Federal Courts Rules (SOR/98-106)

Marginal note:Examinations

• 426 (1) A person who has obtained an order for the payment of money may

  • (a) conduct an oral examination of the judgment debtor or, if the judgment debtor is a corporation, of an officer of the corporation, as to the judgment debtor’s assets; and

  • (b) bring a motion for leave to conduct an oral examination of any other person who might have information regarding the judgement debtor’s assets.

• Marginal note:Service of notice of motion

  (2) In respect of a motion brought under paragraph (1)(b), the notice of motion shall be served on the judgement debtor and personally served on the person to be examined.

• Marginal note:Criteria for leave

  (3) On a motion brought under paragraph (1)(b), the Court may grant leave to conduct the oral examination and determine the time and manner of conducting the examination, if it is satisfied that

  • (a) the person to be examined may have information as to the judgment debtor‘s assets;

  • (b) the moving party has been unable to informally obtain the information from the person to be examined or from another source by any other reasonable means;

  • (c) it would be unfair not to allow the moving party to conduct the examination; and

  • (d) the examination will not cause undue delay, inconvenience or expense to the person to be examined or to the judgment debtor.

Marginal note:Possession of land

• 427 (1) An order for possession of real property or immoveables may be enforced by

  • (a) a writ of possession, in Form 427; and

  • (b) in respect of a person referred to in rule 429, an order of committal or a writ of sequestration, or both.

• Marginal note:Limitation

  (2) A writ of possession shall be issued only if the Court is satisfied that every person in possession of the whole or any part of the real property or immoveables has received notice sufficient to enable the person to apply to the Court for any relief to which the person may be entitled.

Marginal note:Delivery of personal property and movables

• 428 (1) An order for the delivery of personal property or movables that does not give the person against whom the order is made the alternative of paying an amount equal to the value of the personal property or movables may be enforced by

  • (a) a writ of delivery to recover the personal property or movables, in Form 428; and

  • (b) in respect of a person referred to in rule 429, an order of committal or a writ of sequestration, or both.

• Marginal note:Delivery of personal property or movables or amount equal to value

  (2) An order for the delivery of personal property or movables or the payment of an amount equal to their value may be enforced by

  • (a) a writ of delivery to recover the personal property or movables or an amount equal to their value, in Form 428; and

  • (b) in respect of a person referred to in rule 429, a writ of sequestration.

Marginal note:Writ of sequestration and order of committal

• 429 (1) Where a person who is required by an order to perform an act within a specified time refuses or neglects to do so within that time, or where a person disobeys an order to abstain from doing an act, the order may, with the leave of the Court, be enforced by

  • (a) a writ of sequestration against the property of the person;

  • (b) where the person is a corporation, a writ of sequestration against the property of any director or officer of the corporation; and

  • (c) subject to subsection (2), in respect of an order other than for payment of money, an order of committal against the person or, if the person is a corporation, against any director or officer of the corporation.

• Marginal note:Limitation

  (2) Where under an order requiring the delivery of personal property or movables a person who is liable to execution has the alternative of paying an amount equal to the value of the personal property or movables, the order shall not be enforced by an order of committal.

Marginal note:Personal service required

430 Unless the Court orders otherwise, an order shall not be enforced against a person under rule 429 unless the order has been personally served on the person.

Marginal note:Performance by other person

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

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

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

Marginal note:Non-performance of condition precedent

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

Writs of Execution

Marginal note:Requisition for writ of execution

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

• Marginal note:When writ may be issued

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

• Marginal note:Endorsement on writ

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

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

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

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

Marginal note:Limitation on issuance

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

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

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

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

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

• Marginal note:Period of validity of order

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

Marginal note:Leave to issue writ in aid

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

Marginal note:Ex parte motion for leave to issue writ

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

Marginal note:Period of validity of writ

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

• Marginal note:Requisition to extend validity of writ

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

• Marginal note:Conditions

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

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

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

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

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

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

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

  • (c) the writ is not expired.

• Marginal note:Extension indicated on writ

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

• Marginal note:Effect of extended writ

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

Marginal note:Advance or security required

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

Marginal note:Notice to sheriff

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

• Marginal note:Order to sheriff to comply

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

• Marginal note:Directions from Court

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

Marginal note:Multiple writs for single order

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

Marginal note:Leave to issue writ of sequestration

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

• Marginal note:Personal service of notice

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

Marginal note:Multiple writs of seizure and sale

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

• Marginal note:Different geographical areas

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