|This is an unofficial archived version of The Executions Act|
as enacted by SM 1987-88, c. 9 on July 17, 1987.
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R.S.M. 1987, 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,
"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")
A sheriff or a bailiff of the Provincial Court (Family Division) shall, immediately on receipt of an execution, endorse on it the actual time when it was so received.
All persons in the employment of a judgment debtor or defendant, at the time of a seizure under a writ of execution or attachment against the goods and chattels of the judgment debtor or defendant, or within one month before that time, may file in the hands of the sheriff or bailiff, as the case may be, 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 levied from the property of any such debtor 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 or bailiff 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 to any chattel mortgage, bill of sale, or assignment for the benefit of all or any of the creditors of the judgment debtor, executed by him after the receipt by the sheriff or the bailiff 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 to a bona fide sale by the judgment debtor, followed by an actual and continued change of possession, of any of his goods and chattels, without actual notice to the purchaser that the writ is in the hands of the sheriff or bailiff.
Notwithstanding subsection (1), the judgment creditor shall be entitled to exclude from any writ of execution directed to the sheriff or bailiff 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.
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.
On any writ of execution against goods and chattels, the sheriff, bailiff or other officer to whom the writ is directed, or who may have the execution of the writ, 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.
Any sheriff or bailiff to whom a writ of execution is directed, or who may have the execution of the writ, shall seize and take any mortgages of real or personal estate, cheques, bills of exchange, bonds, promissory notes, or other securities for money of the judgment debtor against whom the writ issued, or in which he has any 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 or bailiff, 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 or bailiff, not even that the debt is due.
The purchaser of any such mortgage from the sheriff or bailiff, is bound to register the assignment thereof in the proper registry office or land titles office.
All shares and dividends of stockholders in any incorporated bank or other company in Manitoba having transferable joint stock shall be held, considered, and adjudged, to be personal property, and are liable as such to bona fide creditors for debts, and may be attached, seized, and sold, under writs of execution issued out of any court in like manner as other personal property may be sold under execution.
If a sheriff or a bailiff seizes the shares of an execution debtor in a corporation which has not made a distribution to the public, he shall first offer the shares for sale to the shareholders of the corporation other than the execution debtor in accordance with the Act of incorporation or articles or by-laws of that corporation or in accordance with the terms of any agreement between the execution debtor and the other shareholders and if none of them will purchase the shares in accordance with the Act of incorporation or articles or by-laws of the corporation, or in accordance with the terms of such an agreement, as the case may be, then, notwithstanding The Corporations Act or the Act of incorporation, articles or by-laws of that corporation or notwithstanding the terms of any agreement between the execution debtor and the other shareholders, the sheriff or bailiff, as the case may be, may offer the shares for sale to the public generally including all other shareholders of that corporation and sell and convey them to the highest bidder.
The sheriff or bailiff, to whom any writ of execution as aforesaid is addressed, on being informed on behalf of the judgment creditor that the judgment debtor has stock in any such incorporated bank or incorporated company and on being required to seize the stock, shall forthwith serve a copy of the writ on the bank or company, with a notice that all the shares that the defendant has in the stock of the bank or company are seized accordingly.
From the time of the service no transfer of the stock by the defendant is valid, unless and until the seizure has been discharged.
Every such seizure, and any sale made under it, includes all dividends, premiums, bonuses, or other pecuniary profits, upon the shares seized, and they shall not, after such a notice as aforesaid, be paid by the bank or company to any party except the party to whom the shares have been sold by the sheriff or bailiff, unless and until the seizure is discharged, on pain of paying them twice.
Where the bank or company has more than one place where service of process may be legally made upon it, and there is a place where transfers of stock may be notified to, and entered by, the bank or company so as to be valid as regards the bank or company, or where any dividends or profits as aforesaid or stock may be paid, other than the place where service of the notice has been made, the notice does not affect any transfer or payment of dividends or profits duly made and entered at any such other place, so as to subject the bank or company to pay twice or to affect the rights of any bona fide purchaser, until after the expiration of a period from the time of service sufficient for the transmission of notice of the service by post from the place where it has been made to that other place; and the bank or company shall transmit the notice by post to that other place.
The shares in the stock of any such bank or company shall be held to be personal property found by the sheriff or bailiff, at the place where notice of the seizure thereof is served as aforesaid.
Wherever any such share is sold under a writ of execution, the sheriff by whom the writ has been executed shall, within 10 days after the sale, serve upon the bank or company, at some place where service of process upon the bank or company may be made, an attested copy of the writ of execution, with his certificate endorsed thereon certifying to whom the sale of the share has been made by him and the person who has purchased it.
The person so purchasing the share is thereafter a holder of the share and has the same rights, and is under the same obligations, as if he had purchased the share from the proprietor thereof in such form as may be by law or by by-law provided for the transfer of stock in the bank or company; and the proper officer of the bank or company shall enter the sale as a transfer in the manner by law provided.
Nothing in this Act impairs the effect of any remedy that the judgment creditor might without this Act have had against any shares of such stock by attachment or otherwise; but, on the contrary, sections 10 to 13 apply to such a remedy in so far as they can be applied thereto.
All corporations established for the purpose of trade or profit, or for the construction of any work, or for any purpose from which revenue is intended to be derived, shall be deemed incorporated companies for the purpose of sections 8 to 14, although they are not called companies in the Act or in the charter incorporating them.
Where goods or chattels are seized in execution under a writ issued to a sheriff or bailiff, he or his deputy or other officer who seized the goods or chattels 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 goods or chattels and a notice to the judgment debtor in the form of Schedule B or in a form to the like effect.
No sheriff or bailiff, or other officer shall sell any effects under a writ of execution until he 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 effects have been taken in execution.
Where a sheriff or bailiff or other officer 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, bailiff or officer and to ensure that the goods or chattels are preserved and are not removed from the premises.
In every case where goods seized by a sheriff or bailiff, under execution remain unsold in his hands for want of buyers, he shall state and specify, in his return of "goods on hand", the time and place when and where the goods were offered for sale by him, and the names of at least three persons who were present at he 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.
In respect of writs of execution in the hands of a sheriff or bailiff, priority of claim upon what is realized under such writs shall not be allowed.
Where a sheriff or bailiff realizes any moneys 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 realized, the amount of costs of the sheriff or bailiff to be deducted therefrom and the total amount of the unsatisfied executions in force in the hands of the sheriff or bailiff against the execution debtor.
Where under subsection (1) a sheriff or bailiff under a writ of execution receives periodic payments of less than $50. each, the sheriff or bailiff 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 or bailiff shall hold the moneys for a period of 14 days from the publication of the notice, and thereupon shall distribute them and any other moneys that he may in the meantime have realized under the same or any other writ of execution against the same judgment debtor (as to which moneys subsequently realized no notice need be published), in the manner following; that is to say, by payment of the costs of all the execution creditors as preferential claims pro rata, and by distributing any balance amongst the execution creditors pro rata in proportion to the several respective claims of those creditors, not including costs.
A sheriff or bailiff, 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 clause 34(a) 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 or bailiff, 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 otherwise by any Act provided, the following personal estate is hereby declared free from seizure by virtue of 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, bailiff or other officer making the seizure exceeds in value that amount together with all relevant costs, the sheriff, bailiff or officer 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 who is a corporation.
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(l)(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, sheriffs bailiff, bailiff of the Provincial Court (Family Division), or other officer, 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 effects, 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 or bailiff 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 or bailiff 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.
Section 28 is repealed and the following section is substituted therefor:
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.
This section comes into force on a day fixed by proclamation.
SCHEDULE A (Section 3)
AFFIDAVIT OF CLAIM
A.B. , claimant, vs. C.D. , defendant.
I, A.B., of (residence and occupation), make oath and say:
1. I am the above named claimant.
2. The above named defendant is justly and truly indebted to me in the sum of dollars for (here state shortly the nature and particulars of the claim).
Sworn before me at this day of ,19.
A Commissioner for Oaths, etc.
SCHEDULE B (Subsection 16(1))
(Issuing Court, Style of Cause, etc.)
NOTICE TO JUDGMENT DEBTOR
(name and address of judgment debtor)
TAKE NOTICE that your property is being seized for the purpose of paying the judgment against you for $ entered in favour of on 19 , in the Court of , or so much thereof together with interest and costs as may be outstanding at the date hereof.
AND TAKE NOTICE that you may be entitled to certain exemptions from seizure under subsection 23(1) of The Executions Act which provides as follows:
(here quote subsection 23(1))
SIGNED this day of ,19 .