NLR 102/99 - Judgment Enforcement Regulations, 1999 under the Judgment Enforcement Act

NEWFOUNDLAND AND LABRADOR REGULATION 102/99 Judgment Enforcement Regulations, 1999 under the Judgment Enforcement Act (O.C. 99-476) Amended by: 90/01 NEWFOUNDLAND AND LABRADOR REGULATION 102/99 Judgment Enforcement Regulations, 1999 under the Judgment Enforcement Act (O.C. 99-476) (Filed November 29, 1999 Under the authority of section 181 of the Judgment Enforcement Act , the Lieutenant-Governor in Council makes the following regulations. Dated at St. Johns , October 5, 1999 . John R. Cummings, Q.C. Clerk of the Executive Council REGULATIONS Analysis 1. Short title PART I INTERPRETATION 2. Definitions PART II NOTICES OF JUDGMENT AND NOTICES OF ATTACHMENT 3. General debtor information 4. Debtor name 5. Corporations 6. Estate 7. Trade union 8. Unnamed trust 9. Bankrupt 10. Bankrupt enterprise 11. Partnership 12. Syndicate or joint venture 13. Other enterprise 14. Representatives of an enterprise 15. Debtor information 16. Description of serial numbered goods 17. Order for costs 18. Correction of information 19. Assignment of judgment 20. Removal of data 21. Demand for discharge PART III INFORMATION REGARDING ENFORCEMENT 22. Examination of debtor 23. Examination of persons other than the debtor 24. Examination of persons to whom property transferred 25. Further examination 26. Examination of other persons 27. Who conducts examination 28. Notice of examination 29. Notice 30. Manner of examination 31. Default procedure 32. Oath and interpreter 33. Where person to be examined resides outside the province 34. Production on examination 35. Re-examination on an examination in aid of enforcement 36. Objections 37. Improprieties on examination 38. Penalty for refusal or neglect 39. Examination to be recorded 40. Contempt order 41. Costs 42. Non-appearance at examination 43. Financial questionnaire PART IV SEIZURE AND SALE OF PROPERTY 44. Identification of property 45. Seizure 46. Identification of property PART V GARNISHMENT 47. Amendment of garnishee order PART VI EXEMPTIONS 48. Exemptions 49. Income exemption PART VII MISCELLANEOUS PROVISIONS 50. Records 51. Required form 52. Service of documents 53. Expenses and costs 54. Two dollar minimum 55. Repeal 56. Commencement Short title 1. These regulations may be cited as the Judgment Enforcement Regulations, 1999 . 102/99 s1 PART I INTERPRETATION Back to Top Definitions 2. In these regulations (a) "Act" means the Judgment Enforcement Act ; (b) "appliances" and "household furnishings" means (i) a washing machine, (ii) a clothes dryer, (iii) bedroom suites and bedding that are reasonably necessary for the debtor and his or her dependants, (iv) an oven and stove top burners, (v) dishes and kitchen utensils necessary for the debtor and his or her dependants, and (vi) strollers, cribs and highchairs necessary for the debtors dependants; (b.1) "cohabiting partner" means either of 2 persons who are cohabiting in a conjugal relationship outside of marriage or have cohabited in such a relationship within the preceding year; (c) "dependant" means with respect to a debtor (i) a brother, sister, parent or grandparent, (ii) a child or other person who is less than 16 years of age, and (iii) a person who is 16 years or more of age and who is in regular attendance at school or because of a mental or physical disability is unable to earn a livelihood and who lives in the same household as the debtor or whose care in an institution is paid for by the debtor; (d) "enterprise" means a corporation, estate of a deceased person, trade union, named or unnamed trust, bankrupt, partnership, syndicate or joint venture, or a group or business organization which is not an individual; (e) "motor vehicle" means a vehicle propelled, driven or controlled otherwise than by muscular power, other than a trailer or a vehicle running on fixed rails; (f) "registrant" means a creditor, solicitor or other person acting for a creditor who registers a notice of judgment or a notice of attachment and information or documents related to that notice of judgment or notice of attachment in the registry; (g) "serial numbered goods" means a motor vehicle, trailer, mobile home, aircraft, boat, or an outboard motor for a boat; and (h) "spouse" means either of 2 persons who (i) are married to each other, (ii) are married to each other by a marriage that is voidable and has not been voided by a judgment of nullity, or (iii) have gone through a form of a marriage with each other, in good faith, that is void and are cohabiting or have cohabited with each other within the preceding year. 102/99 s2 ; 90/01 s1 PART II NOTICES OF JUDGMENT AND NOTICES OF ATTACHMENT Back to Top General debtor information 3. (1) Where the debtor is a natural person, the registrant (a) shall, in the manner required under section 4, enter the name of that debtor under the heading of "debtor"; and (b) may, on the required form, enter the birth date of the debtor with the year entered first followed by the number of the month and the number of the day. (2) Where the debtor is an enterprise, the registrant (a) shall, in the manner required under section 5, enter the name of that debtor under the heading of "debtor"; and (b) may on the required form, enter the name and position of a contact person within the enterprise to whom inquiries relating to the registration may be addressed. (3) Where a judgment relates to more than one debtor, the registrant shall identify each debtor as a separate debtor when registering the information on that judgment. 102/99 s3 Back to Top Debtor name 4. (1) Where the debtor is a natural person, the registrant, on the required form, shall enter the last name of the debtor, followed by the first name and followed by the middle name, if any. (2) Where the debtor is a natural person with more than one middle name, the registrant shall on the required form provide the first of the debtors middle names. (3) Where the debtor is a natural person whose name consists of one word, the registrant shall enter that name in the field for entering the last name of the debtor. (4) Where the debtor is a natural person who carries on a business under a name other than that persons own name, the registrant (a) shall enter that persons own name as a natural person; and (b) may enter, in accordance with section 5, that persons business name as an enterprise name. (5) Where the debtor is a natural person, his or her name shall, for the purpose of section 3, be determined as follows: (a) where the debtor was born in Canada and the debtors birth is registered with a government agency responsible for the registration of births in a province or territory of Canada, the name of the debtor shall be the name stated on the debtors birth certificate; (b) where the debtor was born in Canada but his or her birth is not registered with a government agency responsible for the registration of births, the name of the debtor shall be (i) the name as stated in his or her current passport issued by the Government of Canada, (ii) if the debtor does not have a current Canadian passport, or that information is not available, the name as stated on a current social insurance card issued to the debtor by the Government of Canada, or (iii) if the information under subparagraphs (i) and (ii) does not exist or is not available, the name as stated in a current passport issued to the debtor by the government of the jurisdiction where that debtor habitually resides; (c) where the debtor was not born in Canada but is a Canadian citizen, the name as stated in the debtors certificate of Canadian citizenship; (d) where the debtor was not born in Canada and is not a Canadian citizen, the name of the debtor shall be (i) the name stated in a current visa issued to the debtor by the Government of Canada, (ii) if the debtor does not have a current Canadian visa, or it is not available, the name stated in a current passport issued to the debtor by the government of the jurisdiction where the debtor habitually resides, or (iii) if the debtor does not have a visa or passport referred to in subparagraphs (i) and (ii), or they are not available, the name stated in the birth certificate or equivalent document issued to the debtor by the government agency responsible for the registration of births at the place where the debtor was born; (e) notwithstanding paragraphs (a) to (d), if the debtor changes his or her name after marriage or in accordance with change of name legislation, the name is the name adopted by the debtor after marriage, if that name is recognized under the laws of the jurisdiction where the debtor habitually resides, or the name stated in the debtors change of name certificate or equivalent document; (f) notwithstanding paragraph (e), where the laws of the jurisdiction in which the debtor habitually resides allow a person to use the name adopted after marriage and the name a person had before marriage, and the debtor uses both names, paragraphs (a) to (d) apply and the name of the debtor determined in accordance with those paragraphs and the name of the debtor adopted after marriage shall be registered as separate debtor names; and (g) where paragraphs (a) to (f) do not apply to the debtor, the name is the name stated on any 2 of the following documents issued to the debtor by the Government of Canada or of a province or territory of Canada : (i) a current motor vehicle operators licence, (ii) a current vehicle registration, and (iii) a current medical insurance card. (6) For the purpose of subsection (5), the name of the debtor shall be determined as of the date of the judgment against him or her. (7) In addition to entering the name of a debtor who is a natural person in accordance with subsections (1) to (6), the registrant may enter, on the required form, another name of the debtor of which the registrant has knowledge. 102/99 s4 Back to Top Corporations 5. (1) Where the debtor is a corporation, the registrant shall enter the name of that corporation on the required form. (2) The registrant shall enter on the required form, under separate "debtor" headings, forms of the name of the debtor that is a corporation if the name of that debtor is in more than one of the following forms: (a) an English form; (b) a French form; and (c) a combined English and French form. (3) In entering the name of a debtor that is a corporation, the registrant may enter, with or without a period, the abbreviation "Ltd.", "Ltee", "Inc.", "Incorp.", "Corp.", "Co.", or "Cie" or "Limited", "Limitee", "Incorporated", "Incorporee", "Corporation", "Company" or "Compagnie". 102/99 s5 Back to Top Estate 6. Where the debtor is an enterprise that is the estate of a deceased person, the registrant shall enter on the required form, the first name of the debtor followed by the first of the middle names followed by the last name of the deceased debtor, unless his or her name consists of one name, in which case only that one name shall be entered, followed by the word "estate". 102/99 s6 Back to Top Trade union 7. Where the debtor is an enterprise that is a trade union, the registrant shall enter on the required form (a) the name of the trade union; and (b) in accordance with section 4, the name of each person representing the trade union in the transaction giving rise to the judgment. 102/99 s7 Back to Top Unnamed trust 8. Where the debtor is a trustee acting for an enterprise that is in the form of a trust and the document creating the trust does not designate the name of the trust, the registrant shall enter on the required form, the first name, followed by the first of the middle names and followed by the last name of at least one of the trustees, unless the name of the trustee consists of one word, in which case only that word shall be entered, followed by the word "trustee". 102/99 s8 Back to Top Bankrupt 9. Where the debtor is a trustee acting for an enterprise that is in the form of the estate of a bankrupt natural person, the registrant shall enter on the required form, the first name followed by the first of any middle name, followed by the last name of the bankrupt, unless the name of the bankrupt consists of only one word, in which case that word shall be entered, followed by the word "bankrupt". 102/99 s9 Back to Top Bankrupt enterprise 10. Where the debtor is a trustee acting for an enterprise that is in the form of the estate of a bankrupt enterprise, the registrant shall enter on the required form the name of the bankrupt enterprise followed by the word "bankrupt". 102/99 s10 Back to Top Partnership 11. (1) Where the debtor is a debtor because of membership in an enterprise that is a partnership, the registrant shall enter on the required form (a) in the case of a partnership as defined under the Partnership Act , the name under which the firm carries on business; and (b) in the case of a limited partnership, the firm name of the partnership as required under the Limited Partnership Act . (2) Where the debtor is a debtor because of membership in an enterprise that is a partnership, other than one referred to in subsection (1), the registrant shall enter on the required form (a) the firm name of the partnership; and (b) in accordance with section 4, the name of at least one of the partners. (3) Where, under subsection (2), the partnership does not have a name, the registrant shall enter on the required form and in accordance with section 4, the names of all of the partners. 102/99 s11 Back to Top Syndicate or joint venture 12. Where the debtor is a debtor because of participation in an enterprise that is a syndicate or a joint venture, the registrant shall enter on the required form (a) the name of the syndicate or joint venture as stated in the document creating it; and (b) in accordance with sections 4 and 5, the name of each participant in that joint venture. 102/99 s12 Back to Top Other enterprise 13. (1) Where the debtor is a debtor because of membership or participation in an association, organization or enterprise other than one referred to in sections 6 to 12, the registrant shall enter on the required form (a) the name of the association, organization or enterprise; and (b) in accordance with section 4, the name of each person representing the association, organization or enterprise in the transaction giving rise to the registration. (2) For the purpose of subsection (1), if the name of the association, organization or enterprise is stated in a constitution, charter or other document creating it, the registrant shall enter the name in the form stated in that constitution, charter or other document. 102/99 s13 Back to Top Representatives of an enterprise 14. (1) For the purpose of sections 6 to 13, a person representing an enterprise in a transaction giving rise to a registration is a person with the power to bind the enterprise or its officers or members and who has exercised that power in the formation of the contract or contracts in the transaction. (2) Where under sections 6 to 13 (a) the name of a natural person is to be entered on the required form by a registrant, the name shall be entered in the manner required by sections 3 and 4; or (b) the name of the corporation is to be entered on the required form by a registrant, the name shall be entered in the manner provided under sections 3 and 5. 102/99 s14 Back to Top Debtor information 15. In addition to the name of the debtor required under sections 3 to 14, the registrant shall enter on the required form the address of the debtor and may enter on the required form, the debtors telephone and telecopier number. 102/99 s15 Back to Top Description of serial numbered goods 16. (1) Where goods are to be described by serial number, the registrant (a) shall (i) indicate the type of serial numbered goods to which the registration relates, and (ii) enter the last 25 characters of the serial number or all the characters if the serial number contains less than 25 characters; and (b) may (i) verify the serial number entered by entering it a second time, and (ii) describe the goods by make, manufacturer, model, model year or any other particulars. (2) For the purpose of this section, the serial number for (a) a motor vehicle, other than a combine or tractor, is the vehicle identification number marked on or attached to, the body frame by the manufacturer; (b) a combine, tractor, mobile home or trailer is the serial number marked on, or attached to, the chassis by the manufacturer; (c) a boat that can be registered, recorded or licensed under the Canada Shipping Act ( Canada ) is the registration, recording or licence number assigned to the boat under that Act; (d) a boat not referred to in paragraph (c) is the serial number marked on, or attached to, the boat by the manufacturer; (e) an outboard motor for a boat is the serial number marked on, or attached to the outboard motor by the manufacturer; (f) an aircraft that must be registered under the Aeronautics Act (Canada) or regulations made under that Act in order to be operated in Canada is the registration mark assigned to the airframe by the Department of Transportation (Canada), omitting any hyphen; (g) an aircraft that must be registered under the law of a state, other than Canada, that is a party to the Convention on International Civil Aviation 1944 (Chicago) is the registration mark assigned to the airframe by the relevant licensing authority, omitting any hyphen; and (h) an aircraft not referred to in paragraph (f) or (g) is the serial number marked on, or attached to the airframe by the manufacturer. (3) Where goods referred to in paragraph (a), (b), (d), (e) or (h) do not have a serial number or vehicle identification number marked on, or attached to them by the manufacturer, the serial number is any number of at least 6 characters that is marked on, or attached to those goods. 102/99 s16 Back to Top Order for costs 17. A creditor who received an order for costs in an action where a notice of judgment has previously been registered shall not register that order for costs as a separate notice of judgment but may add those costs to the enforcement debt in accordance with section 22 of the Act. 102/99 s17 Back to Top Correction of information 18. (1) Where information and data registered with respect to a notice of judgment or a notice of attachment is erroneous because of (a) a typographical error; (b) the provision of incorrect information to the sheriff; and (c) a change in status or amount with respect to the information or data entered, the sheriff may amend or change that information or data to ensure that the correct information or data is registered. (2) Where the sheriff amends or changes registered information or data under subsection (1), he or she shall first be satisfied that the amendment or change is necessary and correct and may require further information respecting that necessity or correctness. (3) The instructing creditor, debtor and all creditors with a related notice of judgment or notice of attachment shall be notified by the sheriff of an amendment or change made under subsection (1). (4) If a creditor (a) receives any money on account of the amount owing under an enforcement debt; or (b) receives anything by way of satisfaction, either wholly or in part, of the amount owing under an enforcement debt, the creditor shall, within 15 days from the day that the creditor received that money or that satisfaction, register in the registry a status report to amend the amount owing under the enforcement debt. (5) The requirement to register a status report under subsection (4) does not apply where a creditor receives money or satisfaction by way of a distribution made by the sheriff. 102/99 s18 Back to Top Assignment of judgment 19. (1) A person who is entitled to enforce a judgment may make a total or partial assignment of that judgment to another person. (2) Where the sheriff is satisfied that all of a creditors or another persons rights under a judgment have been assigned, he or she may amend the notice of judgment to show the name of the assignee. (3) Where the sheriff is satisfied that a portion of a creditors or another persons rights under a judgment has been assigned, he or she may divide the notice of judgment and register (a) a replacement notice of judgment in favour of the creditor indicating the amount that remains owing under the judgment to the creditor; and (b) a replacement notice of judgment to the assignee of the judgment indicating the amount that is owing in accordance with the portion assigned to the assignee. (4) Where a replacement notice of judgment is issued under subsection (3), that notice of judgment (a) stands in the place of the notice of judgment that is being replaced; and (b) shall be dated with the same date as that shown on the notice of judgment that is being replaced. (5) For the purpose of the expiration of the notice of judgment and any limitation period which applies to that notice of judgment, the replacement notice of judgment shall be considered to have been registered on the same date as the original notice of judgment filed by the assigning creditor. 102/99 s19 Back to Top Removal of data 20. (1) A creditor, debtor, assignee, or other interested person may, in writing, request that the sheriff remove data and information from the registry where there is or appears to be a defect, omission, irregularity or addition to the information properly contained in the records. (2) The sheriff may remove data and information as requested in accordance with this section or where the sheriff perceives that there is an error of data or information in the registry respecting a notice of judgment or notice of attachment, provided that it is in his or her opinion just and equitable to make that removal. (3) The sheriff may apply to the court for directions with respect to a request made under subsection (1). (4) The instructing creditor, debtor and all persons with a related notice of judgment shall be notified of the removal of information under this section or of an application to the court made under subsection (3). 102/99 s20 Back to Top Demand for discharge 21. (1) A written demand made under subsection 45(2) of the Act shall clearly state the reason for the demand, the nature of the discharge or amendment sought, the names of the creditor and the debtor and the registration number of the notice of judgment. (2) The written demand referred to in subsection (1) shall be served by personal service, facsimile or by registered mail. (3) A copy of the demand referred to in subsection (1) shall be delivered to the sheriff within 10 days of the making of the demand. 102/99 s21 PART III INFORMATION REGARDING ENFORCEMENT Back to Top Examination of debtor 22. A creditor may under section 66 of the Act examine a debtor concerning all matters relevant to the enforcement of a judgment including (a) the debtors assets and income (i) when examined, (ii) when the cause of action arose, or (iii) where the judgment is for costs only, when the proceeding was commenced; (b) what debts are owing to the debtor; (c) the disposal the debtor has made of property since the cause of action arose; and (d) the means the debtor has to satisfy the judgment. 102/99 s22 Back to Top Examination of persons other than the debtor 23. A creditor may examine an officer, a director, manager, partner, sole proprietor, litigation guardian, committee, assignor or trustee of the debtor concerning all matters relevant to the enforcement of the judgment including (a) the names and addresses of shareholders; (b) the number and particulars of shares held or owned by each shareholder and the amount paid in respect of them; (c) the assets and income of the debtor (i) at the time when the examination is held, (ii) when the cause of action arose, or (iii) where the judgment is for costs only, when the proceeding was commenced; (d) what debts are owing to the debtor; (e) the disposal of property made by the debtor since the cause of action arose; and (f) the means which the debtor has to satisfy the judgment. 102/99 s23 Back to Top Examination of persons to whom property transferred 24. Where a debtor has (a) since the cause of action arose; or (b) when the judgment is for costs only, since the proceeding commenced, transferred property which may be seized under enforcement proceedings, the transferee, or an officer, director, manager, partner, committee or trustee of the transferee, may be examined with respect to the transfer and also with respect to any debts or obligations existing between the transferee and the debtor. 102/99 s24 Back to Top Further examination 25. A further examination shall not be conducted without leave of the court until 6 months from the completion of the preceding examination. 102/99 s25 Back to Top Examination of other persons 26. Where difficulty arises in the enforcement of a judgment, the court may order the examination of another person where the court considers it in the interest of justice to do so. 102/99 s26 Back to Top Who conducts examination 27. Where a creditor sets a time and a place for an examination under subsection 66(1) of the Act, the examination shall be conducted before the deputy registrar or assistant deputy registrar of the Supreme Court. 102/99 s27 Back to Top Notice of examination 28. The form required under subsection 66(2) of the Act is a notice of examination prepared and served personally on the debtor, or other person by the sheriff on behalf of the creditor using the information, with respect to time and place, provided by the deputy registrar or assistant deputy registrar. 102/99 s28 Back to Top Notice 29. (1) The notice of examination shall notify the person to whom it is addressed of the time and place of the examination and the party served shall have at least (5) days notice of the hearing date. (2) A judge may enlarge or abridge the notice period provided for in subsection (1). (3) The attendance fee of a person, other than a debtor, to be examined shall be the same as that paid to a witness under Schedule E of Rule 55 of the Rules of the Supreme Court, 1986 . 102/99 s29 Back to Top Manner of examination 30. An examination of a person shall be conducted in the same manner as in the case of an oral examination of an opposing party under the Rules of the Supreme Court, 1986 . 102/99 s30 Back to Top Default procedure 31. Unless otherwise required by these regulations, the procedure prescribed by Rule 30 of the Rules of the Supreme Court, 1986 applies to an examination under these regulations. 102/99 s31 Back to Top Oath and interpreter 32. (1) A person shall be sworn before he or she is examined. (2) Where the person being examined does not understand English, or is hearing impaired or speech impaired, the examining party shall provide a competent and independent interpreter who shall be sworn to accurately interpret the administration of the oath and the questions to be put to the person being examined and his or her answers. 102/99 s32 Back to Top Where person to be examined resides outside the province 33. (1) Where the person to be examined resides outside the province, the court shall give directions respecting (a) the place of examination; (b) the person before whom the examination is to be conducted; (c) the length of notice to be given; and (d) the appointment of an interpreter, if one is required. (2) Where the person to be examined resides outside the province is not a party, and is not to be examined as an officer, director or manager of a corporate party, the court shall fix the amount of attendance money to be paid. (3) Where the examination is conducted outside the province, the oath may be administered by the person before whom the examination is conducted or by a person authorized to take affidavits in the province in the place where the examination is conducted. 102/99 s33 Back to Top Production on examination 34. (1) The person to be examined shall bring to the examination and produce for inspection everything in his or her possession, custody or control which is not privileged, and which is specified in the notice of examination. (2) Where it is not practicable for the person who is to be examined to bring to the examination something which is required under subsection (1), he or she shall make it available for inspection by the examining party at some other mutually convenient time and place before the examination. (3) Where a person admits upon examination that the person has in his or her possession, custody or control something not previously disclosed which relates to the matters in question and which is not privileged, he or she shall produce it for inspection by the examining party (a) immediately, if the person has it with him or her; or (b) within 2 days, if the person does not have it with him or her, and the examination may be adjourned for that purpose. 102/99 s34 Back to Top Re-examination on an examination in aid of enforcement 35. On an examination, a person may be re-examined by his or her own counsel at the conclusion of the examination and the re-examination shall be proceeded with immediately after the examination. 102/99 s35 Back to Top Objections 36. (1) Where a person being examined refuses to answer a question, the deputy registrar or assistant deputy registrar shall record (a) the question; (b) the grounds for the refusal; and (c) a brief statement of counsel in support of the question. (2) A ruling with respect to the propriety of the que s tion may be made only by the court, to be obtained (a) by a referral to a judge for ruling as provided in subsection (3); or (b) on interlocutory application. (3) An examination may be adjourned at any time by consent of the parties present in order that a question may be referred immediately to a judge returnable on the following day for a ruling with respect to the propriety of the question. (4) The deputy registrar or assistant deputy registrar shall record the ruling and the examination shall be resumed. 102/99 s36 Back to Top Improprieties on examination 37. (1) An examination may be adjourned by the person being examined or by a party present or represented on the examination for the purpose of applying to the court for directions as to its continuation, or for an order terminating the examination or limiting its scope where (a) the right to examine is being abused by an excess of improper questions or obstructed by an excess of improper interruptions or objections; (b) the examination is being conducted in bad faith, or in an unreasonable manner so as to annoy, embarrass or oppress the person being examined; (c) the examination is excessive in length having regard to the nature of the proceeding; (d) many of the answers to the questions are evasive, unresponsive or unduly wordy; or (e) there has been a neglect or improper refusal to produce a relevant document in the possession, custody or control of the person being examined, which is not privileged, and which he or she was required to produce by the notice of examination served upon him or her. (2) On application under subsection (1), the court may order, the person whose improper conduct necessitated the application or the person who improperly brought the application to personally pay the costs of the application, any costs unnecessarily incurred and the costs of a continuation of the examination and the court may fix those costs or make another order as may be just. 102/99 s37 Back to Top Penalty for refusal or neglect 38. (1) Where a person refuses or neglects to attend or to remain in attendance for examination or refuses to be sworn, or to answer a proper question, or to produce a document which he or she is bound to produce, or to comply with an order under, or to fulfil an undertaking, the court may, (a) where an objection is held to be improper, order the person to re-attend at his or her own expense and answer that question and any proper questions arising from the answer; (b) order the person to produce a document, to re-attend at his or her own expense and to answer any proper questions arising from the document; (c) by warrant cause the person being examined to be apprehended anywhere in the province and brought before the court; and (d) make another order, as may be just. (2) Where a person is brought before the court under paragraph (1)(c), the person may be detained in custody or released on those terms that the court may order, and may be ordered to pay all costs arising out of the refusal or neglect. 102/99 s38 Back to Top Examination to be recorded 39. Unless the court orders, or the parties consent, otherwise, an examination in aid of enforcement shall be recorded in question and answer form and the Recording of Evidence Act , with necessary changes, shall apply. 102/99 s39 Back to Top Contempt order 40. (1) Where a debtor (a) neglects or refuses to attend for an examination; (b) attends and refuses to disclose his or her property or transactions; (c) fails to answer satisfactorily questions concerning his or her property or transactions; or (d) discloses that he or she concealed or disposed of property in order to defraud creditors, the creditor may apply under section 126 of the Act for a contempt order. (2) Where a person, other than a debtor, is liable to be examined in aid of enforcement and neglects or refuses to attend for examination or attends and refuses to disclose a matter in respect of which the person may be examined, the creditor may apply under section 126 of the Act for a contempt order. 102/99 s40 Back to Top Costs 41. A creditor entitled to enforce an order is entitled to the costs of an examination including the cost associated with issuing and service of the notice of examination. 102/99 s41 Back to Top Non-appearance at examination 42. A debtor who has been served with a notice of examination under section 66 of the Act and who is (a) hospitalized; or (b) incompetent at the time scheduled for the examination, shall not be penalized for failure to appear at that examination. 102/99 s42 Back to Top Financial questionnaire 43. Where a debtor who is a natural person completes a financial questionnaire under section 64 of the Act, he or she shall indicate on that questionnaire, his or her date of birth, street address, medical care insurance number and where held, his or her drivers licence number. 102/99 s43 PART IV SEIZURE AND SALE OF PROPERTY Back to Top Identification of property 44. Where a creditor gives instructions with respect to enforcement proceedings which include instructions to seize or sell personal property, those instructions shall be of sufficient detail to enable the sheriff to identify the property and its location. 102/99 s44 Back to Top Seizure 45. (1) Personal property is considered seized in accordance with paragraph 75(1)(b) of the Act when a notice prescribed by the sheriff and describing the property is affixed to the property in a reasonably secure manner so as to clearly indicate that seizure but not in a manner that might lead to damage to that property. (2) A notice of the terms of sale under subparagraph 81(g)(i) of the Act shall include the name of the creditor who is proposing to purchase the property, the notice of judgment registration number, the name of the debtor, the proposed price for the property, the proposed date of the sale and, shall have attached, copies of any written appraisals previously provided to the creditor intending to purchase the property. 102/99 s45 Back to Top Identification of property 46. Where a creditor gives instructions with respect to enforcement proceedings which include instructions to sell real property those instructions shall be of sufficient detail to enable the sheriff to identify the property and its location. 102/99 s46 PART V GARNISHMENT Back to Top Amendment of garnishee order 47. (1) Where a debtors (a) income; (b) number of dependants; (c) amount owed to creditors; (d) exemptions allowed under section 131 of the Act, change while a garnishee order is in force, or where (e) there has been an error in the estimation of an amount owed or in the calculation of exemptions; (f) there is an agreement for a change between the debtor and all creditors; and (g) there was a defect or irregularity in the previous order, the sheriff may, where appropriate, amend the garnishee order amount to reflect that change. (2) A person seeking to change the garnishee amount shall provide the sheriff with (a) instructions in writing; (b) an affidavit stating the facts that give rise to the request for the change and the grounds for belief in those facts; and (c) a copy of the original garnishee order. (3) A garnishee order may be renewed before that order expires and shall be effective in accordance with subsections 114(1) and (2) of the Act as if it were a new garnishee order issued on the expiry date of the garnishee order. (4) A garnishee order shall be renewed under subsection (3) upon application of the creditor to the sheriff in the required form. (5) In accordance with subsection 40(2) of the Act and paragraph 114(3)(e) of the Act, the renewal of a garnishee order under subsection (3) shall not extend beyond a date which is 10 years after the date of the original judgment. 102/99 s47 PART VI EXEMPTIONS Back to Top Exemptions 48. (1) The maximum number and value of property exempt from enforcement proceedings under section 131 of the Act shall be for (a) clothing of the debtor and his or her dependants, a value totalling $4,000; (b) appliances and household furnishings, a value totalling $4,000; (c) motor vehicles of the debtor, a value totalling $2,000; (d) items of a sentimental value to the debtor, a value totalling $500; (e) fuel or heating as a necessity for the debtor and his or her dependants; (f) the debtors equity in his or her principal residence, $10,000; and (g) personal property use for income earning as referred to in paragraph 131(i) of the Act, a total of $10,000. (2) For the purpose of paragraph (1)(f), "principal residence" has the same meaning as in subsection 131(2) of the Act. 102/99 s48 Back to Top Income exemption 49. (1) The net income of a person who is a debtor for a month that is exempt from enforcement proceedings shall be (a) in the case of a person supporting a spouse or cohabiting partner, the sum of $1,019; (b) in the case of a person supporting a spouse or cohabiting partner and one dependant, the sum of $1,059; (c) in the case of a person supporting a spouse or cohabiting partner and more than one dependant, the sum of $1,059 plus $47 for each dependant in excess of one; (d) in the case of a person supporting one or more dependants, the sum of $963 plus $47 for each dependant in excess of one; and (e) in the case of another person, the sum of $649. (2) Where a debtors number of dependants changes, the sheriff may amend an income exemption certificate in accordance with subsection (1) to reflect that change. (3) For the purpose of the Act and the regulations the terms "net income" and "net pay" of a person who is a debtor are the total employment earnings of that person less the following deductions: (a) income tax deducted from those earnings under the Income Tax Act ( Canada ); (b) employment insurance deducted from those earnings under the Employment Insurance Act ( Canada ); (c) Canada pension plan deducted under the Canada Pension Plan Act ( Canada ); (d) pension plan amounts deducted under the Pension Benefits Act, 1996 or the Pension Benefits Standards Act, 1985 ( Canada ); and (e) professional membership and trade union dues considered deductible under the Income Tax Act ( Canada ). (4) For the purpose of this section "employment earnings" has the same meaning as defined in paragraph 110(1)(b) of the Act. 102/99 s49 ; 90/01 s2 PART VII MISCELLANEOUS PROVISIONS Back to Top Records 50. (1) The registry may contain records which refer to charges, liens and encumbrances known to be outstanding against a debtors property, notwithstanding that those charges, liens and encumbrances arise under another Act or law and are not governed by this Act. (2) Information contained in the registry under subsection (1) shall be made available to the public as determined by the sheriff. 102/99 s50 Back to Top Required form 51. (1) The information required to create a notice of judgment, amend a notice of judgment, create a notice of attachment and amend a notice of attachment shall be in the required form. (2) Where information required under the Act and the regulations is to be in or entered on a required form, that information shall be entered and provided in the manner required by that form and where that information is not entered and provided in that manner, the sheriff may determine that the form and the information on it is not to be filed in the registry until it is completed in a manner that is satisfactory to the sheriff. 102/99 s51 Back to Top Service of documents 52. (1) Where the sheriff or another person is required under the Act to serve a document on a person, personal service may be made by giving the document to the person to be served or by leaving a copy for him or her at that persons most usual place of residence with a resident of that same place who is apparently 16 years of age or older. (2) Personal service upon a corporation may be made by giving the document to the president, chairperson, mayor or other chief officer of the corporation or to the manager, secretary, city or town manager or clerk or other similar officer or in the manner provided under the Corporations Act . (3) Personal service upon a partnership or an enterprise may be made by giving the document to one or more of the partners, or to a person at the principal place of business of the partnership or enterprise who appears to manage or control the partnership business or enterprise at that place. (4) Personal service under subsections (1), (2) and (3) may be proved by a statement under oath, written or oral by the person who made the service. (5) A person shall not serve a document by using force, intimidation or threats. (6) Where a document is not required to be served by personal service, the document may be served by means of a telecopier (a) on the solicitor of the person being served or that solicitors agent; and (b) in the case of service on a person other than under paragraph (a), at a telecopier situated in a residence or a place of business located in the province. (7) In order for a document to be served by means of a telecopier, the document shall be sent by telecopier and (a) in the case of service on the solicitor of the person being served or on that solicitors agent, be received and printed by a receiving telecopier that is situated at the office of the solicitor or the solicitors agent; and (b) in the case of service on a person other than under paragraph (a), be received and printed by a receiving telecopier that is situated in a residence or a place of business located in the province. (8) A telecopier may only be used under this section if the telephone number for the telecopier at which service is to take place has a 7 digit number that appears with the word "fax" or with a reference to a telecopier (a) in, or attached to; or (b) on a letter enclosing, a document or notice under the Act or regulations, by, from or on behalf of the person to be served or that persons solicitor or his or her agent. (9) Where the sheriff is required to serve a notice or other document under the Act, and the method is other than by personal service, the sheriff may serve that notice or other document by ordinary mail and that service is considered to have been made 7 days after the date on which it was mailed to the last known address of the person or enterprise being served. (10) For the purpose of subsection 75(3) of the Act, 3 attempts at personal service are sufficient to establish an inability to serve enforcement documents. 102/99 s52 Back to Top Expenses and costs 53. (1) In accordance with subsection 116(3) of the Act a garnishee is entitled to not more than $25 when a garnishee order is first placed with the garnishee. (2) An amount which may be added to the enforcement debt under subparagraph 22(a)(iv) of the Act shall not be added to that enforcement debt without prior written approval of the sheriff or his or her deputy and the sheriff or his or her deputy may determine the validity of that amount and may accept or reject a proposed amount or a portion of it. (3) Expenses and costs referred to in paragraphs 154(1)(c) and 156(4)(a) of the Act may include (a) fees and expenses paid by the creditor to the sheriff; (b) fees and expenses paid by the creditor to a person to serve a document required to be served under this Act; (c) towing charges; (d) storage fees; (e) advertising costs; (f) trucking costs; (g) auctioneers costs and fees; (h) searching fees relating to (i) motor vehicle registration, (ii) the registration of a security interest in personal property, and (iii) the registration of land deeds in the province; (i) appraisal costs; and (j) other fees, expenses and costs, which are necessary to produce the distributable fund and the sheriff may determine if those expenses and costs are reasonable and necessary to produce that fund. (4) Expenses and costs under paragraph 154(1)(c) of the Act shall not include solicitor fees except as ordered by the court. (5) Notwithstanding subsection (4), where the sheriff incurs legal or other expenses or costs because of a review of an objection under section 159 of the Act, and that objection is, in accordance with subsection 159(2) of the Act found not to be effective, those expenses or costs may be added to the outstanding amount of the enforcement debt. (6) Where a creditor or another person is entitled to be paid an amount by way of a distribution under the Act and the creditor or other person owes fees to the sheriff in respect of a service previously provided to him or her by the sheriff, the sheriff may deduct from the amount to which the person is entitled an amount equal to the amount owed. 102/99 s53 ; 90/01 s3 Back to Top Two dollar minimum 54. Where a debtor or another person is entitled to be paid an amount by way of a distribution according to Part XI of the Act, the sheriff shall not pay money to that debtor or other person where the amount to be paid is $2 or less and the amount shall be paid into the Consolidated Revenue Fund. 102/99 s54 Back to Top Repeal 55. The Judgment Enforcement Regulations , Newfoundland Regulation 67/97, are repealed. 102/99 s55 Back to Top Commencement 56. These regulations come into force on December 13, 1999 . 102/99 s56 ©Earl G. Tucker, Queen's Printer