The collection of a judgement is governed by the Civil Enforcement Act, R.S.A. 2000, c-C-15.
Once a judgment for the payment of money has been granted and filed with the Clerk of the Court of Queen’s Bench, the judgment creditor must then file a Writ of Enforcement with the Clerk of the Court of Queen’s Bench. A copy of this filed writ must then be registered in the Personal Property Registry, and once registered in can be enforced anywhere in Alberta without regard to the Judicial District in which the judgment debtor resides or in which the judgment was granted.
Before starting any enforcement proceedings, it is important to check with the Personal Property Registry to determine if there are any other Writs of Enforcement registered against the judgment debtor because all enforcement proceedings are deemed to be taken on behalf of and for the benefit of all the enforcement creditors. Further, if the judgment debtor has land, the writ should be registered against the Certificate of Title. It is important that one complies with the provisions contained in the Civil Enforcement Act because a person who has suffered a loss or damage as a result of another person’s failure to comply to the Act, has a cause of action against the other person with respect to that failure and is entitled to a judgment for damages suffered or $200.00, whichever is greater.
The Writ of Enforcement is in force only as long as the judgment in respect to which it is issued is in force [ten years unless the judgment is renewed or an action has been brought on that judgment within a ten year period]. The registration of a writ under the Land Titles Act is in effect for the duration of the judgment. However, the registration at Personal Property Registry is only in effect for two years from the date it is registered. It must be renewed to maintain its status, so it is very important to keep track of the expiry date to prevent the registration of the writ from lapsing.
The instructing creditor, [the one who takes the proceedings to either instruct seizure of the debtors goods or garnishment of debts owing to the debtor] will be entitled to its taxable costs, i.e. costs as permitted by the Alberta Rules of Court, and the first $2,000 collected after the payment of statutory claims such as Worker’s Compensation Board, Maintenance Enforcement, secured creditors who may have priority over your claim and the costs of the civil enforcement agent. The remaining funds, up to $15,000, will be divided on a pro rata basis amongst all persons who have registered their writs with the Personal Property Registry. If the amount of money collected exceeds $15,000 the instructing creditor is entitled to 15% of the excess over $15,000. Since the instructing creditor is only entitled to the first $2,000, the importance of determining the total amount owed to the judgment creditors registered with the Personal Property Registry becomes apparent. If your writ is for $10,000 and the total amount of judgment debts registered is $100,000, being the instructing enforcement creditor may be futile unless the judgment debtor has sufficient assets to satisfy most of the judgments.
To effect seizure, the judgment creditor so instructs a Civil Enforcement Agency which has been appointed by the Sheriff for this purpose. The letter of instruction must contain a deposit to cover the fees of the enforcement agency and an agreement to indemnify the agency from any liability for carrying out the instructions of the judgment creditor. The agency must also be provided with a Warrant, a Notice of Seizure of Personal Property, addendum to Notice of Seizure of Personal Property, a Notice of Objection of Seizure of Personal Property, information for the debtor and the undertaking of indemnification.
Upon receipt of the necessary documents, the civil enforcement agency then assigns the matter to a bailiff who will attend upon the judgment creditor to effect seizure. Once the seizure has been effected, the bailiff will either leave the goods with the judgment creditor on a bailees undertaking or remove and store the goods. The judgment creditor then has fifteen days to file the Notice of Objection. If the judgment creditor does not file a Notice of Objection and does not pay the judgment debt, the bailiff may then take steps to have the goods sold.
If the judgment debtor files a Notice of Objection, an application to the court will be required to determine the validity of the objection. If the court finds that the objection is not valid, the court will then order the goods sold with costs of the application against the judgment debtor.
Unless the judgment against the judgment debtor is for the payment of maintenance or alimony, or arises out of an act for which the judgment debtor has been convicted of an offence under the Criminal code, or has abandoned the seized property, a judgment debtor may be entitled to have the following goods exempt from seizure:
- food required by the judgment debtor and the dependants for the next twelve months;
- clothing which is required for the judgment debtors and his dependants up to a value of $4,000;
- household furnishings and appliances up to a value of $4,000;
- one motor vehicle up to a value of $5,000;
- medical and dental aid required by the judgment debtor or his dependants;
- personal property necessary for the proper and efficient running of a judgment debtor’s farm for the next twelve months provided the farm is the judgment debtors principal source of income; or
- personal property required by judgment debtor to earn income from his occupation up to a value of $10,000.
Land which has been seized cannot be offered for sale until the expiration of 180 days after service of a Notice of intention to sell the land. The 180 day period can be shortened by the court if the debtor does not claim an exemption on the basis that the land forms part of his principal residence. A judgment debtor has a maximum exemption for his equity in his principal residence of $40,000. If the judgment debtor is a co-owner of the residence, the amount of the exemption allowed is reduced to the amount that is proportionate to the enforcement debtors ownership interest in the residence. Thus, if the judgment debtor is a joint tenant with his or her spouse, the exemption would be $20,000.
To attach a judgment debtors employment income, bank accounts or other debts owing to the judgment debtor by a third party, the judgment creditor must commence garnishee proceedings. These proceedings are commenced by the issuance of a Garnishee Summons by the Clerk of the Court. Once the summons has been issued, it will remain in effect until the expiration of one year from the date it was issued [unless it relates to deposit accounts when it expires after sixty days], the third party being garnisheed pays the amount into the court , the enforcement creditor notifies the third party that the garnishee summons is no longer in effect, or the garnishment proceedings have been terminated by the court.
As there are various rules governing the garnishee proceedings depending on the type of debt being garnisheed, it is recommended that a lawyer be consulted prior to embarking on this enforcement procedure.