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This version was current from June 12, 2008 to December 2, 2011.
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C.C.S.M. c. E160
The Executions Act
|Table of Contents|
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act,
"family" includes a person who, not being married to a debtor or a judgment debtor, is cohabiting with him or her in a conjugal relationship of some permanence; (« famille »)
"judgment" includes a decree, rule or order, whether of a court or a judge, for payment of a sum of money; (« jugement »)
"judgment creditor" means a person, whether plaintiff or defendant, who has recovered a judgment against another, and also a person entitled to enforce a judgment, and includes a corporation, foreign or domestic; (« créancier judiciaire »)
"judgment debtor" means a person, whether plaintiff or defendant, against whom a judgment has been recovered, and includes a corporation, foreign or domestic; (« débiteur judiciaire »)
"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)
"sheriff" means an individual appointed under The Civil Service Act to act as a sheriff. (« shérif »)
For the purposes of this Act, while they are cohabiting, persons who have registered their common-law relationship under section 13.1 of The Vital Statistics Act are deemed to be cohabiting in a conjugal relationship of some permanence.
A sheriff who receives a writ of execution, order of attachment or any similar document shall immediately endorse on it the date and time and the judicial centre at which it is received.
A writ of execution ceases to have any force upon the expiration of two years from the date of issue or renewal thereof, as the case may be, unless it is renewed or further renewed before the expiration of the two years.
All persons in the employment of a judgment debtor or defendant, at the time of a seizure under a writ of execution or order of attachment against the goods and chattels or other property of the judgment debtor or defendant, or within one month before that time, may file in the hands of the sheriff their claims for wages or salary, attested upon oath in the form in Schedule A or in any other form to the like effect, before any person authorized by The Manitoba Evidence Act to receive affidavits for use in Manitoba; and the persons so claiming are then entitled to be paid out of the money seized or realized from the seizure the wages or salary due to them respectively by the judgment debtor or defendant, not exceeding three months' wages or salary, in priority to the claims of the other creditors of the execution debtor or defendant, such wages or salary to be for arrears only and not for any unearned portion.
Section 3 applies to wages or salary, whether the employment in respect of which the same may be payable is by the hour or other period of time.
Except as hereinafter mentioned or as otherwise provided by another Act of the legislature, every writ of execution against goods and chattels, at and from the time of delivery to the sheriff binds all the goods and chattels, or any interest in all the goods and chattels, of the judgment debtor within the province and takes priority over any security agreement, as defined in The Personal Property Security Act, bill of sale, or assignment for the benefit of all or any of the creditors of the judgment debtor, made by the judgment debtor after the receipt by the sheriff of the writ of execution or which, by virtue of The Personal Property Security Act, has not taken effect prior to that receipt as against the creditor interested under the execution; but it does not take priority over a bona fide sale by the judgment debtor, followed by an actual and continued change of possession, of any of his or her goods and chattels, without actual notice to the purchaser that the writ is in the hands of the sheriff.
Notwithstanding subsection (1), the judgment creditor shall be entitled to exclude from any writ of execution any goods and chattels or any interest therein of the judgment debtor, and the writ of execution shall not bind those goods and chattels or interests therein so excluded.
Renumbered as section 2.1.
On any writ of execution against goods and chattels, the sheriff may seize and sell the interest or equity of redemption of the party against whom the writ has issued, in any goods and chattels; and the sale shall be held to convey whatever interest the mortgagor had in those goods and chattels at the time of the seizure.
The sheriff shall seize and take any money and bank notes of the judgment debtor against whom the writ is issued, and any mortgages of real or personal estate, cheques, bills of exchange, bonds, promissory notes or other securities for money, including credit card receipts and similar instruments, of the debtor or in which the debtor has an interest.
For the purpose of this Act, the interest of a mortgagee of real property is personal property and is subject to seizure and execution.
In addition to the remedy given for realizing on mortgages and securities by the Act of the Parliament of the United Kingdom passed in the first and second years of the reign of Her late Majesty Queen Victoria, chapter 110, and amending Acts, where it appears that a suit on such a mortgage or security under that Act might be of no benefit by reason of the insolvency of the person liable to pay the money payable under the mortgage or other security, or where, for the same or any other reason, the suit might be more onerous than beneficial to the judgment creditor in the suit, the sheriff, shall sell the mortgages or other securities by public auction in the same manner, and after such advertisement thereof, as is required for the sale of any goods or chattels seized under any writ against goods issued out of the court, and shall apply the proceeds of the sale in the same manner as on a sale of goods and chattels.
The purchaser of any mortgage or other security as aforesaid, by the sale to him, becomes the owner of the interest of the judgment debtor in the mortgage or security at the time of its seizure, and, in the case of a mortgage on lands, by the sale to him, acquires the interest of the mortgagee in the lands comprised in the mortgage at the time of the seizure, and is entitled to the benefit of all the covenants and powers contained in the mortgage or other security, and to use all the remedies, either by suit in his own name or other proceeding, allowed or given by the mortgage or security, or by any law or statute, for the collection of the debt secured by the mortgage or security or for the sale of the lands or goods covered by the mortgage or security; but no warranty is created by the sale and conveyance by the sheriff, not even that the debt is due.
The purchaser of any such mortgage from the sheriff is bound to register the assignment thereof in the proper registry office or land titles office.
This section does not apply to the interest of a judgment debtor in a security or security entitlement.
For the purpose of subsection (6), "security" and "security entitlement" have the same meanings as in The Securities Transfer Act.
In this section and sections 9 and 9.1, "endorsement", "entitlement order", "instruction", "issuer", "securities intermediary", "security" and "security entitlement" have the same meanings as in The Securities Transfer Act.
The interest of a judgment debtor in a security or security entitlement may be seized by a sheriff in accordance with sections 47 to 51 of The Securities Transfer Act.
If a seizure under subsection (2) is by notice to an issuer or securities intermediary, the seizure becomes effective when the issuer or securities intermediary has had a reasonable opportunity to act on the seizure, having regard to the time and manner of receipt of the notice.
If a judgment debtor's interest in a security or security entitlement is seized by a sheriff, the sheriff is deemed to be the appropriate person under The Securities Transfer Act for the purposes of dealing with or disposing of the seized property, and, for the duration of the seizure, the judgment debtor is not the appropriate person under that Act for the purposes of dealing with or disposing of the seized property.
Upon seizure of a judgment debtor's interest in a security or security entitlement, the sheriff may
(a) do anything that would otherwise have to be done by the judgment debtor; or
(b) execute or endorse any document that would otherwise have to be executed or endorsed by the judgment debtor.
If the sheriff makes or originates an endorsement, instruction or entitlement order as the appropriate person under subsection (1), the sheriff must provide the issuer or securities intermediary with a certificate of the sheriff stating that the sheriff has the authority under this Act to make that endorsement, instruction or entitlement order and any subsequent endorsements, instructions and entitlement orders in respect of the same execution debt.
In this section, "seized security" means the interest of a judgment debtor in a security that is seized.
This section applies if the interest of a judgment debtor in a security is seized by a sheriff and the jurisdiction that governs the validity of the security under section 44 of The Securities Transfer Act is Manitoba.
Subject to subsection (5), if the transfer of the seized security is restricted by the terms of the security, by a restriction imposed by the issuer or by a unanimous shareholder agreement governed by the law of Manitoba, the sheriff is bound by the restriction.
Subject to subsection (5), if a person would otherwise be entitled to acquire or redeem the seized security for a predetermined price or at a price fixed by reference to a predetermined formula, the person is entitled to acquire or redeem the security.
On application by the sheriff or any interested person, if the Court of Queen's Bench considers that a restriction on the transfer of the seized security or a person's entitlement to acquire or redeem the seized security was made with intent to defeat, hinder, delay or defraud creditors or others, the court may make any order that the court considers appropriate regarding the seized security, including an order doing one or more of the following:
(a) directing the method or terms of sale of the seized security, or the method of realizing the value of the seized security other than through sale;
(b) directing the issuer to pay dividends, distributions or interest to the sheriff even though the sheriff is not the registered owner of the security;
(c) directing the issuer to register the transfer of the seized security to a person despite a restriction on the transfer of the security described in subsection (3) or the entitlement of another person to acquire or redeem the security described in subsection (4);
(d) directing that all or part of a unanimous shareholder agreement does not apply to a person who acquires or takes a seized security from the sheriff;
(e) directing that the issuer be dissolved and its proceeds disposed of according to law.
The sheriff may bring an application under section 234 of The Corporations Act as if he or she were a shareholder under that section, whether or not an application is brought under subsection (5) of this section.
An application under subsection (5) may be joined with an application for an oppression remedy under section 234 of The Corporations Act.
Unless otherwise ordered by the court under subsection (5), a person who acquires or takes a seized security from the sheriff is deemed to be a party to any unanimous shareholder agreement regarding the management of the business and affairs of the issuer or the exercise of voting rights attached to the seized security to which the judgment debtor was a party at the time of the seizure, if the unanimous shareholder agreement contains provisions intended to preclude the judgment debtor from transferring the security except to a person who agrees to be a party to that unanimous shareholder agreement.
Despite subsection (8) and any provision in a unanimous shareholder agreement to the contrary, a person who acquires or takes a seized security from the sheriff is not liable to make any financial contribution to the corporation or provide any guarantee or indemnity of the corporation's debts or obligations.
A sheriff who seizes goods or chattels or other property shall, without request, deliver to the owner or his agent or servant, or leave upon the premises where the seizure is made, and before they are removed therefrom, an inventory of the property and a notice to the judgment debtor in the form of Schedule B or in a form to the like effect.
No sheriff shall sell or dispose of property that is seized under a writ of execution until he or she has, previously thereto, given at least eight days' public notice in writing of the time and place of sale in at least three public places in the municipality where the property has been taken in execution.
Where a sheriff who seizes goods or chattels under a writ of execution deems it practical to do so, he may, instead of removing the goods or chattels from the premises and pending further instructions from the judgment creditor, in writing appoint the judgment debtor or another responsible person on the premises to retain or take custody of the goods or chattels as the agent of the sheriff and to ensure that the goods or chattels are preserved and are not removed from the premises.
In every case where property seized by a sheriff under execution remain unsold in his hands for want of buyers, he shall state and specify, in his return of "property on hand", the time and place when and where the property was offered for sale by him, and the names of at least three persons who were present at the time of the attempted sale, if so many were present, but, if so many were not present, then the names of those who were present, if any, and that there were no others; and if no person was present then he shall state that fact.
Sections 19 to 22 do not apply in cases of writs of execution against a municipality or a school district, school division or school area.
Subject to sections 19.1 and 19.3, in respect of writs of execution in the hands of a sheriff, priority of claim upon what is seized or realized under such writs shall not be allowed.
Subject to section 3, a writ of execution that has been issued as a result of proceedings taken by a designated officer under Part VI of The Family Maintenance Act has priority of claim over what is seized or realized under any other writ of execution.
If a writ of execution is issued as a result of proceedings taken under Part VI of The Family Maintenance Act, a designated officer may at any time file with the sheriff a statutory declaration stating the amount currently owing under the order for which the writ of execution was issued, and the writ of execution is deemed to be amended to specify the amount owing in accordance with the statutory declaration.
If a sheriff has in his or her possession or control money to be paid out under a writ of execution that has been issued as a result of proceedings taken by a designated officer under Part VI of The Family Maintenance Act, the sheriff shall immediately give notice to the designated officer of the opportunity to file a statutory declaration under subsection (2).
In section 19.3,
"fine" means a monetary penalty imposed on a person found guilty or convicted of a contravention of
(a) an Act or regulation of Manitoba, or
(b) the Criminal Code (Canada),
(c) any court costs assessed against the person,
(c.1) a justice services surcharge imposed under The Summary Convictions Act,
(d) a victim surcharge imposed under the Criminal Code (Canada), and
(e) a surcharge imposed under The Victims' Bill of Rights,
but does not include a restitution order; (« amende »)
"forfeited recognizance order" means an order requiring a person who has failed to comply with a condition of a recognizance, and all sureties of that person, to pay money to the government; (« ordonnance de confiscation d'engagement »)
"restitution order" means an order made against a person found guilty or convicted of a contravention of
(a) an Act or regulation of Manitoba, or
(b) the Criminal Code (Canada),
requiring that person to pay money to an individual or to a corporation, organization or other entity. (« ordonnance de dédommagement »)
Subject to sections 3 and 19.1, a writ of execution that has been issued to enforce a forfeited recognizance order, a restitution order or an order imposing a fine has priority of claim over what is seized or realized under any other writ of execution.
Where a sheriff seizes or realizes money under a writ of execution, he shall forthwith give notice thereof in The Manitoba Gazette by a short notice which shall set forth the name and residence of the judgment debtor, the gross amount of money seized or realized, the amount of costs of the sheriff to be deducted therefrom and the total amount of the unsatisfied executions in force in the hands of the sheriff against the execution debtor.
Where under subsection (1) a sheriff under a writ of execution receives periodic payments of less than $50. each, the sheriff need not give notice thereof in the Manitoba Gazette as required under that subsection until the periodic payments amount to at least $50. unless
(a) the payments, although totalling less than $50., represent the balance owing under the writ of execution; or
(b) there is no reasonable prospect that the judgment debtor will make further payments.
The Queen's Printer shall insert the notice in the Manitoba Gazette on payment of the fee prescribed therefor in accordance with The Public Printing Act.
The sheriff shall hold the money for a period of 14 days from the publication of the notice, and thereupon shall distribute it and any other money later seized or realized under the same or any other writ of execution against the same judgment debtor (as to which no notice need be published)
(a) by paying the costs of all the execution creditors as preferential claims pro rata; and
(b) subject to sections 19.1 and 19.3, by distributing any balance among the remaining execution creditors in proportion to the several respective claims of those creditors, not including costs.
A sheriff who fails or neglects to give notice as required under subsection 20(1) or (2) for a period exceeding one month from the time when he is required to give the notice, is liable to attachment, unless he has, within 14 days from the time when he is required to give notice, given a similar notice in respect of the same judgment debtor.
Where a person to whom the same debtor is justly liable for a cause of action that comes within the classes of cases mentioned in Rule 19.01(1)(a) (a debt or liquidated demand in money) of The Queen's Bench Rules is unable, for any reason that he cannot by due diligence overcome, to obtain judgment against the defendant, either in the Court of Queen's Bench or in the Provincial Court (Family Division), a judge of the court from which the writ of execution was issued may order the distribution by the sheriff to be wholly or partially delayed, as may seem just, for a further period.
The judge may, if he sees fit, order part of the money to be distributed and part thereof to be held for a further period, to the end that the persons entitled may receive their rateable shares as soon as possible.
Except as provided by The Family Maintenance Act or any other Act, the following personal estate is declared free from seizure by all writs of execution issued by any court in the province, namely:
(a) the furniture and household furnishings and appliances of the judgment debtor reasonably necessary for one household but not exceeding in value the aggregate sum of $4,500.;
(b) the necessary and ordinary clothing of the judgment debtor and the members of his family;
(c) the food and fuel necessary for the judgment debtor and the members of his family for a period of six months, or the cash equivalent thereof;
(d) in the case of a judgment debtor who is a farmer, all animals reasonably necessary for the proper and efficient conduct of his agricultural operations for the next ensuing 12 months;
(e) in the case of a judgment debtor who is a farmer,
(i) all farm machinery, dairy utensils and farm equipment reasonably necessary for the proper and efficient conduct of his agricultural operations for the next ensuing 12 months, and
(ii) one motor vehicle, if required for the purposes of his agricultural operations;
(f) the tools, implements, professional books and other necessaries, not exceeding in value the aggregate sum of $7,500., used by the judgment debtor in the practice of his trade, occupation or profession or to carry on his business and, where the judgment debtor requires the use of a motor vehicle in the course of or for the purposes of his employment, trade, occupation, profession or business or for transportation to and from his place of employment or business, one motor vehicle not exceeding in value the sum of $3,000.;
(g) the articles and furniture necessary to the performance of religious services;
(h) the seed sufficient to seed all the land of the judgment debtor under cultivation;
(i) the health aids, including but without limiting the generality of the foregoing a wheelchair, an air-conditioner, an elevator, a hearing aid, eye glasses and prosthetic or orthopedic equipment, that are reasonably necessary for the health or mobility of the judgment debtor or a member of his family; and
(j) the chattel property of The City of Winnipeg or of any municipality, local government district, school district, school division or school area in the province.
Where under subsection (1) a chattel is exempt from seizure up to a specified amount in value but in the opinion of the sheriff exceeds in value that amount together with all relevant costs, the sheriff may, in the absence of other available chattels, seize and sell the chattel to all intents and purposes as if it were not exempt, but any amount realized on the sale of the chattel shall be paid and applied as follows:
(a) firstly to the judgment debtor in an amount not exceeding the amount of the exemption;
(b) secondly to the judgment creditor in satisfaction of the amount of the judgment plus costs; and
(c) thirdly, if there is any surplus remaining, to the judgment debtor.
Where a person dies and is survived by a dependant, chattels which at the time of the person's death were exempt from seizure by the person's creditors continue to be so exempt while in the possession of the dependant.
Any moneys that become payable by reason of loss by fire under a policy of fire insurance in respect of any property that is, at the time of the loss, exempt under this Act or The Judgments Act from seizure, are exempt from seizure under execution or attachment or any other legal process.
Subject to subsection (2), the property and interest of an annuitant, or of a person interested or entitled in or to a contract for an annuity, or an annuity itself, under the Government Annuities Act (Canada), or in or to any moneys payable or paid under or by reason of any such contract or annuity, is exempt from seizure, levy, or attachment, by or under the process of any court, and is not affected by any trust, charge, or lien.
Nothing in this Act is intended to conflict, or be inconsistent, with any enactment or provision of the Government Annuities Act (Canada).
A partnership firm cannot claim several exemptions for each partner, but only one exemption for the firm, out of the partnership property.
The exemptions from seizure provided in this Act do not apply in the case of a judgment debtor that is a corporation, unless the corporation is engaged in farming.
R.S.M. 1987, c. E160, s. 39.
The exemptions in this Act mentioned cannot be claimed by or on behalf of a debtor who is in the act of removing with his family from the province or is about to do so, or who has absconded, taking his family with him.
The judgment debtor or the persons referred to in section 24, as the case may be, is or are entitled to a choice from the greater quantity of the same kind of property or articles that are hereby exempted from seizure.
Nothing herein exempts from seizure any personal property mentioned in clauses 23(1)(a), (c), (e), (f), (g), (h), (i) and (j), the purchase price of which is the subject of the judgment proceeded upon either by way of execution or attachment.
Nothing herein exempts from seizure any goods or chattels purchased for the purpose of defeating claims of creditors.
No sale of any farm or garden crops, whether grain or roots, shall take place until after they have been harvested or taken and removed from the ground.
A judgment debtor whose grain is seized under a writ of execution may direct as to whether the grain shall be sold through the Canadian Wheat Board or by any private sale authorized under the law.
Where a mechanic, artisan, machinist, builder, contractor, or other person, has furnished or procured any materials for use in the construction, alteration, or repair, of a building or erection, the materials are not subject to execution or other process to enforce any debt, other than for the purchase thereof, due by the person furnishing or procuring the materials, and whether they are or are not, in whole or in part, worked into or made part of the building or erection.
No sheriff charged with the execution of a writ of execution issued out of any court in Manitoba shall seize or take in execution any goods, chattels or other property that is declared by this Act to be free from seizure under writs of execution.
Every agreement to waive or abandon an exemption from seizure or a benefit, right, or privilege, of exemption from seizure under this Act and every arrangement, contract, or bargain, verbal or written, under seal or otherwise, made or entered into, with or without valuable consideration, whereby an attempt is made to prevent any person from claiming the benefit, right, or privilege, of exemption under this Act, is void.
Notwithstanding anything herein to the contrary, where a mobile home seized under a writ of execution is ordinarily used by the judgment debtor as his permanent residence, no proceedings to sell the mobile home under the writ shall be commenced until the expiration of one year from the date of seizure.
Where a dispute arises with respect to a seizure or proposed seizure of property under a writ of execution,
(a) as to whether or not the property is exempt from seizure under this Act; or
(b) as to whether or not other property already seized or available for seizure under the writ of execution is of sufficient value to cover the amount owing from the judgment debtor to the judgment creditor, in so far as that writ of execution is concerned, together with costs; or
(c) as to whether or not the property is for any other reason free from seizure under this Act; or
(d) as to any other matter relating to the seizure or proposed seizure;
the judgment debtor or judgment creditor, or the sheriff making the seizure, may apply in a summary way to a judge of the court out of which the writ of execution was issued for an order disposing of the dispute.
A judge to whom an application is made under subsection (1) may, after a hearing upon notice to all parties to the dispute, make an order
(a) resolving the issues in the dispute; or
(b) directing the issues in the dispute to be tried; or
(c) giving such other directions with respect to the dispute as he deems requisite.
No sheriff who is instructed to make the seizure under a writ of execution is bound to make the seizure unless and until he is furnished with such indemnification as he deems reasonable in respect of any claim for damages that may arise against him or any of his officers as a result of the seizure.
NOTE: Section 39, which repealed section 28 and substituted a new section 28, was proclaimed in force June 1, 1996. The new section 28 now appears in this Act.
CIVIL ENFORCEMENT AGENCIES
In this Part,
"agency" means a civil enforcement agency authorized under an agreement to carry out civil enforcement proceedings; (« organisme »)
"agreement" means an agreement made under section 41; (« accord »)
"bailiff" means a civil enforcement bailiff appointed under subsection 42(1); (« huissier »)
"civil enforcement proceeding" means a seizure or recovery of property that is authorized under an Act or an order of a court, and includes
(a) a seizure under a writ of possession, writ of execution, writ of delivery, writ of seizure and sale, order of attachment, warrant of execution or interim order for the recovery of possession of property, and
(b) the sale of seized property and the distribution of the proceeds of sale. (« procédure d'exécution civile »)
A person designated by the minister may, on behalf of the Crown, enter into an agreement under which a person is authorized to operate an agency for the purpose of carrying out civil enforcement proceedings.
An agreement may contain provisions
(a) setting out the terms and conditions under which the agency operates;
(b) governing the suspension or cancellation of the agreement or any of the agency's operations;
(c) governing the rights and powers of the sheriff respecting access to and the search of any locations and premises of the agency, and the removal of any property from that location or those premises; and
(d) governing any other matter respecting the operations of the agency or the authorization to operate it.
A sheriff may appoint an individual as a civil enforcement bailiff to carry out civil enforcement proceedings, subject to any restrictions or conditions contained in the appointment.
An agency shall use only civil enforcement bailiffs to carry out civil enforcement proceedings.
A bailiff who carries out a civil enforcement proceeding shall do so in accordance with
(a) the agreement that governs the agency employing the bailiff;
(b) any restriction or condition on the appointment of the bailiff;
(c) the document authorizing the proceeding; and
(d) this Act and the regulations under this Act, and any other Act that applies to the proceeding or to a sheriff carrying out such a proceeding.
Despite any requirement in an enactment or document that a civil enforcement proceeding be carried out by a sheriff, an agreement may authorize an agency to carry out the proceeding, and the agency may carry it out in accordance with this Part.
Neither an agency nor a bailiff is an agent or employee of the Crown or a sheriff.
Neither the Crown nor a sheriff is liable for anything done or omitted to be done by an agency or bailiff, and no action may be brought against the Crown or a sheriff in respect of loss, damage or injury alleged to have been caused by an act or omission of an agency or bailiff.
The Lieutenant Governor in Council may make regulations respecting the following:
(a) agreements entered into under section 41;
(b) the appointments and the suspensions and revocations of appointments of bailiffs;
(c) the qualifications of agencies and bailiffs;
(d) the carrying out of the duties and functions of agencies and bailiffs;
(e) fees and expenses that may be charged or received by agencies, which may include the application of fees prescribed under The Law Fees and Probate Charge Act;
(f) the records, reports and information to be kept, maintained, held in confidence and released by agencies and bailiffs;
(g) reports to be filed in a court in respect of civil enforcement proceedings authorized by the court;
(h) the handling, holding and distribution of property and funds by agencies and bailiffs;
(h.1) the seizure, holding and handling of money, securities and instruments referred to in subsection 7(1);
(i) the supervision and inspection of agencies and bailiffs and their operations;
(j) the security and indemnification to be provided to agencies and bailiffs;
(k) defining words or phrases used in this Act or in a regulation for which no definition is given in this Act;
(l) enlarging or restricting the meaning of a word or expression used in this Act;
(m) any other matter the Lieutenant Governor in Council considers necessary or advisable to carry out the intent and purpose of this Part.