because the debtor has already granted assets as

security to other lenders, or where the transactional costs of taking such security outweigh the

benefit.

Nevertheless, every credit granter ought to consider whether there is some way in which it can

rank as a secured creditor, rather than as unsecured.

B. NON-CONSENSUAL SECURITY

In certain circumstances, an interest in the debtor’s property will arise by operation of law, rather

than by consent.

Such non-consensual security is generally referred to as a “lien”. Liens traditionally arose at

common law but such common law liens have recently been abolished by the provincial

legislature. Nevertheless, certain liens exist by reason of lrovincial statute, such as those found

in the Builders’ Lien Act, the Commercial Liens Act, the Threshers’ Lien Act, and the

Woodmen’s Lien Act. As well, liens may arise as a result of federal law, such as those found in

the Canada Shipping Act.



Where the creditor is a farmer, fisher or agriculturist, the farmer may be entitled to a first charge

on the debtor’s inventory in certain limited circumstances where a Receiver or Trustee in

Bankruptcy has been appointed over the assets of the debtor. Certain limited criteria must be

met, and timeliness is a factor. Depending on the amount of the creditor’s claim, this may be a

good reason to petition a debtor into bankruptcy.

C. RIGHT TO REPOSSESSION

In certain circumstances, an unsecured creditor may still have a right to repossession. Generally,

this arises in circumstances where a Trustee in Bankruptcy or a Receiver is appointed, and where

goods have been supplied recently to the debtor. In such circumstances, s. 81.1 of the

Bankruptcy and Insolvency Act provides a limited right for a supplier to repossess goods. (If the

volume of goods supplied is substantial, this may be a good reason to petition the debtor into

bankruptcy.)

D. PERFORMANCE BONDS

In certain circumstances, the debtor may be licensed by municipal, provincial or federal

authority. The licensing requirements may include that of a performance bond. In other

circumstances, such as construction projects, a contractor is required to purchase a bond. If a

bond is available, once judgment is obtained, the judgment creditor may be in a position to claim

against the performance bond and satisfy his or her judgment in that fashion.

E. SETTLEMENT

In certain circumstances, you may conclude that the debtor has little or no assets, and be rightly

pessimistic about the chances of recovery. Where such circumstances exist, the creditor should

rightly think about discussing settlement with the debtor, with a view to possessing a “bird in the

hand”, rather than a non-recoverable judgment.



IV. INITIAL CONSIDERATIONS

A. REVIEW THE SITUATION

In determining the advisability of legal proceedings to recover or to defend against a claim for

debt or damages, it is useful to examine the entirety of the circumstances at the outset, in an

exercise similar to that undertaken by a commercial lawyer when evaluating a commercial

transaction and offering an enforcement opinion before funds are advanced. For conceptual reasons, it may assist to review the recovery process in reverse order.

1. Prospects of Enforcement

Just as a lender will evaluate the prospect of recovery from a borrower before advancing funds, a

similar evaluation ought to take place with respect to the chances of recovery where a lawsuit is

on the verge of being commenced. If acting for a potential plaintiff, undertake as thorough a review as possible of the potential

defendant’s financial situation. Review all information sources available. Similarly, if acting for

a potential defendant, the same process ought to be undertaken. Where there are few resources available for the fight, thought ought to be given to the prospect

of settlement on the basis of the economic reality. Where Defendant can provide a statutory

declaration disclosing a lack of funds, a nominal settlement may be advantageous to both sides.

It prevents each wasting resources on a lawsuit, and brings certainty to the situation. Where assets do exist in the hands of the prospective defendant, give consideration to their

exigibility, as exempt assets do not assist a judgment creditor. Consider their location and their nature, as recourse and the remedies available will vary

according to the nature of the underlying asset. For example, where the assets available are held

on Reserve or are monies protected by the Indian Act (Canada), recourse may be limited.



Advise your client of the prospects of success in recovering any money at the end of the day. On

the others side of the equation advise your client of the costs of defence and the prospects of a

better result from other actions such as a proposal to creditors, if appropriate.

2. Costs of Litigating

Examination of these costs is very important and may lead to some important decisions being

made in framing a lawsuit.

For example, if there appears to be little dispute about the principal amount owing, but there is

some degree of disagreement about interest payable, consider whether it might be appropriate to

abandon a claim for interest. The cost saving may outstrip the amount recovered.

Similarly, where the amount owing is near the threshold of $50,000 for the simplified procedure,

you might consider whether to waive the excess and proceed under Part Forty.

3. Location of the Lawsuit

As Canadian courts become more willing to recognize judgments granted in another jurisdiction,

it becomes less necessary to chase a debtor into its home jurisdiction in order to obtain judgment.

Having said that, before commencing, consider the various costs involved in litigating in another

jurisdiction as opposed to litigating closer to home, and then seeking to register the judgment.

Consider the law of that jurisdiction and whether it will readily honour a judgment from another

jurisdiction. Consider the remedies available in the various jurisdictions.

Then make an informed choice.

Similarly, when acting for a debtor, no longer assume that a lawsuit commenced elsewhere will

be difficult to enforce in the debtor’s home jurisdiction. This protection is eroding daily.



4. Pre-judgment Remedies

The availability and desirability (and cost) of pre-judgment remedies ought to be considered and

raised with the potential plaintiff. These ought to be considered and discussed with the potential

defendant as well.

During these discussions and in offering any advice, a solicitor ought to take care to observe

ethical requirements. Pre-judgment remedies may only be employed as a means to secure

judgment, not as a hammer to extract a settlement. Similarly, defendants arranging their affairs

must take care not to cross the line between prudent management, and fraudulent conveyances or

preferences.

5. Pre-conditions to Enforcement

While important, pre-conditions to enforcing an obligation are often overlooked.

For example, where the debtor has agreed to repay a creditor on demand, it logically follows that

demand must be made before any enforcement can ensue. Similarly, often when dealing with

secured debt, there is a requirement that demand for payment must be made prior to commencing

legal action (or seizure proceedings).

See, for example, Royal Bank of Canada v. G.L.B. Holdings Ltd., [1998] S.J. No. 665 (Q.B.).

In other circumstances, there may be statutory pre-conditions, even where the creditor only seeks

to recover an unsecured judgment. These include, but are not limited to the following:

(a) where the creditor seeks judgment for an amount which is otherwise secured by a mortgage, permission to commence the action is required pursuant to the Land Contracts (Actions) Act or pursuant to the Saskatchewan Farm Security Act. This requirement applies even where the creditor intends to forego the security. Note that this requirement does not apply to a guarantor of the debt, but only to one who covenants to pay in the mortgage.



(b) in certain circumstances there is a need to proceed with a claim against someone who is

an undischarged bankrupt. This need may arise where it is necessary to quantify a claim so as to claim in the bankruptcy of that person, or whether it is necessary to quantify that claim for the purposes of claiming on insurance or a bond. The need may also arise where the claim is one which will not be discharged at the conclusion of the bankruptcy. In such circumstances, leave to commence the action must be sought pursuant to the Bankruptcy and Insolvency Act.

(c) where a creditor holds security but is bringing a claim for an unsecured judgment against

a debtor, and where that debtor is a farmer, then notice must be given pursuant to the provisions of the Farm Debt Mediation Act.

Otherwise, for the better part, the only pre-condition to obtaining a remedy against a debtor or

defendant is commencement of a court action.

B. THE RECURRENT DISCUSSION – “DEBT AND LIQUIDATED DEMAND”

Certain pre-judgment remedies are available where there is a risk that a defendant will seek to

hide his or her assets, dissipate them, or otherwise be unable to pay a judgment.

Certain of these remedies are restricted to those who have a claim for a consensual debt. Certain

are available to all claimants.

Similarly, certain post-judgment remedies are only available where there is a debt owing to the

judgment debtor.

Accordingly, as these issues bear throughout the discussion on remedies, it may be useful to

dispose of them early.

1. The Concept of “Debt or Liquidated Demand”

a. Historical Analysis and Anomalies

Certain of the pre-judgment remedies are available only if the plaintiff’s action is for payment of

a “debt or liquidated demand”.


Saskatchewan: Bar Admission Program 11 Debtor Creditor – Unsecured Debt Recovery in Saskatchewan This is a determination which is often as difficult as it is vital. At one time, it appeared that the courts looked at general concepts and particularly to the old

forms of action brought before reform of the judicial system. These were used in determining

whether a claim sounded in “debt or liquidated demand”. Alm v. Tyrone Hotels (1963), 42 W.W.R. 297 (Sask) Q.B. Yet, oddly, a line of cases developed in Saskatchewan, holding that a claim sounding in quantum

meruit was, for the purposes of these remedies, a “debt or liquidated demand”. First examine the essence of a liquidated demand which is that once the contract is established,

the ascertainment of the amount due becomes simply a matter of calculation. Contrast this with the case of quantum meruit, where the plaintiff establishes the provision of a

service for which the defendant is under obligation to pay (although not in contract). It becomes

necessary for the court to determine what services are worth. This cannot be simply a matter of

calculation only. The inescapable conclusion is that the latter cannot be a liquidated demand. This was the finding

in a number of older Saskatchewan cases, where the courts concluded that quantum meruit was

not a debt or liquidated demand. See Wright v. Galisheff (1948), 1 WWR 1082 at 1083 (Sask D.C.). Yet other cases went on to hold that a quantum meruit claim fell within the definition, and ruled

that such a claim could therefore support pre-judgment attachment proceedings. In 1994, Mr. Justice McLean of the Saskatchewan Court of Queen’s Bench was required to

reconcile the rather plain truth of the foregoing, with the Saskatchewan line of cases to the

contrary. His Lordship clearly recognized the impossibility of reconciling the two cases, but

considered himself bound by the authority which held that quantum meruit constituted a “debt or

liquidated demand”.



Lorette v. Harvey, [1994] S.J. No. 391 (Q.B.). Thus, while the original series of decisions may not be supportable in concept, there is a

sufficient body of decided cases which act as authority for the proposition. b. The Recent Trend

More recently, the courts have ceased to focus on the old causes of action and the general

concept of debt. They have, instead, interpreted the concept of liquidated demand much more

broadly than had formerly been the case. For example, in the case of Royal Bank of Canada v. Tarasoff, the term “liquidated demand” was

very widely interpreted. The Statement of Claim referred to the claim money being subject to a

trust in favour of the Plaintiff and alleged the tort of conversion, yet the Court stated that

Where the primary claim is for a money judgment in an ascertained amount the action will usually be characterized as one for debt or liquidated demand…

Royal Bank of Canada v. Tarasoff (1991), 84 Sask. R. 239 (Q.B.). Since that time, the concept has found continued expression in the case law, and the Court of

Appeal has stated:

Since s. 3 of the Attachment of Debts Act requires that a claim be for a “debt or liquidated demand”, it is axiomatic that the nature of the claim must be discernable from the allegations sworn to in the material filed in support of the prejudgment garnishee summons. A court must be able to determine whether the claim is truly one for debt or liquidated demand. But as Professor Fridman has indicated: whether a claim for such a sum of money is based on contract, restitution or equitable cause of action is not relevant.

Ross v. HVLD Systems (1997) Ltd. (1999), 172 Sask. R. 261 (C.A.). Madam Justice Jackson, for the Court, went on to say:

The question is whether the amount sued for is liquidated. This does not mean that a plaintiff can simply claim an amount and then say it is a claim for a liquidated demand. There must be sufficient facts alleged so as to permit the Court to determine whether the claim is one for debt or liquidated demand. But a Court is loathe, at this very preliminary stage of the litigation, to make comments which could be taken as determining whether the plaintiff has a cause of action. The Court balances the strict administration of the use of prejudgment garnishment with the preservation of the plaintiff's right to a determination after trial of the legitimacy of the cause of action claimed.


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Ross v. HVLD Systems (1997) Ltd., supra.

Even given the broadening of the principles, aside from the anomalous favour granted to

quantum meruit (and one would therefore presume quantum valebat) claims, where the court

must intervene to determine the amount at stake, the claim cannot be said to be for a “debt or

liquidated demand”.

Having said this, the case law is unsettled, and is evolving.

Further issues arise with respect to whether a claim is for a “debt or liquidated demand”, and the

case law ought to be monitored carefully.

For example, at one time, the case law appeared to hold that a claim on a guarantee was not one

for a “debt or liquidated demand”. However, more recently, that case law has been overturned.

Canadian Imperial Bank of Commerce v. International Brokers (1994), 120 Sask R. 305 (C.A.).

Yet, having said this, we appear to still be confronted by the decision in Bank of Nova Scotia v.

Ken-Don Farms, where it was held by Mr. Justice Matheson that a claim for judgment in a

mortgage debt could not found a pre-judgment Garnishee Summons.

Bank of Nova Scotia v. Ken-Don Farms (1984), 37 Sask. R. 111 and 308 (Sask. Q.B.).

One interpretation of the decision in Ken-Don is to hold that the claim on the mortgage debt is

not a liquidated demand. However, this cannot be reconciled with the clear fact that it is.

Rather, what appears to be happening is a policy choice on the part of the court to force the

mortgagor to have recourse first to the land, before seeking to enforce judgment on the debt.

While understandable, it is by no means clear that the practice can find any support in legislation

or the underlying jurisprudence. Nevertheless, since the decision, there appear to have been no

efforts made at pre-judgment garnishment involving a mortgage debt.



2. Attaching a “Debt Due or Accruing Due”

The issue as to whether an obligation is a “debt or liquidated demand” bears on whether certain

pre-judgment remedies are available, such as pre-judgment attachment.

However, a second consideration of the concept of debt arises from the requirement that, even

post-judgment, attachment is only available where the defendant or judgment debtor is owed a

“debt due or accruing due” from by the garnishee.

What makes “debts due or accruing due” is an elusive test.

Debts subject to attachment include present debts due and payable.

They also include and present debts due but not payable until the future. In such circumstances,

while the garnishee may not be liable to pay the debt into court until the time for payment arises,

the debt is nevertheless attached by the Garnishee Summons.

Bank of Montreal v. I.M. Krisp Foods Ltd., [1996] S.J. No. 655 (C.A.).

Debts which are contingent, conditional or subject to uncertainty about their existence in the

future are, generally speaking, immune from garnishment.

Consider the following examples:

(a) Mortgage Payments: Both present and future mortgage payments have been held garnishable as debts due or

accruing due by creditors of the mortgagee. Unlike rent payments or payments under an agreement for sale, mortgage payments are an unconditional liability. Only time need pass before the payment is due.

MacPherson Fruit Co. v. Hayden (1905), 2 W.L.R. (N.W.T.S.C.).

(b) Rent: Future rent payments are unattachable although current rent due is attachable. Morse v. Lyone (1917), 10 Sask. L.R. 357.



See, also, Saskatchewan Wheat Pool v. Sebastian, Q.B. 1296, J.C. of Regina,

(unreported) Mr. Justice Hrabinsky, July 12, 1991 where one plaintiff served the Garnishee Summons before rent was due and failed; the other plaintiff served the Garnishee Summons at a later date when the rent was due and succeeded.

(c) Inheritance: Where the debtor is entitled to a specific bequest and the executors have agreed to pay the

inheritance it is attachable. It may not be before this time. Strong v. Culver, [1919] 1 W.W.R. 979 (Sask. C.A.).

(d) Term Deposits: After the decision in I.M. Krisp, questions about payment in future have been answered.

However, problems may arise when the deposit agreement provides that the account can be redeemed only upon certain conditions. In Farmstart v. Dagenais the deposit agreement restricted the account holder from withdrawing the full amount except on 24 hours notice. The court held that the effect of the garnishee order was to demand payment.

Farmstart v. Dagenais (1983), 31 Sask. R. 81 (Q.B.).

(e) Joint Accounts: Joint accounts can be garnisheed if all holders are defendants or judgment debtors.

Otherwise, they cannot be garnisheed. Teachers’ Credit Union Ltd. v.Townsend (1986), 55 Sask. R. 37 (Sask. Q.B.); and Agricultural

Credit Corporation of Saskatchewan v. Bloye (1989), 76 Sask. R. 204 (Sask. Q.B.).

(f) Discretionary Crown Payments: For example, payments by the Saskatchewan Crop Insurance Corporation under the

Canada-Saskatchewan Crop Assistance Program are discretionary, the regulations stating “... the corporation may provide a payment”. Suit may not be maintained for these payments and they cannot be attached.

Schatz v. McClean, [1991] 5 W.W.R. 536 (Sask. Q.B.).

Thus, before issuing a summons, regard ought to be had as to whether the target asset is in fact a

“debt due or accruing due”.



V. PRE-JUDGMENT REMEDIES

Obtaining judgment, whether the action is based on a debt, tort or other claim often takes

considerable time, sometimes years.

Defendants, realizing a judgment against them is imminent, may attempt to make themselves

judgment proof. They may secret property, transfer assets, leave the jurisdiction or generally

make arrangements to render the impending judgment worthless.

The law sometimes affords anxious plaintiffs pre-judgment safeguards against the defendant’s

pre-emptive conduct, especially if the claim is based on a debt. Some of these safeguards, like

the Mareva injunction, are essentially creations of the court; others are creatures of statute.

A. THE ABSCONDING DEBTORS ACT

While there has notionally been injunctive relief available to secure indebtedness or damages, it

has not been employed until relatively recently. As a general rule, courts have refused to

interfere with a defendant’s property unless the plaintiff claimed some proprietary interest in it.

Canadian law has treated certain plaintiffs more sympathetically. Following American statutes,

absconding debtors acts began to appear in the Maritimes in the mid-eighteenth century.

Saskatchewan’s absconding debtor legislation dates to 1919. The legislation has not been

amended since then, testimony more to an abandonment of the legislation than to any level of

satisfaction.

As a general rule, the courts have restrictively interpreted absconding debtor legislation, showing

the same suspicions toward it as toward pre-judgment attachment of debts.

Supporting documentation must be impeccable. Minute and trivial errors have provided grounds

to refuse orders. For example, in Lukian v. Shankoff, the Court held that it could not infer that

the deponent was “well acquainted with the defendant” even though he was the defendant’s son.



Lukian v. Shankoff, [1945] 1 W.W.R. 345 (Sask. K.B.).

To employ the Act, the plaintiff must first commence an action for a debt over $50. An action

based on tort will not support an application, and accordingly, all of the issues discussed more

fully above ought to be considered.

The plaintiff must swear an affidavit stating how the debt arose, the amount of the debt and that,

without the benefit of attachment, the plaintiff will lose his debt or sustain damage.

Good reasons must be disclosed for believing that:

(a) the defendant is about to abscond or has absconded from Saskatchewan leaving personal property liable to seizure;

(b) the defendant has attempted to remove such personal property out of the province or to sell or dispose of it with intent to defraud creditors; or

(c) the defendant is concealing himself to avoid seizure.

A second affidavit must also be sworn by another “credible” person who is “well acquainted

with the defendant”. This affidavit must reiterate the statements in the plaintiff’s affidavit.

The application may be brought ex parte. The successful plaintiff must contend with judicial

dislike for ex parte applications and for pre-judgment remedies.

The courts have set rigorous requirements before an Order will be granted.

In Lukian v. Shankoff, the Court required the plaintiff’s affidavit to affirm that the property to be

seized was exempt from seizure, stating that the Court would not speculate whether a motor

vehicle was exempt from seizure. Further, the Court stated an intent to defraud would not be

inferred from the defendant’s intention to dispose of his property by auction sale or from a mere

refusal to pay.

In Fitzgerald v. Warner, the plaintiff’s affidavit fell because he did not allege that the

absconding debtor was leaving personal property “. . . liable to seizure under execution for debt”.



Fitzgerald v. Warner, [1912] 2 W.W.R. 299 (Sask. Dist. Ct.).

In Hole v. Simpson, the plaintiff stated that “the defendant is justly and truly indebted to me in

the sum of $21,913.60.” This was insufficient. There was nothing to show from what cause the

debt arose. The omission was fatal and could not be cured by supplemental material.

Hole v. Simpson, [1914] 6 W.W.R. 742 (Sask. T.D.).

If an order is granted, seized property must be held by the Sheriff until the plaintiff obtains judgment.

The absconding defendant who leaves no spouse or family in the province cannot claim benefits

of exemption legislation.

If the seized property is livestock or perishable goods, the Sheriff must have the goods appraised.

The plaintiff may deposit a bond with the Sheriff equal to twice the appraised value of the goods

together with all costs incurred by the seizure and sale of the goods if the plaintiff does not

obtain judgment. If a bond is not posted, the Sheriff must return the goods.

Absconding debtor applications are rare. The last time the Act was invoked was in 1991, in an

application involving a number of remedies. The Act was not mentioned substantively. The last

time a matter was decided under the Act appears to have been in 1983.

B. THE ATTACHMENT OF DEBTS ACT

1. History and Nature of Remedy

Not all provinces allow pre-judgment garnishment. New Brunswick, Nova Scotia and Ontario

limit garnishment to post-judgment creditors (unless the plaintiff can seek an analogous remedy

under absconding debtor legislation). In Alberta, plaintiffs must seek leave to issue a Garnishee

Summons.



Historically, the procedure has been the source of some judicial hostility. Judges have

traditionally shown a keen willingness to set aside pre-judgment Garnishee Summons for the

smallest of errors. The underlying rationale appeared to be

The plaintiff who succeeds in attaching monies has a great advantage. The time has arrived, surely, to abolish a procedure that permits a creditor to obtain security immediately for the payment of a claim he may never be able to sustain.

Campbell West Ltd. v. Wimpey (George) (1985), 37 Sask.R. 100 at 102 (Sask. Q.B.).

However, of late, this hostility appears to have been reigned in.

There has been a good deal of judicial criticism of s. 3 (see, e.g., Campbell West Ltd. v. Wimpey (George) Canada Limited et al, (1984), 37 Sask. R. 100 (Q.B.)), and whether we agree or disagree with the criticism is irrelevant. The important thing is that the legislature has, notwithstanding the judicial criticism, chosen to leave s. 3 intact and unchanged. The courts must respect that decision of the legislature.

Reed Ford Tractor Sales Ltd. v. Todorowich, [1994] S.J. No. 687 (C.A.).

Nevertheless, this is a remedy which ought to be used with care and attention to detail, as errors

will result in the intervention of the court.

2. The Supporting Documentation

Pre-judgment garnishment is available only if the plaintiff's action is for payment of a “debt or

liquidated demand”. That issue has been discussed in detail above.

The Statement of Claim must disclose a claim for a “debt or liquidated demand” with sufficient

detail to permit the court to review the document to determine whether the requirements of the

Act are met.

In some circumstances, the claim may cover more than one claim. So long as the garnishee and

supporting affidavit are restricted to the liquidated demand portion of the action, a pre-judgment

garnishee is available.


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Kent Chemical Distributors Inc. v. Kent Chemicals (1984) Ltd. (1987), 61 Sask. R. 300 (Sask. Q.B.).

In some cases, the plaintiff must plead alternative claims.

Failure to be precise in pleading and in drafting supporting material has caused problems with this.

McKinnon v. Kot (1985), 43 Sask. R. 78 (Sask. Q.B.); and Air Exchange (U.K.) Ltd. v. North

Can. Air Ltd. (1985), 42 Sask. R. 81 (Sask. Q.B.).

However, the courts appear to accept a differentiation of the alternative claims, now. In Royal

Bank of Canada v.Tarasoff the claim referred to the claimed money being subject to a trust in

favour of the plaintiff, and alternatively alleged conversion. The deponent carefully confined the

affidavit to the debt aspect of the claim, and the Court held that:

. . . where the primary claim is for a money judgment in an ascertained amount the action will usually be characterized as one for debt or liquidated demand regardless of any additional or alternative claims.

Royal Bank of Canada v. Tarasoff (1991), 84 Sask. R. 239 (Sask. Q.B.).

Once the claim is drafted, attention may be turned to the form of affidavit. (The statute expressly

permits the affidavit to be sworn before the claim is issued).

The supporting affidavit must show the nature and amount of the claim, swearing positively to

the indebtedness.

The affidavit must also state, on information and belief, that the proposed garnishee is indebted

to the defendant. Note that pre-judgment garnishees cannot attach wages unless, on ex parte

application, the court is satisfied that it would be “conclusive to the ends of justice to do so”.

The correct form of Garnishee Summons must be used. The Act prescribes two forms, a form for

pre-judgment garnishees and two for post-judgment garnishees -- one to attach debts and one to

attach wages or salary.


Saskatchewan: Bar Admission Program 21 Debtor Creditor – Unsecured Debt Recovery in Saskatchewan Affidavits must be impeccably prepared. Let us examine why in more detail. Opposing counsel will quickly find judicial sympathy to set aside pre-judgment proceedings,

particularly, where the affidavit is defective. Without canvassing all the potentially fatal flaws in affidavits, the following cases provide some

insights: Mumford Midland Limited v. Certified Concrete (Central) Limited (1967), 59 W.W.R.

378; Green v. Boulanger Construction Ltd., [1977] 6 W.W.R. 41 (Sask.Q.B.); McKeekin v.

Certified Control (Central) Ltd. (1967), 58 W.W.R. 381 (Sask. Q.B.); and Rhodes-Vaughan v.

Mini Mansion (1981), 11 Sask. R. 1983 (Sask. Q.B.). As with the Statement of Claim, the affidavit must particularize the claim adequately to permit the

court to evaluate its status. Care must be taken to ensure that all details are set out in both documents. In some cases, counsel will incorporate the allegations in the statement of claim by reference.

This is an acceptable procedure, provided that the deponent swears positively to the allegations. A-1 Tire/Wheel Co. Ltd. v. Pihach, [2001] S.J. No. 61 (Q.B.). However, the practice does have its drawbacks. Even if the common error of not swearing

positively to the allegations in the claim is avoided, one ought to be careful not to be over

inclusive and thereby swear to alternative claims or matters which will not support a pre-

judgment Garnishee Summons. Selecting the allegations by paragraph number may assist. Have regard, too, to the requirement that the deponent swear positively to the debt. Ensure that

your words are clear and unambiguous. Consider too, whether the deponent is the person best placed to swear the affidavit. Recently, in two cases, a Garnishee Summons was attacked on the basis that it, being sworn on the

basis of information and belief, failed to meet the requirement of swearing positively to the debt. Telecom Leasing Canada (TLC) Ltd. v. Gallagher, [1994] S.J. No. 475 (Q.B.); and Semchuk

Estate v. Semchuk, [2001] S.J. No. 732. (Q.B.).



In one case, the deponent was the credit manager of the plaintiff, and in the other, an executor of

the deceased creditor. In each case, the Court ruled that, provided that the person swearing the

affidavit was well placed to know as much as possible about the case, an affidavit based on

information and belief was acceptable.

Although the statute expressly permits the affidavit to be sworn by a solicitor, the Code of

Professional Conduct restricts a solicitor to deposing as to formal matters only, unless the

solicitor should engage other counsel for representation. It would seem likely that only a post-

judgment affidavit would meet the “formality” requirement, and a lawyer should not, therefore,

swear an affidavit in support of a pre-judgment summons.

In pre-judgment garnishment, plaintiffs must not only ensure their action is based on a “debt or

liquidated demand”, they must also ensure that there is a “debt due or accruing due” from the

garnishee to the defendant. This is often a matter of conjecture, but cases considering the issue

were discussed above.

The Garnishee Summons must be served on the garnishee and, within an additional 20 days, the

defendant must be served. Service rules of the Queen’s Bench Rules apply.

Estevan Credit Union Ltd. v. Page (1986), 54 Sask. R. 290 (Sask. Q.B.).

While an application may be made to extend the time for service, the court will look, in the pre-

judgment context, for a good and substantial reason for failure to serve within the required time.

3. Effect of Pre-judgment Garnishee

In the event funds are attached, they will be paid into court. They will remain there until after

judgment is entered.



Note that other interests can intervene. For example, if the defendant should assign in

bankruptcy before the funds are paid out and the cheque clears, then the funds are to be paid over

to the Trustee in Bankruptcy, and the debt becomes unsecured.

C. INJUNCTIVE RELIEF

1. History and Nature of Remedy

Except in exceptional situations, creditors historically had no common law right to obtain a pre-

judgment injunction preventing the debtor from dissipating assets or removing assets from the

jurisdiction.

The prevailing view was summarized by Chancellor Boyd:

The plaintiff may or may not get judgment in the case, but he proposes to restrain the sale or disposition of this stock by the defendant till that is finally determined.

There is no authority for such a course in an action of tort. If the plaintiff is a creditor before judgment, he can sue on behalf of himself and all creditors to attack a fraudulent transfer. If the plaintiff is a judgment creditor, he can proceed by execution to secure himself upon the debtor's property. But if the litigation is merely progressing and the status of creditor not established, it is not the course of the court to interfere quia timet and restrain the defendant from dealing with his property until the rights of the litigants are ascertained.

Burdett v. Fader (1903), 6 O.L.R. 532, affirmed 7 O.L.R. 72 (C.A.).

In 1975, however, the law was altered by Lord Denning’s decision in Mareva Campania Naviera

S. A. v. Int. Bulk Carriers S. A.

Mareva Campania Naviera S. A. v. Int. Bulk Carriers S. A., [1975] 2 Lloyd’s Rep. 509 (C.A.).

Lord Denning found authority to grant injunctive relief to a creditor before judgment in the

Supreme Court of Judicature Act, which provided that an injunction may be granted “in all cases

in which it shall appear to the court to be just or convenient”. Lord Denning went on to state:



In my opinion that principle applies to a creditor who has a right to be paid the debt owing to him, even before he has established his right by getting judgment for it. If it appears that the debt is due and owing, and there is a danger that the debtor may dispose of his assets so as to defeat it before judgment, the court has jurisdiction in a proper case to grant an interlocutory judgment so as to prevent him disposing of those assets.

Mareva Campania, supra.

Lord Denning described his decision as “the greatest piece of judicial law reform in my time”.

The Mareva injunction has found acceptance in Saskatchewan. General authority for the

application is found in s. 45(8) of the Queen’s Bench Act, R.S.S. 1978, c. Q-1 and Rule 390 of

the Queen’s Bench Rules of Saskatchewan.

2. Requisites for the Injunction

Given the potential for injury to the debtor’s business or trade, courts have generally granted

Mareva injunctions only in the clearest of cases. This may be particularly true in Canada, where

the harm of transferring assets to another Canadian province is limited by the availability of

extra-provincial registration of a judgment.

In Feigelman, the Supreme Court of Canada adopted a restrictive formulation for the Mareva

injunction:

The applicant must persuade the court by his material that the defendant is removing or there is a real risk that he is about to remove his assets from the jurisdiction to avoid the possibility of a judgment, or that the defendant is otherwise dissipating or disposing of his assets, in a manner clearly distinct from his usual or ordinary course of business or living, so as to render the possibility of future tracing of the assets remote, if not impossible in fact or in law.

Aetna Financial Services Ltd. v. Feigelman, [1985] 1 S.C.R. 2.

Guidelines for granting of a Mareva injunction are set out in the decision of Justice Baynton in

First Choice Capital:



1. The plaintiff should make full and frank disclosure of all matters in his knowledge which are material for the judge to know;

2. The plaintiff should give particulars of his claim against the defendant, stating the ground of his claim and the amount thereof, and fairly stating the points made against it by the defendant;

3. The plaintiff should give some grounds for believing that the defendant has assets within the “jurisdiction” as it has been defined in Aetna, infra, in the case of a federal state;

4. The plaintiff should give some grounds for believing that there is a risk of the assets being removed before the judgment or award is satisfied; [interpreted in several cases including Chitel v. Rothbart (1982), 141 D.L.R. (3d) 268 (Ont. C.A.) at p. 289, to include “dissipating or disposing of his assets, in a manner clearly distinct from his usual or ordinary course of business or living, so as to render the possibility of future tracing of the assets remote, if not impossible in fact or in law.”];

5. The plaintiff must give an undertaking in damages in case he fails in his claim or the injunction turns out to be unjustified.

First Choice Capital Fund Ltd. v. First Canadian Capital Corp., [1997] S.J. No. 390 (Q.B.).

Given the recent liberalization of rules respecting interjurisdictional judgment enforcement, the

removal of assets to another province is less likely to found a successful Mareva application.

3. Scope of the Injunction

The Mareva injunction is extraordinary relief and carries the potential for great loss to the

debtor’s business. Plaintiffs and defendants alike should be prepared to argue for, or accede to,

limitations to the scope of the injunction to reduce the risk of injury to the defendant.

For example, it may be desirable to limit the effect of the injunction to all of the defendant’s

property up to a certain dollar limit, thus permitting the defendant to continue dealing with assets

so long as sufficient assets remain within the jurisdiction to satisfy the potential judgment.

Consideration should also be given to an express provision in the order allowing the debtor to

apply for a variation or suspension of the injunction regarding any specific transaction essential

to the debtor’s business.


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VI. THE JUDGMENT

A judgment is a final determination of issues between the parties to litigation. The judgment

may arise from a debt, a tort claim or breach of contract. It may be a default judgment, summary

judgment or a judgment for costs.

As can be seen then, a single court proceeding may result in a number of judgments. There may

be an original judgment, and a bill of costs from costs taxed subsequently. Two judgments arise.

In other cases, a separate judgment for costs may arise from an appeal where costs are awarded.

The Bill of Costs from the Court of Appeal can be filed with the Queen’s Bench and enforced as

a judgment.

Judgments commonly arise in the Court of Queen’s Bench. A judgment in Small Claims Court

can only be enforced through the Court of Queen’s Bench. Various administrative tribunals can

also award damages and issue a Certificate which can be filed in the Court of Queen’s Bench and

become a judgment of that court.

Judgments afford judgment creditors a full range of post-judgment enforcement remedies. The

judgment debtor, however, can delay these remedies by three devices:

(a) the judgment may be ordered paid by instalment so that, as long as there are no arrears of instalments, the creditor cannot pursue other post-judgment remedies;

(b) execution of the judgment may be stayed pending appeal or on some other grounds; and

(c) the provisions of the Bankruptcy Act may intervene to prevent enforcement.

Each of these devices will be briefly discussed.

A. INSTALMENT PAYMENTS

The Queen’s Bench Act, 1998 allows for instalment payments on judgment debts. Section 81

allows the court to order payment “at any times and in any amounts as the judge considers

appropriate”.


Saskatchewan: Bar Admission Program 27 Debtor Creditor – Unsecured Debt Recovery in Saskatchewan Instalment orders are rare. Impecunious debtors are probably ignorant of these provisions. Creditors dislike judgments payable on instalments, as they cannot invoke ordinary judgment

enforcement remedies if the debtor has not missed any instalments. Even if an instalment has been missed, some old case law suggests that a judgment payable on

instalments entirely extinguishes the old debt and substitutes a new contact, thus prohibiting a

reversion to the judgment unless the judgment contained a default clause. Ex parte London and County Discount Co. Ltd. (1909), 100 L.T. 380. However, the better view is that the express provisions of s. 86 of the Queen’s Bench Act, 1998

oust this old case law. Creditors also resist instalments judgments because s. 30 of the Executions Act provides that

judgment debts bear interest at five percent per year. This gives debtor’s lower rate financing if

payments are on instalment. Creditors are forced to become lenders at a rate of interest

favourable to the judgment debtor. Instalment judgments are disliked for another reason. Under the Creditor’s Relief Act, all

judgment debtors share the proceeds of seized property on a pro rata basis. Non-instalment

judgment creditors will enjoy an advantage over the instalment judgment creditor if the Sheriff

has seized and sold goods. If the instalments have been paid, the instalment judgment creditor

probably has no right to share in the proceeds of the sale. Many of the objections can be overcome if the counsel for the judgment creditor is proactive and

puts appropriate wording before the court, providing for default in the event of other seizures

taking place permitting execution in appropriate circumstances. If bringing application for such an order, you will have to demonstrate to the court that all

exigible assets have been exhausted, and will have to build an evidentiary case for the payment

plan proposed.


28 Saskatchewan: Bar Admission Program Debtor Creditor – Unsecured Debt Recovery in Saskatchewan B. STAY OF EXECUTION

Normally, an appeal will stay enforcement of a judgment. If the appealed judgment awards mandamus, an injunction or maintenance, execution is not

stayed upon filing an appeal unless otherwise ordered by the judge appealed from or by a judge

of the Court of Appeal. In all other cases, upon filing an appeal, execution of the judgment is

stayed unless otherwise ordered by a Court of Appeal judge.

C. BANKRUPTCY AND CONSOLIDATION ORDERS

A judgment can quickly loss its lustre if the debtor makes an assignment in bankruptcy or is

petitioned into bankruptcy by other creditors. The debtor may also make a proposal to creditors

under the Bankruptcy and Insolvency Act. In these circumstances, the judgment creditor’s

remedies are stayed. The Bankruptcy and Insolvency Act offers further staying provisions. Though rarely used, in Part X of the Act which governs the orderly payment of debts, a debtor

may apply for a consolidation order where the judgment is for $1,000 or less. There is a

procedure set out in Part X for objections and for the payment of consolidations orders. If the judgment debtor has not used one of the three devices, the judgment creditor can take steps

to enforce the judgment. A judgment itself, without further proceedings, cannot be enforced.

The court, having issued the judgment, goes no further.

VII. EXAMINATION IN AID OF EXECUTION

A. THE NEED FOR INFORMATION

Successful judgment enforcement begins with obtaining information about the judgment debtor. Aside

from legal proceedings, the judgment creditor can obtain information from various sources. The

judgment creditor often has detailed information about the judgment debtor’s business and affairs.



Public registries can disclose invaluable information. Saskatchewan Government Insurance

searches disclose vehicle registrations; corporation registry searches disclose shareholder

interests; personal property registries may disclose financial institutions who deal with the

judgment debtor; municipal tax rolls disclose the extent of real property holdings.

In view of the recent proclamation of the Personal Information Protection and Electronic

Documents Act (Canada), some of these sources of information may prove more difficult to

access. As well, when gathering information for the purposes of judgment enforcement, a

solicitor should be sure to comply with this and any other similar legislation.

B. EXAMINATION IN AID OF EXECUTION

“Discovery in Aid of Execution” is a procedure which allows a judgment creditor to examine a

judgment debtor under oath to obtain information to be used in judgment enforcement

proceedings.

The procedures to follow are set out in Queen’s Bench Rules 383 to 386.

Rule 383 allows a judgment creditor, without order, to examine the judgment debtor under oath

for information concerning the reason for non-payment, his means and assets, and question any

disposition of such assets either before or after the date of judgment.

Phaneuf Fertilizer Sales Ltd. v. LeBlanc, 63 Sask. R. 285; General Broadcasting Ltd. v. Jim

Long Companies Inc., [1987] 2 W.W.R. 353; and Citation Industries Ltd. v. Muxlow

Development Corp. 46 Sask. R. 143 (Sask. Q.B.).

Rule 383(2) requires the judgment creditor to issue an Appointment to schedule an Examination

in Aid of Execution. It must be served on the judgment debtor, together with the necessary

conduct money.



Although not specifically required, a subpoena should be served on the judgment debtor, particularly

when a judgment creditor wants to compel the judgment debtor to produce documents.

Great West Life Assurance Co. v. Wright, [1928] 2 W.W.R. 94 (C.A.); and Saskatchewan

Hardware Co. v. McManus, [1924] 2 W.W.R. 809 (C.A.).

Under Rule 383(3) an ex parte application can be made to the court, ordering any employee or

former employee and any officer or employee of a corporation to attend an Examination in Aid

of Execution. An Appointment, conduct money and subpoena will also be required to be served

on such person.

Pursuant to Rule 383(4), once notice is provided to the judgment debtor, the judgment creditor

may make an application to the court to examine any person to whom any property, which ought

to have been applied towards payment of the judgment, has been transferred or assigned.

Jim Long Companies Inc. v. General Broadcasting Ltd. (1986), 5 W.W.R. 516; and General

Broadcasting Ltd. v. Jim Long Companies Inc., [1987] 2 W.W.R. 353.

The same principles apply to an Examination in Aid of Execution as to an Examination for

Discovery before trial. Persons being examined are bound to seek information from agents and

servants under their control.

Parties examined are under an obligation to examine documents in their power or control and

divulge information concerning the documents during examination.

Where the court decides that persons being examined have not discharged the duty imposed on

them, an order may be sought that they re-attend examination and make sufficient answer to the

questions not answered, or in the alternative, be committed for contempt.

Badger v. Torosoff, [1919] 1 W.W.R. 919 (Sask. Q.B.); and Elfenbaum v. Elfenbaum (1987), 37

Sask. R. 288 (C.A.).



No specific rule limits the number of Examinations in Aid of Execution which may be

conducted. However, multiple examinations without sufficient reasons may be held to be an

abuse of process.

The person in charge of the Examination in Aid of Execution has broad latitude in conducting

the Examination. Cross-examination techniques can be used and questions can be wide ranging.

The individual conducting the examination should not be interfered with unless the examination

is improper or based on wrong principles.

Rodgers Lumber & Supply Co. v. Johnson Homes Ltd. (1964), 50 W.W.R. 579 (Sask. Q.B.).

Careful preparation should precede the examination. An examination checklist may be found in

The Law Society of Saskatchewan Practice Checklists.

VIII. ENFORCEMENT AFTER JUDGMENT

Unless the judgment debtor voluntarily pays the judgment, a judgment creditor will have to

execute against the debtor’s property or garnishee payments from third parties. Execution

against property involves the Sheriff’s office.

Garnishment proceedings can be taken without obtaining a Writ of Execution and do not require

assistance of the Sheriff’s office.

A. THE WRIT OF EXECUTION

1. History of the Writ

A “writ” is simply a command to someone to do something. “Execution” refers to a mode of

judgment enforcement. The “Writ of Execution” is based on the old English writ of fieri facias.

It commanded the Sheriff to seize the debtor’s goods. At common law, real property was not



subject to writs of fieri facias. Nor was intangible personal property. Modifications in English

and Saskatchewan law now allow Writs of Execution to bind tangible and intangible personal

property as well as land.

Writs of Execution are directed to the Sheriff. The office of the Sheriff traces its origins to pre-

Norman England when the Sheriff was the personal agent and official of the King. The word

“Sheriff” comes from “shire” and “reeve”. Until the reign of John (1199 - 1216), the Sheriff’s

duties and powers were significant.

The Sheriff’s duties were broader than executing the orders of the King or the King’s Court. He

also had powers to preside over the Shire Court in the absence of the Earl, to arrest citizens and

collect fines and taxes. He provided for the King’s safety, exacted all services due to the Crown,

distributed alms, paid wages of servants attached to the castle and enforced the regulations of

trade, currency and weights and measures.

Sheriffs were gradually stripped of power. Common people found the Sheriff’s office

oppressive; nobles mistrusted and were envious of his great powers. The emergence of itinerant

judges, the office of the coroner and justices of the peace helped to emasculate the Sheriff’s

powers. Most significant was the 14th century statute that prohibited a Sheriff’s term in office

any longer than one year. Among the various duties still performed by Sheriffs is enforcement

of judgments by way of Writs of Execution.

2. Nature of the Writ

A Writ of Execution is a document commanding the Sheriff to seize and sell property of a

judgment debtor to satisfy the judgment and attendant costs. Writs are governed largely by the

Executions Act, the Land Titles Act, 2000 (s. 180 to s. 188), and the Rules of Court.

The term Writ of Execution incorporates several older forms of Writ including:

(a) Writ of fieri facias (Rules 352 and 353) - used against goods or goods and lands to enforce a judgment for the payment of money.



(b) Writ of Delivery (Rule 370) - used to enforce a judgment for the recovery of property other than land or money.

(c) Writ of Possession (Rule 371) - used to enforce a judgment for the recovery of possession of land.

(d) Writ of Sequestration (Rules 367 and Rules 375 to 377) - an equitable writ used where a party against whom judgment has been entered is in contempt for disobedience of a Court Order.

(e) Writ of Extent (Rule 353) - used to secure and enforce revenues of the Crown.

3. Obtaining and Registering a Writ

A writ must be preceded by a valid, unsatisfied judgment.

Bigford v. Squirrell (1921), 60 DLR 363 (Sask C.A.).

By Rule 357, a Writ of Execution shall be issued upon the judgment creditor filing a præcipe in

Form 37 of the Queen’s Bench Rules. This præcipe, and a writ in Form 38, 39 or 40 as

appropriate, should be delivered to the Queen’s Bench Registrar at the judicial centre which

granted judgment. On the strength of the præcipe the Registrar will issue the writ and return it to

the judgment creditor.

Registrars maintain discretion to satisfy themselves that the amount stated in the judgment

remains due and owing, and they may require an affidavit.

R. v. Uhrich (unreported Sask C.A., April 6, 1977).

Every writ shall bear the date of its issue and the date of the judgment or order upon which it is

grounded: Rule 358.

The name of the debtor(s) must not contain initials since s. 10 of the Land Titles Regulations,

2001 prohibits registration unless a statutory declaration states that the initials do not represent a

name. This requirement should be considered when pleading.



A writ is effective for ten years from the date of judgment or order. It can be renewed with no

loss of priority once judgment is renewed: the Executions Act, s. 36. A writ can be rendered

unenforceable only by the passage of time, if stayed by an order of the court (Rule 352) or by the

debtor declaring, or being petitioned into, bankruptcy.

Rules 352 and 359 provide that one or more writs may be directed to the Sheriff on the same

judgment. For example, a separate writ may be obtained for costs. This is especially beneficial

where judgment is granted but the issue of costs is reserved for a later date and the judgment

creditor wishes to proceed immediately with execution.

Upon receipt of the issued writ, the creditor should send it to the Sheriff with instructions to

register it in the Sheriff’s office.

It is the responsibility of the creditor to register the judgment in the Saskatchewan Writ Registry,

by way of a financing statement.

As well, if desired, the creditor should request that the Sheriff act on the writ. Such a request

may include instructions to send a demand letter to the debtor, locate and seize any exigible

property and seize specific property.

The Sheriff will require the creditor to guarantee costs of any enforcement activity. Copies of

searches from the Personal Property Registry and Saskatchewan Government Insurance are

helpful to the Sheriff, along with any other information the creditor may possess.

Section 34 of the Executions Act allows the Sheriff with whom the writ is originally registered to

transmit a certified copy to any other Sheriff upon request. Alternatively, s. 34 also allows the

Sheriff to elect to transfer the writ if he deems it more appropriate, though with notice to the

creditor. One of these methods should be used if the debtor has exigible property in various

judicial districts, so the Sheriff will have power to seize the property.



4. Effect on Personal Property

From the time of delivery to the Sheriff, a writ binds all goods of the judgment debtor in the

province.

The Executions Act, s. 2.2; and Leier v. Shumiatcher (1962), 32 DLR (2nd) 584 (Sask C.A.).

This gives the Sheriff the right to levy on the debtor’s goods to the exclusion of all other persons,

and the right to follow those goods if they are transferred to another person. Under the authority

of the writ, the Sheriff may also seize, in addition to tangible goods, money, cheques and bank

accounts.

The Sheriff has the power to seize choses in action -- debts due to execution debtors: the

Executions Act, s. 5(2).

The Sheriff may also seize transferable shares in a corporation by seizing the certificates and, within

five days, serving a copy of the Writ of Execution on the company: the Executions Act, s. 17. Any

subsequent transfer of the company’s shares by the judgment debtor is invalid.

The Sheriff may only seize assets not exempt from seizure. Exemptions are specified in the

Exemptions Act and the Saskatchewan Farm Security Act.

A writ registered in the Writ Registry (and therefore the Personal Property Registry) takes

priority over all unregistered security interests.

However, it does not take priority over:

(a) a bona fide purchaser who has no notice of the writ if the purchaser takes immediate and continued possession of the goods;

(b) a secured party who has taken possession of the goods before the writ is registered at the Personal Property Security Registry; and

(c) a secured party who has taken a purchase money security interest in the goods that is perfected before, or within 15 days after, the debtor obtains possession.



5. Effect on Real Property

If a judgment creditor registers a writ in the Saskatchewan Writ Registry, it binds future

interests in land acquired by the judgment debtor: The Executions Act, s. 26(2). Note, however,

that the manner in which the Land Registry works means that only an exact name match will

attach on acquisition. The writ will also bind any interest to which it is specifically attached: the Executions Act, s. 26(4). The writ binds a joint tenancy until it is terminated, though the writ does not sever the joint

tenancy. The writ also binds exempt lands, though the Sheriff cannot sell these lands. However, it is well settled that an unregistered equitable mortgage given prior to the registration

of a writ will have priority. St. Mary’s Parish Credit Union Ltd. v. T. M. Ball Lumber Co. Ltd., [1961] S.C.R. 310. Generally, though, subsequent registrations will be subject to the writ.

6. Seizure and Sale of Personal Property

The Sheriff may, under a writ, seize and sell the interest or equity of redemption in personal

property, as well as interest under a lease of land: the Executions Act, s. 3. Given instructions,

the Sheriff will conduct an investigation into the debtor’s assets. Once the Sheriff seizes

property, it is common to leave it in the debtor's possession pending where the debtor provides a

bond: the Executions Act, s. 4. The property is then returnable to the Sheriff on demand. Once the property is seized it may be sold. When selling property other than grain or

perishables, the Sheriff must advertise the sale by public notice for a minimum of ten days prior

to the sale: the Executions Act, s. 18. The Sheriff holds sale proceeds for two months as dictated by the Creditors’ Relief Act. They

are then distributed under the scheme established by that Act.


Saskatchewan: Bar Admission Program 37 Debtor Creditor – Unsecured Debt Recovery in Saskatchewan 7. Sale of Real Property

Due to its expense and the uncertainties involved, sale of land under a writ is an uncommon

remedy. The Sheriff can only sell land under a writ after one year from the date the first writ

was delivered to that Sheriff’s Office: the Executions Act, s. 22(3). The Sheriff must provide a return of nulla bona at any time prior to the sale, stating there are no

goods in his jurisdiction liable to seizure: the Executions Act, s. 25. The creditor must apply to the Court for leave to conduct the sale: the Executions Act, s. 23(1). Subject to listed exceptions, s. 23 of that Act renders s. 3 and s. 4 of the Land Contracts (Actions)

Act applicable. If the land is farm land, leave under the Saskatchewan Farm Security Act must

be obtained. Section 24 of the Executions Act stipulates notice requirements. Specifically, 30 days notice by

registered mail must be given to the execution debtor and any other registered owner as well as

to any other persons on record at the Land Registry Office as having an encumbrance subsequent

to the writ. Notice must also be posted in a conspicuous place in the Court House in the

applicable Judicial District for at least 45 days before the sale. Finally, notice must be given

once a week for four weeks consecutively in the local paper. The last notice must be published

not more than ten days prior to the sale. Practically, a sale date two to two and one-half months after instructions for sale are given to the

Sheriff is typical. The Sheriff normally requires deposits to cover disbursements. A sale is conducted through individual bids. A full record of the proceedings is kept by the

Sheriff. Where no bids or only insufficient bids are received, the Sheriff will adjourn the sale

and post a new date and time following the above procedure. If the sale succeeds, a deposit as

outlined in the sale notice is taken and the sale is closed. No sale of land by the Sheriff shall have any effect until it is confirmed by the Court: the Land

Titles Act 2000, s. 160.


38 Saskatchewan: Bar Admission Program Debtor Creditor – Unsecured Debt Recovery in Saskatchewan By Rule 374, the party who instructed the sale is obligated to apply for the confirmation order,

although the court may order that another interested party be permitted to make the application.

Notice is given to the debtor, and all subsequent interested parties. If the sale is confirmed, costs

are taken from the proceeds of sale; if it is not confirmed, the purchase money goes back to the

purchaser and the judge makes an appropriate order regarding costs. In order to obtain

confirmation, there must be strict compliance with the requirements for the sale of land under

execution. The onus is on the party applying to prove that these requirements have been met. Re: Price (1912), 4 DLR 407 (Sask. S.C.). Where the land is sold, ICS (Information Services Corporation), on production of an

authorization with proof of its execution, and with an order confirming the sale, will register the

transfer. The existing Certificate of Title will be cancelled and a new Certificate of Title issued.

8. Discharge of Writ

A writ can only be withdrawn or discharged by the total payment of the obligation or through

instructions to the Sheriff by the judgment creditor. These instructions are normally done

simply by a letter. Where the judgment is satisfied, the Registrar should also be sent a Consent to Entry of

Memorandum in Satisfaction of Judgment, so that the court file may show satisfaction of the

judgment.

B. POST-JUDGMENT GARNISHMENT

Upon obtaining judgment, the judgment creditor has available further powers to garnishee. Most

notable is the ability to garnishee the federal Crown and wages and salaries due to the debtor.



1. Garnishment of the Crown

The provincial Crown can be garnisheed both before and after judgment unless the garnishment

involves wages or salary.

The Attachment of Debts Act specifies a two step procedure for garnishment of wages. A Notice

of Intention to issue a Garnishee Summons must be served 30 days prior to the issuance of the

Garnishee Summons. The notice must include:

(a) the name of the defendant or judgment debtor;

(b) the amount of the judgment or the nature and amount of the debt demanded as owing; and

(c) (if employed by the Government of Saskatchewan), the branch of the public service in which he is employed.

The Garnishee Summons must be served on the garnishee on or before the last day of the month

next following the month in which the notice is served.

A notice served July 4, for example, would require service of the Garnishee Summons before

August 31 of that year. Section 6(3) of the Attachment of Debts Act specifies a rather long list of

persons who must be served when garnishing wages and salaries. Careful reference should be

made to that provision.

Section 7 of the Attachment of Debts Act provides for garnishment of monies (other than wages

or salaries) owing by Crown Corporations, the Liquor Board, the Liquor Licensing Commission

and the Saskatchewan Medical Care Insurance Commission. Although s. 7(2) refers to service of

the “garnishee process”, it is doubtful that any documents other than a Garnishee Summons need

be served upon the persons named.

Garnishment of the federal Crown is allowed by the Garnishment, Attachment and Pension Diversion

Act, R.S.C. 1985 c. G-2. No garnishment lies unless judgment has been obtained: s. 8.

The Garnishment, Attachment and Pension Diversion Act allows salary and remuneration, such

as fees and honoraria, to be attached: s. 5.


40 Saskatchewan: Bar Admission Program Debtor Creditor – Unsecured Debt Recovery in Saskatchewan Salary includes pay to Senators and Members of Parliament and salary to judges to whom the

Judges Act applies and, in the case of any other person, both the basic salary and any amounts

payable as allowances or special remuneration. Procedures for affecting the garnishee process are specified by the Garnishment, Attachment and

Pension Diversion Act, Regulations, and Forms included in the Regulations. Part II of the Act provides that certain pension benefits may be attached pursuant to a “financial

support order” -- an order or judgment for maintenance, alimony or support. The Act does not

apply to all federal pensions, for example, Veteran’s Pension, Canada Pension Plan benefits or

Old Age Security.

2. Wages and Salaries

Generally, garnishment of wages or salaries will lie only for the post-judgment creditor: the

Attachment of Debts Act, s. 9. Section 5(1) of the Attachment of Debts Act states that the Garnishee Summons binds all wages and

salary that becomes due or payable at any time within five days after service of the summons. Case law has recently settled that a summons must be served on, or within five days prior to

payday, in order to catch salary and wages. Failure to do so will result in no funds being

required to be paid into court.

3. Default by Garnishee

Section 18 of the Attachment of Debts Act exacts a toll from a garnishee who fails to reply to a

Garnishee Summons within the mandatory 20 days. A judgment may be entered against the garnishee, but only upon obtaining judgment against the

defendant. In post-judgment garnishment, of course, entry of judgment against the garnishee can

occur immediately.



Numerous cases in Saskatchewan have dealt with the non-replying or late replying garnishee.

Shierman v. Harris (1915), 8 Sask. L. R. 165, 8 W.W.R. 514; Pearson v. Pearson (1967), 59

W.W.R. 365 (Sask. Q.B.); Prince Albert Credit Union Limited v. Mount Joy (1984), 48 C.B.R.

(N.S.) 24; and Kroma Kolor Photo Labs v. Snyder Q.B. 1368, J.C. of Regina, (unreported),

November 9, 1991.

4. Payment Out of Court

After judgment has been obtained and after 10 days’ service on both the defendant and

garnishee, the plaintiff may apply for payment of the garnisheed money out of court, unless the

defendant has consented to earlier payment out. Where wages or salaries are involved, the time

frame is 60 days.

In determining whether to seek payout each time this time frame passes or to wait and bring

application for several payments into court, regard will have to be had to the cost of so doing

(and sometimes judges will suggest less frequent applications), as opposed to the risk that the

judgment debtor will assign in bankruptcy and deprive the creditor of recourse to the funds in

court.

IX. EXEMPTIONS

As an underlying principle of exemptions legislation, a debtor and his family are not to be

deprived of an ability to earn a living.

The Exemptions Act and the Saskatchewan Farm Security Act each list exemptions of property

for non-farmer and farmer debtors respectively. A variety of miscellaneous exemptions appear

in certain other pieces of legislation.


42 Saskatchewan: Bar Admission Program Debtor Creditor – Unsecured Debt Recovery in Saskatchewan A. GENERAL RULES FOR EXEMPTIONS

The debtor has the onus of proving that particular assets are exempt from seizure. CSP Foods (1985), 38 Sask. R. 224 (Sask. Q.B.); and Agricultural Credit Corp. of Saskatchewan v.

Pettyjohn (1991), 90 Sask. R. 206 (Sask. C.A.). It appears that corporations are not entitled to the exemptions. In Saskatchewan, a corporation

cannot be engaged in the practice of a “business, trade, calling or profession” within the meaning

of exemptions legislation. Hayos v. Patrick and Wonitowy (1961), 36 W.W.R. 562 (Sask. C.A.). This has been extended in

Alberta to mean that exemptions have no application to corporations: Western Foundation

Borings v. Walters Construction (1966), 57 W.W.R. 178. In certain situations, exemptions do not apply. Except in the case of food, clothing and bedding

of the debtor and his family, articles which form the subject matter of the judgment on which the

execution is issued are not exempt from seizure. Exemptions do not apply to Writs of Execution issued on a maintenance order. Lofts v. Lofts (1990), 89 Sask. R. 120 (Q.B.). Exemptions do not apply where the debtor has absconded or is about to abscond from the

jurisdiction, nor do they apply to executions issued on judgments or orders founded on

separation agreements. The Crown is bound by the exemption provisions in the Saskatchewan Farm Security Act

pursuant to s. 104 of that Act. The federal Crown has adopted the Exemptions Act under s. 56(3) of the Federal Court Act. No

specific statutory provision binds the provincial Crown to the Exemptions Act. As a general rule

of interpretation the Crown is not bound unless specifically so stated.



Accordingly, conflicting case law exists whether the provincial Crown is bound by the

Exemptions Act.

Norfolk Trust Co. v. Hardy, [1984] 5 W.W.R. 86 (Sask. Q.B.); Wilkenson v. Agricultural Credit

Corp. of Saskatchewan, [1987] 4 W.W.R. 713 (Sask. Q.B.); and Wanhella v. Agricultural Credit

Corp. of Saskatchewan (1988), 68 Sask. R. 146 (Sask. Q.B.).

The debtor’s right to an exemption will depend on the circumstances. Changing circumstances

may permit a reconsideration of an application where an exemption was previously allowed.

Saskatchewan Valley Credit Union Ltd. v. Kozak (1990), 85 Sask. R. 241 (Sask. C.A.).

However, where an exemption is denied and the appeal dismissed, the right of the creditor to

dispose of the items seized has been crystallized. No further application may be made by the

debtor for exempt status due to changed circumstances after that point.

Mackesey v. Farm Credit Corp. (1990), 86 Sask. R. 234 (Sask. C.A.).

B. THE EXEMPTIONS ACT

The Exemptions Act does not apply to farmers: (s. 1.2).

Section 2(1) of the Exemptions Act lists the exemptions, which may be summarized as follows:

(a) Necessary and ordinary clothing.

(b) Furniture and appliances to the extent of $4,500.

(c) Grain, flour, vegetables and meat sufficient when converted into cash to provide food and fuel until next harvest.

(d) One motor vehicle necessary for the proper and efficient conduct of the debtor’s business, trade, calling or profession.

(e) Books of a professional man.

(f) Tools, implements, office furniture and equipment, to the extent of $4,500, used by the debtor in his business, trade, calling or profession.



(g) Homestead of not more than 160 acres.

(h) House and buildings occupied by debtor and lot(s) on which they are situated to the extent of $32,000.

(i) Trailer or portable shack occupied by debtor as living quarters but not in addition to house and buildings.

Probably the most litigated exemption relates to the motor vehicle necessary for the debtor’s

business, trade, calling or profession. In Cook v. Avco Financial a salesman’s car was held to be

exempt since it was used extensively for company business and was a condition of his

employment.

Cook v. Avco Financial (1976), 6 W.W.R. 756 (Sask. D.C.).

Contrast this with Canadian Acceptance Corporation v. Laviolette, where a truck used by a

labourer to travel to and from work was not exempt.

Canadian Acceptance Corporation v. Laviolette (1981), 11 Sask. R. 121 (Sask. Q.B.).

A number of other cases touch on this point.

Langdon v. Traders Finance 55 D.L.R. (2d) 12 (Ont. C.A.); Gottschalk v. Bank of Nova Scotia

(1982), Sask. D. 3864-01; Wildman and Wildman (1987), 65 Sask. R. 107 (Q.B.); Re: Davey

(1984), 32 Sask. R. 284 (Q.B.); Government of Canada v. Smith (1983), 29 Sask. R. 30 (Q.B.);

and Royal Bank of Canada v. Lees (Sask. Q.B. 4359 of 1991, J.C. Saskatoon - unreported).

The debtor’s house and buildings, to the extent of $32,000, are also exempt.

In Tripp v. Gray, the Court suggests that if the husband and wife own the property jointly, each

of them is entitled to the exemption for a total of $64,000.

Tripp v. Gray, [1978] 4 W.W.R. 543 (Sask. D.C.).


Saskatchewan: Bar Admission Program 45 Debtor Creditor – Unsecured Debt Recovery in Saskatchewan In addition, the cash limitation is meaningless as long as the debtor remains in the property. Re: Touche Ross Ltd. v. Neuls (1985), 17 D.L.R. (4th) 554 (Sask. C.A.). A home is exempt from seizure and sale under a Writ of Execution as long as the debtor occupies

it. If the debtor abandons the home, then it may be seized and sold under a Writ of Execution. Sask. Elevator Co. v. Erand (1923), 3 W.W.R. 1258 (Sask. C.A.).

C. THE SASKATCHEWAN FARM SECURITY ACT

Exemptions are also found in s. 66 of the Saskatchewan Farm Security Act. The exemptions for farmers are largely the same as those for non-farmers with a few notable

exceptions. The monetary exemption for furniture and appliances is increased from $4,500 to

$10,000 in the Saskatchewan Farm Security Act, probably more of an indication that the

Exemptions Act should be realigned with today’s prices rather than any preferential treatment for

farmers. Confusion has arisen under s. 66(d) and s. 66(e) of the Saskatchewan Farm Security Act.

Arguably, each contemplate an exemption for one motor vehicle. For a time there was some suggestion that conclusive jurisprudence established that there was

only one vehicle to be held exempt under this provision. Contrary cases have now been decided.

It would appear that each situation turns on its own facts. Another important exemption is afforded for livestock, farm machinery and equipment

reasonably necessary for the proper and efficient conduct of the farmer’s agricultural operations

for the next twelve months. It has been held that a farmer does not have a twelve month time limitation on exemptions. The

reference to twelve months relates to the type of equipment a farmer may normally use in an

agricultural year. The exemption will depend on the farm operations.



Any livestock, farm machinery and equipment required for the next twelve month period will be

indefinitely exempt from execution.

Royal Bank of Canada v. Christianson (1988), 68 Sask. R. 36 (Q.B.).

If a debtor gives up farming entirely, a creditor does not have to wait twelve months before

seizing otherwise exempt property.

Section 69 of the Saskatchewan Farm Security Act allows a farmer or an execution creditor to

apply to the nearest judicial centre to where the farmer resides to determine the right of a farmer

to have any chattels declared exempt from seizure and sale under a writ of execution. No

equivalent provision exists in the Exemptions Act.

The Saskatchewan Farm Security Act also exempts the homestead from seizure and sale under a

Writ of Execution. A homestead is defined in the Act in s. 2(1)(h) as:

(i) the house and buildings occupied by a farmer as his bona fide farm residence; and

(ii) the farmland on which the house and buildings mentioned in subclause (i) are situated not exceeding one hundred and sixty acres or one quarter section, whichever is greater.

What constitutes a homestead has been the subject of much litigation. In Bank of Nova Scotia v.

Blair the Queen’s Bench set out some minimum requirements for a homestead:

The land must contain a functional dwelling and be part of a farming operation as opposed to simply a dwelling in isolation. Actual occupancy of and living within the dwelling by the claimant for a period of time must have occurred. At all relevant times the claimant must have intended to retain and use the premises as a dwelling, although this does not preclude temporary absences, even of lengthy duration. As always, the matter of intent will be ascertained by reference to all of the facts.

Bank of Nova Scotia v. Blair (1989), 75 Sask. R. 289 (Q.B.).

In Farm Credit Corporation v. Strelioff a farmer lived in a house on farmland with his family for

four months. As winter approached, they moved into town as the house was not winterized. Six

years elapsed during which the family never lived there again, although the farmer stayed

overnight on a few occasions. The Court of Appeal held that this was a homestead.



Farm Credit Corporation v. Strelioff, [1990] 6 W.W.R. 742 (Sask. C.A.).

In Naicam Credit Union Limited v. Prefontaine a debtor moved a structure consisting of a

wooden floor with canvass walls and a roof onto a quarter section of land more than a year after

foreclosure proceedings had been commenced. Forty acres of the land were farmed by a

neighbour. The debtor had no other connection to farming. The Court held that this did not

constitute a “bona fide” farm residence.

Naicam Credit Union Limited v. Prefontaine (1990), 84 Sask. R. 127 (Q.B.).

The one hundred and sixty acres comprising the homestead do not need to be one quarter section

or even contiguous parcels

Bank of Montreal v. Macala (1987), 53 Sask. R. 31 (Sask. Q.B.).

However, the designation as to what constitutes a homestead must be reasonable and not simply

the most beneficial designation for the farmer.

Wildfong v. Royal Bank of Canada (1989), 78 Sask. R. 250 (Sask. Q.B.); Royal Bank of Canada

v. Gusaas (1990), 88 Sask. R. 139 (Sask. Q.B.); and Watson Credit Union Limited v. Pastl

(1991), 94 Sask. R. 74 (Sask. Q.B.).

D. MISCELLANEOUS EXEMPTIONS

Monies payable under an employer/employee pension plan are exempt from execution and

seizure pursuant to s. 19 of the Pension Benefits Act.

However, s. 19 of the Pension Benefits Act does not apply to a Writ of Execution issued with

respect to an order or interspousal contract made under the Family Property Act.



Section 158(2) of the Saskatchewan Insurance Act provides as follows:

While a designation in favour of a spouse, child, grandchild or parent or a person whose life is insured, or any of them, is in effect, the rights and interests of the insured in the insurance money and in the contract are exempt from execution or seizure.

This section exempts the cash surrender value of a life insurance policy if there is a designated irrevocable beneficiary who is related to the debtor as required by the section. It also exempts life insurance company registered retirement savings plans. However, there may be some limitations on this exemption.

Re: Klassen (1991), 90 Sask. R. 29 (Sask. Q.B.).

Monies received for pain and suffering are generally exempt from execution. This is specifically

recognized for motor vehicle liability policies in s. 210(3) of the Saskatchewan Insurance Act

which states that creditors of the insured are not entitled to share in the insurance money unless

the claim is one for which indemnity is provided for by the insurance contract.

Most recently, in 2003, Registered Retirement Savings Plans and similar plans were rendered

exempt by proclamation of the Registered Plan (Retirement Income) Exemption Act.

This may not be an exhaustive list but it shows that certain exemptions exist outside of the

Exemptions Act and the Saskatchewan Farm Security Act.

E. RIGHTS TO PROCEEDS OF SALE OF EXEMPT PROPERTY

As a general rule, the debtor is not entitled to the proceeds of a voluntary sale

In Re: Reid (1937), 1 W.W.R. 546 (Sask. D.C.).

However, the debtor will have priority over an execution creditor, to the extent of his exemption,

where the sale is involuntary.

Royal Trust Co. v. Dekker (1976), 6 W.W.R. 577; and Tripp v. Gray, supra.



A question may arise as to what constitutes a voluntary sale.

In Re: Bankruptcy of Robert W. Fitzpatrick the Court held that where the sale was caused by the

demands of creditors, then such sale, although undertaken voluntarily, cannot truly be described

as voluntary and the debtor is allowed to claim the exemption.

Re: Bankruptcy of Robert W. Fitzpatrick (1984), Sask. D. 3864-03.

The Saskatchewan Court of Appeal has also recognized a debtor’s right to claim the proceeds of

sale of his homestead exempt where he had consented to the sale by the mortgagee, but only

because the debtor had agreed to the sale on the basis that he would receive his exemption.

Higgins Co. Ltd. v. McNabb 33 C.B.R. (N.S.) 243 (Sask. C.A.).

A further question arises as to how long the proceeds of sale keep their exempt status. If the

debtor purchases non-exempt property, then no reason exists to exempt such property from

seizure and sale.

X. DISTRIBUTION UNDER THE CREDITORS’ RELIEF ACT

A. COMMON LAW

At common law, a judgment creditor was not required to share the proceeds of sale with other

creditors.

The system operated on a “first in time” basis, so where a Sheriff had several writs issued by

different creditors against the same debtor, he first executed the writ which was first delivered to

him and when he sold sufficient to satisfy that writ, he should sell under the next writ. Each writ

bound the goods of the debtor from the time of delivery to the Sheriff. These deliveries then set

the respective priorities of the creditors.



The common law became the law of Canada. However, most Canadian jurisdictions have

replaced the common law with a statutory system of compulsory sharing of the proceeds of

execution among judgment creditors. This legislation is the Creditors’ Relief Act in

Saskatchewan.

B. THE CREDITORS’ RELIEF ACT

1. Process

The fundamental goal of the Act requires a judgment creditor to share the proceeds of his

execution, without preference, with other judgment creditors who have filed writs or certificates

with the Sheriff. Section 3 of the Act states:

Subject to the other provisions of this Act and subsection 32(4) of the Enforcement of Maintenance Orders Act, there shall be no priority among creditors by execution from the Court of Queen’s Bench.

The Act, in s. 4 to s. 11, sets out the procedure to accomplish this goal.

Simply put, the Sheriff levies money upon an execution against the debtor’s property and, after a

two month waiting period, distributes the proceeds rateably among all judgment creditors. The

Sheriff has the power to make further levies against the property of the debtor: the Creditors’

Relief Act, s. 7(1) and s. 20(4).

However, in reality, the debtor is usually insolvent after the initial seizure.

2. Scope

Money realized by the Sheriff as a result of attachment of personal property must be distributed

rateably: the Creditors’ Relief Act, s. 5.

In the Act’s terminology, moneys are “levied under execution” and must be shared.



If money is obtained other than by “levy”, the creditor does not have to share the proceeds with

other judgment creditors. Determining whether the Act applies, then, is dependent on whether

there has been a “levy”.

In Mortimore v. Cragg the test established for the existence of a “levy” was whether there had

been a seizure and a payment resulting, directly or indirectly, from the seizure. If these elements

were found, a levy had occurred.

Mortimore v. Cragg (1978), 47 L.J.Q.B. 348 (C.A.).

The issue was considered by the Saskatchewan Courts in Trust and Loan Co. v. Cook. In that

case, land subject to a writ was transferred and a mortgage was taken in favour of the plaintiff.

The plaintiff wanted to pay out the writ and the question before the Court was whether this

amounted to a levy. The Court held that this was not a levy because the land was no longer the

“property of the debtor”. As well, there had been no seizure as required by the Mortimore test.

Trust and Loan Co. v. Cook (1910), 14 W.L.R. 727, 3 Sask. L.R. 210 (Sask. S.C).

In several situations, it has been decided or suggested that payments made to a Sheriff need not

be distributed because they do not amount to a levy, including the following.

(a) The debtor pays the Sheriff before or after a Writ of Execution has been issued but before seizure: Mortimore v. Cragg.

(b) The Sheriff attempts to seize but finds no assets and returns the writ nulla bona, following which the debtor pays the Sheriff: Chambers v. Louis (1943), 1 W.W.R.497 (Sask. C.A.).

(c) The debtor pays as a result of a seizure which is made but is later withdrawn or found to be invalid: Mortimore.

It was well settled in Saskatchewan that monies attached pursuant to a Garnishee Summons are

not subject to the priorities and distribution patterns set out in the Act.

Royal Bank v. Lee (1915), 8 W.W.R. 338; and Mills v. Harris (1914), 7 W.W.R. 968.



However, in the Polyco Window case, Justice Halvorson found to the contrary, holding that

monies garnisheed were to be shared as provided in the Creditors’ Relief Act.

Polyco Window Manufacturing Ltd. v. Prudential Assurance Co., [1994] S.J. No. 137 (Q.B.).

In arriving at this decision, Justice Halvorson departed from the decisions in the cases above, and

in fact, determined that he would not follow an earlier decision of his own, dating back a number

of years.

The decision has been subject to some criticism and there is no subsequent case which appears to

consider the Polyco decision on its merits, so perhaps it will fall to the Court of Appeal to

determine the issue in due course.

3. Certification System

Sections 17 to 21 of the Creditors’ Relief Act provide for creditors other than judgment creditors

to obtain a Certificate of Proof of Claim from the Local Registrar.

The creditor files an affidavit with the Sheriff, setting out the particulars of his claim, which is

then served on the judgment debtor. If the judgment debtor does not respond to the affidavit

within 10 days, the Registrar may issue a Certificate, which has the same effect as a judgment.

The Certificate permits the creditor to participate in the distribution of funds seized under a Writ

of Execution.

The certification system allows a Certificate to be obtained in only 10 days after the date of

service rather than the usual 20 days to obtain judgment in an ordinary action. However, most

creditors utilize the normal practice of issuing a Statement of Claim to initiate an action and the

certification system is rarely used.



4. Priorities

Priorities are specified by the Creditors’ Relief Act. Of the monies levied by the Sheriff, the

costs of the execution, seizure and sale shall be paid first: s. 9.

Section 10 of provides that money realized by the Sheriff from the sale of land redeemed

pursuant to s. 20(1) of the Tax Enforcement Act is first applied toward the repayment to the

creditor of the redemption money.

Section 12 provides that only the creditors that have participated in interpleader proceedings are

entitled to share in the benefit.

Priority is given to wage claims under s. 15 of the Act. Provided that the employees of the

execution debtor have filed their claims for wages in the office of the Sheriff prior to the time

fixed for distribution of the monies under the seizure, their claims for wages not exceeding three

months will take priority over the claims of the other execution creditors. And finally, by virtue

of the Crown prerogative, a Writ of Execution issued by the Crown will take priority over a

creditor’s Writ of Execution.

Bank of Nova Scotia v. Hart (1980), 33 A.R. 338 (Q.B.); A.G. of Canada v. Sheena Management

Services Ltd. (1984), 3 W.W.R. 670 (B.C.S.C.); Norfolk Trust Co. v. Hardy (1984), 5 W.W.R.

86 (Sask. Q.B.); and Farley v. Badley (1990), 3 W.W.R. 676 (Sask. Q.B.).

XI. CONCLUSION

The foregoing is but a brief review of the more important issues. There will undoubtedly be

others that arise daily in practice.

Diligence and periodic review of the case law is prudent, given the unsettled nature of some of

the issues and the developing jurisprudence in others.



XII. ACKNOWLEDGEMENTS

Thanks are due to all of the Bar Admission classes which have contributed comments and ideas

over the years.

Particular thanks go to Don Layh, author of an earlier version of this paper, for his research and

insight.


PRECEDENTS

Revised August 2004 Not to be used or reproduced without permission – Saskatchewan Legal Education Society Inc.

Saskatchewan: Bar Admission Program P - 1 Debtor Creditor – Unsecured Debt Recovery in Saskatchewan Precedents - Garnishee Summons

Q.B. No. 1234 of 1991 CANADA PROVINCE OF SASKATCHEWAN

IN THE QUEEN’S BENCH

JUDICIAL CENTRE OF SASKATOON

BETWEEN:

SMITH INDUSTRIES LTD. PLAINTIFF

- and - JANE DOE

DEFENDANT - and -

WIDGET CO. LTD GARNISHEE

GARNISHEE SUMMONS

TO THE ABOVE NAMED GARNISHEE:

YOU ARE HEREBY NOTIFIED THAT a suit has been entered in this Court in which

the Plaintiff claims of the Defendant the sum of $67,800.00 as shown by a Statement of Claim

filled in Court, a copy of which is hereto annexed;

AND it is alleged on Affidavit filed that you are indebted to the said Defendant.

AND you are required within twenty days from the service hereof to notify the Local

Registrar by statement in writing whether or not there is any debt due or accruing due from you

to the Defendant and, if so, what debt, and why you should not pay the same into Court to the

extent of the Plaintiff’s claim and costs.


P - 2 Saskatchewan: Bar Admission Program Debtor Creditor – Unsecured Debt Recovery in Saskatchewan Precedents - Garnishee Summons

ISSUED at the City of Saskatoon, in the province of Saskatchewan this _______ day of

____________________, 19__.

(L.S.)

______________________________ Local Registrar

NOTE: TAKE NOTICE THAT IN DEFAULT OF YOUR NOTIFYING THE LOCAL REGISTRAR YOU ARE LIABLE TO HAVE JUDGMENT ENTERED UP AGAINST YOU.

This document was delivered by: ROBERTSON STROMBERG Barristers and Solicitors 600, 105 – 21st Street East Saskatoon, Saskatchewan S7K 0B3 Address for service is as above. LAWYER IN CHARGE OF FILE: [Lawyer] TELEPHONE: (306) FILE: 5678.1


Saskatchewan: Bar Admission Program P - 3 Debtor Creditor – Unsecured Debt Recovery in Saskatchewan Precedents - Affidavit in Support of Garnishee Summons


IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON

BETWEEN:

SMITH INDUSTRIES LTD. PLAINTIFF

- and -

JANE DOE

DEFENDANT - and -

WIDGET CO. LTD

GARNISHEE

AFFIDAVIT OF JOHN SMITH

I, JOHN SMITH, of the City of Saskatoon, in the Province of Saskatchewan, Credit

Administrator, MAKE OATH AND SAY THAT:

1. I am the Credit Administrator and duly authorized agent of the Plaintiff, SMITH

INDUSTRIES LTD., and as such, have personal knowledge of the facts deposed to herein,

except where stated to be based on information and belief, and where so stated, I do verily

believe the same to be true.

2. The Defendant, JANE DOE, is justly and truly indebted to the Plaintiff in the sum of

$67,800.00, being the balance owing pursuant to several contracts for the supply of goods, as

more particularly set out in the Statement of Claim, appended to this my affidavit as Exhibit “A”.

I hereby swear to the truth of the allegations contained in that Statement of Claim as if they were

repeated herein.


P - 4 Saskatchewan: Bar Admission Program Debtor Creditor – Unsecured Debt Recovery in Saskatchewan Precedents - Affidavit in Support of Garnishee Summons

3. The indebtedness of the Defendant to the Plaintiff became due and owing on November

30, 1990, which was 30 days after the end of the month in which the goods were supplied to the

Defendant. In addition, the Plaintiff has made a demand for payment of its account in full from

the Defendant, but no payment has been made since the demand. The debt referred to in

paragraph 2 is, therefore, still justly due and owing as it is unpaid and unsatisfied.

4. Based upon information provided to me by the manager of Widget Co. Ltd., to the best of

my information and belief WIDGET CO. LTD., the Proposed Garnishee, is indebted to the

Defendant in an amount which I am unable to specify.

5. I make this Affidavit on behalf of the Plaintiff for the purpose of obtaining a Pre-

judgment Garnishee Summons, pursuant to the provisions of s. 3 of the Attachment of Debts Act,

R.S.S. 1978, C.A-32.

SWORN before me at the City ) of Saskatoon, in the Province ) of Saskatchewan, this ________ ) day of _____________, 19 __. ) ________________________________ ) John Smith _____________________________ ) A Commissioner for Oaths in and for the Province of Saskatchewan. My Commission expires Or Being a Solicitor.

This document was delivered by: ROBERTSON STROMBERG Barristers and Solicitors 600, 105 – 21st Street East Saskatoon, Saskatchewan S7K 0B3

Address for service is as above.

LAWYER IN CHARGE OF FILE: [Lawyer] TELEPHONE: (306) FILE: 5678.1

EXHIBIT “A” (to be appended)


Saskatchewan: Bar Admission Program P - 5 Debtor Creditor – Unsecured Debt Recovery in Saskatchewan Precedents - Affidavit of Service of Garnishee Summons

Q.B. No. 1234 of 1991

CANADA PROVINCE OF SASKATCHEWAN


BETWEEN:

JOHN SMITH PLAINTIFF

- and -

JANE DOE DEFENDANT

- and -


AFFIDAVIT OF SERVICE

I, ___________________________, of the City of Saskatoon, in the Province of Saskatchewan,

Process Server, make oath and say as follows that: 1. I did on the _____ day of ______________, 19___, personally serve the Garnishee,

WIDGET CO. LTD., with a true copy of the Garnishee Summons with attached Statement of

Claim, originals of which were filed in Court on ____________, 19___, respectively, by leaving

the same with [NAME], the [POSITION] of WIDGET CO. LTD. at [ADDRESS]. 2. To effect such service I necessarily travelled _____ kilometres. 3. I am informed by _______________, solicitor for the Plaintiff, and so verily believe, that

originals of the documents referred to herein were filed in Court on the dates as aforesaid. 4. Attached hereto and marked Exhibit “A” is a true copy of the Corporate Registry System

search result with respect to the within Garnishee, Widget Co. Ltd., which indicates that its

registered office is ________________________________.


P - 6 Saskatchewan: Bar Admission Program Debtor Creditor – Unsecured Debt Recovery in Saskatchewan Precedents - Affidavit of Service of Garnishee Summons

SWORN before me at the City ) of Saskatoon, in the Province ) of Saskatchewan, this ________ ) day of _____________, 19 __. ) ) ___________________________ ) _____________________________ ) A Commissioner for Oaths in and for the Province of Saskatchewan. My Commission expires Or Being a Solicitor.

EXHIBIT A – CORPORATE REGISTRY SYSTEM SEARCH

NOTE: Once there is one corporate registry search on the court file, it is not necessary to include paragraph 4 of future Affidavits


Saskatchewan: Bar Admission Program P - 7 Debtor Creditor – Unsecured Debt Recovery in Saskatchewan Precedents - Memorandum to the Judge Seeking Payment Out of Court



BETWEEN:


- and -

JANE DOE DEFENDANT

- and -


MEMORANDUM TO THE JUDGE

THIS IS AN EX PARTE APPLICATION ON BEHALF OF THE PLAINTIFF, JOHN SMITH,

as follows:

1. AUTHORITY FOR EX PARTE APPLICATION

Subsection 14(2) of the Attachment of Debts Act, R.S.S. 1978, c. A-32.

2. RELIEF SOUGHT

An order directing payment out of Court of the sum of $1,500.00 paid into Court by

Garnishee, WIDGET CO. LTD.

3. CITATIONS OF AUTHORITIES RELIED UPON

None.

THERE IS FILED HEREWITH: 1. Pre-judgment Garnishee Summons directed to WIDGET CO. LTD. issued on April 1, 1991.


P - 8 Saskatchewan: Bar Admission Program Debtor Creditor – Unsecured Debt Recovery in Saskatchewan Precedents - Memorandum to the Judge Seeking Payment Out of Court 2. Affidavit of Service deposing that the Pre-judgment Garnishee Summons was personally

served on the Garnishee, WIDGET CO. LTD., on April 2, 1991. 3. Affidavit of Service deposing that the Pre-judgment Garnishee Summons was personally

served on the Defendant, JANE DOE, on April 9, 1991. 4. Affidavit of Search deposing that a search of the records of this cause kept by the

Registrar of this Honourable Court revealed that it has not been suggested by the

Garnishee, or any person claiming to be interested, that the debt attached is not or may

not be attached, or belongs to a third person, or is subject to a lien or charge upon it. 5. Default Judgment in the amount of $2,000.00 issued on April 15, 1991. 6. Draft Ex Parte Order. ALL OF WHICH IS RESPECTFULLY SUBMITTED. DATED at the City of Saskatoon, in the Province of Saskatchewan, this _____ day of

_____________, 19___. ROBERTSON STROMBERG Per: ___________________________ Solicitor for the Plaintiff JOHN SMITH This document was delivered by: ROBERTSON STROMBERG Barristers and Solicitors 600, 105 – 21st Street East Saskatoon, Saskatchewan S7K 0B3 Address for service is as above. LAWYER IN CHARGE OF FILE: [Lawyer] TELEPHONE: (306) FILE: 5678.1


Saskatchewan: Bar Admission Program P - 9 Debtor Creditor – Unsecured Debt Recovery in Saskatchewan Precedents - Draft Ex Parte Order for Payment Out of Court



BETWEEN:


- and -

JANE DOE DEFENDANT

- and -


BEFORE THE HONORABLE ) ___________ DAY JUSTICE ________________ ) THE ______ OF ______________, IN CHAMBERS ) 19___

DRAFT EX PARTE ORDER

UPON the application of [Lawyer], counsel on behalf of the Plaintiff, and upon having

read the Memorandum to the Judge, Pre-judgment Garnishee Summons, Affidavits or Service,

Certificate of Search, Default Judgment, all filed;

IT IS ORDERED that the sum of $1,500.00 paid into Court by the Garnishee, WIDGET

CO. LTD., be paid out of Court to Robertson Stromberg in trust on behalf of the Plaintiff, JOHN

SMITH, to be applied firstly to the costs of the proceedings herein, to be taxed, and secondly to

the amount owing under the Judgment in this action.


P - 10 Saskatchewan: Bar Admission Program Debtor Creditor – Unsecured Debt Recovery in Saskatchewan Precedents - Draft Ex Parte Order for Payment Out of Court

ISSUED at the City of Saskatoon, in the Province of Saskatchewan, this _____ day of

________________, 19___.

______________________________ LOCAL REGISTRAR (L.S.)

TAKE NOTICE THAT EVERY ORDER MADE WITHOUT NOTICE TO THE RESPONDENT OR PERSON AFFECTED BY THE ORDER, EXCEPT WHERE SUCH ORDER IS CONSENTED TO BY THE RESPONDENT OR PERSON AFFECTED BY THE ORDER OR IS OTHERWISE AUTHORIZED BY LAW MAY BE SET ASIDE OR VARIED ON APPLICATION TO THE COURT. YOU SHOULD CONSULT YOUR SOLICITOR AS TO YOUR RIGHTS. This document was delivered by: ROBERTSON STROMBERG Barristers and Solicitors 600, 105 – 21st Street East Saskatoon, Saskatchewan S7K 0B3 Address for service is as above. LAWYER IN CHARGE OF FILE: [Lawyer] TELEPHONE: (306) FILE: 5678.1


Saskatchewan: Bar Admission Program P - 11 Debtor Creditor – Unsecured Debt Recovery in Saskatchewan Precedents - Appointment for Examination in Aid of Execution

Q.B. NO. ____ OF A.D. 19___


BETWEEN:

** PLAINTIFF

- and -

** DEFENDANTS

______________________________________________________

APPOINTMENT OF EXAMINATION IN AID OF EXECUTION

_______________________________________________________

ROBERTSON STROMBERG BARRISTERS AND SOLICITORS

600, 105 – 21ST STREET EAST SASKATOON, SASKATCHEWAN

S7K 0B3 FILE NO. 4425.154


P - 12 Saskatchewan: Bar Admission Program Debtor Creditor – Unsecured Debt Recovery in Saskatchewan Precedents - Appointment for Examination in Aid of Execution

Q.B. NO. ____ OF A.D. 19___

APPOINTMENT FOR EXAMINATION IN AID OF EXECUTION

UPON THE APPLICATION of _____________, solicitor on behalf of the execution creditor,

___________, I HEREBY APPOINT _________day, the ________ day of _____________ A.D.

19 __ at the hour of ___________ o’clock in the afternoon at the offices of

______________________, in the City of Saskatoon, in the Province of Saskatchewan, as the

date, time and place for the Examination of the Defendant, ___________________, of the City

of Saskatoon, in the Province of Saskatchewan, in Aid of Execution of Record in this Judicial

Centre as Q.B. No. _____ of A.D. 19 ___ pursuant to Rule 383 of the Queen’s Bench Rules of

Court.

ISSUED at the City of Saskatoon, in the Province of Saskatchewan, this ____ day of

______________, A.D. 19___.

______________________________ Local Registrar


Saskatchewan: Bar Admission Program P - 13 Debtor Creditor – Unsecured Debt Recovery in Saskatchewan Precedents - Judgment

Q.B. No. <NO> OF <YC> CANADA PROVINCE OF SASKATCHEWAN

IN THE QUEEN’S BENCH JUDICIAL CENTRE OF <JC>

BETWEEN:

<NP> PLAINTIFF

- and -

<ND> DEFENDANT

JUDGMENT The <DJ> day of <MJ>. The <JD>, <NJD>, not having delivered any defence to the Statement of Claim herein; IT IS THIS DAY ADJUDGED that the <PL> recover against the <JD>, <NJD>, $<CI> and costs to be taxed. (L.S.) ________________________ (Deputy) Local Registrar THE ABOVE COSTS have been taxed and allowed at $<C> this <DJ> day of <MJ>. COMPUTATION OF JUDGMENT: Claim $ <1> Interest $ <2> Costs (other than service) $ <3> Service Fees $ <4> TOTAL $ <T>


P - 14 Saskatchewan: Bar Admission Program Debtor Creditor – Unsecured Debt Recovery in Saskatchewan Precedents - Judgment (L.S.)

__________________________________ (Deputy) Local Registrar

This document was delivered by: ROBERTSON STROMBERG Barristers and Solicitors 600, 105 – 21st Street East Saskatoon, Saskatchewan S7K 0B3 Address for service is as above. LAWYER IN CHARGE OF FILE: [Lawyer] TELEPHONE: (306) FILE: 5678.1


Saskatchewan: Bar Admission Program P - 15 Debtor Creditor – Unsecured Debt Recovery in Saskatchewan Precedents - Præcipe for Writ of Execution



BETWEEN:

<NP> PLAINTIFF

- and -

<ND> DEFENDANT

PRÆCIPE FOR WRIT OF EXECUTION

REQUIRED a Writ of Execution directed to the Sheriff of the Judicial Centre of <SJ> to levy

against the goods and lands of <NJD>, the sum of $<T>, and interest thereon at the rate of 5 per

centum per annum from the <DJ> day of <MJ>.

<JO> dated the <DJ> day of <MJ>.

DATED this <DW> day of <MW>.

TO THE LOCAL REGISTRAR

ROBERTSON STROMBERG Per: ________________________ <L>


P - 16 Saskatchewan: Bar Admission Program Debtor Creditor – Unsecured Debt Recovery in Saskatchewan Precedents - Præcipe for Writ of Execution

(This page has been intentionally left blank.)


Saskatchewan: Bar Admission Program P - 17 Debtor Creditor – Unsecured Debt Recovery in Saskatchewan Precedents - Writ of Execution



BETWEEN:

<NP> PLAINTIFF

- and -

<ND> DEFENDANT

WRIT OF EXECUTION

ELIZABETH THE SECOND BY THE GRACE OF GOOD OF THE UNITED KINGDOM,

CANADA AND HER OTHER REALMS AND TERRITORIES QUEEN, HEAD OF THE

COMMONWEALTH, DEFENDER OF THE FAITH.

To the Sheriff of the Judicial Centre of <SJ>.

You are commanded that of the goods and lands of <NJD>, of <DC>, in the Province of <DP>,

you cause to be made $<T>, which the <PL>, by the <JO> of the said Court, dated the <DJ> day

of <MJ>, recovered against <6>.

And that you have the said money and in what manner you shall have executed this Writ make

appear to the said Court at <JCL>, immediately after the execution thereof before the said Court

at <JCL>, together with this Writ.

ISSUED at the <JCC> of <JCL>, in the Province of Saskatchewan, this <DW> day of <MW>.

(L.S.) __________________________________ (Deputy) Local Registrar


P - 18 Saskatchewan: Bar Admission Program Debtor Creditor – Unsecured Debt Recovery in Saskatchewan Precedents - Writ of Execution

THE SHERIFF: Levy the sum of $<T>, with interest from the <DJ> day of <MJ>, at the rate of 5 per centum per annum, together with $<SF> for the costs of this Writ besides your own fees, poundage and other legal expenses of execution.

Dated this <DW> day of <MW>.

______________________________ <L> Solicitor for the Plaintiff Q.B. NO. <NO> OF <YC> CANADA PROVINCE OF SASKATCHEWAN IN THE QUEEN’S BENCH JUDICIAL CENTRE OF <JC> _________________________________________________________________ <NP>

- and -

<ND> _________________________________________________________________ THIS writ was issued by <L>, of <CL>, in the Province of Saskatchewan, Solicitor for the Plaintiff who resides at <CP>, in the Province of <PP>, and whose address for service is at the office of:

ROBERTSON STROMBERG Barristers and Solicitors 600, 105 – 21st Street East Saskatoon, SK S7K 0B3

I CERTIFY that the within is a true copy of a Writ of Execution against goods and lands,

together with all endorsements thereon, now in my hands to be executed, issued out of Queen’s

Bench Court at the Judicial Centre of <JCL>, and delivered to me at _____ _m. on the ________

day of ____________, 19___. DATED this _____ day of ______________, 19___.

___________________________

Sheriff of the Judicial Centre of <SJ>


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