92 Procedure For Enforcing Charge

CASE LAW

Limitation Period

See the annotation for Sign-O-Lite Plastics Ltd. v. Kennedy, 1983 CanLII 567 (BC SC), under s. 91 of this Act.

Enforcement against Transferred Property

See the annotation for Martin Commercial Fueling Inc. v. Virtanen, 1993 CanLII 571 (BC SC), under s. 86 of this Act.

Transfer of After-acquired Property by Undischarged Bankrupt

A transfer of after-acquired property by an undischarged bankrupt is void. At the moment of acquisition, title vests in the trustee in bankruptcy and the bankrupt cannot then transfer property to a third party. In this case, the bankrupt acquired property without the knowledge of the trustee in bankruptcy and then purportedly transferred beneficial interest in the property to a family trust. The plaintiff, a creditor, applied to the court under s. 92(1) of the Act, calling upon the bankrupt to show cause why the property should not be sold to satisfy the plaintiff’s judgment. The court found that the bankrupt failed to meet his burden of proof and granted the plaintiff’s application (Lasersight Inc. v. Wiese, 2001 BCSC 1791).

No Reviewable Errors in Show Cause Hearing

In Barker v. Daum, 2018 BCCA 402, the judgment debtors appealed an order made after a s. 92 show cause hearing. The court dismissed the appeal by the self-represented judgment debtor D., finding that none of the grounds of appeal were made out. A judgment creditor may re-register the judgment if an earlier registration has lapsed, provided they do so within the judgment’s 10-year limitation period. The show cause hearing is to determine only if the property is liable to be sold; the equity in the property generally falls to be considered in the third hearing; the judge made no reviewable error in concluding the consideration of credits for payments made falls within the registrar’s inquiry in the second stage of the process under the COEA. The registration of the judgment under the COEA in the circumstances did not amount to an abuse of process.

Show Cause Arguments Were Collateral Attacks on Existing Court Orders

In Strata Plan VR 812 v. Yu, 2019 BCSC 2340 (Chambers), the respondent’s use of her strata unit as an Airbnb, contrary to strata corporation bylaws, had resulted in series of legal proceedings, including contempt proceedings, culminating in a judgment against her in excess of $50,000. After that judgment was registered against the respondent’s strata lot, the strata corporation applied under s. 92 of the Court Order Enforcement Act for an order authorizing sale of the strata lot. The court granted the application, ordered a certificate of pending litigation against title to the strata lot, and ordered a reference to the District Registrar of the court to determine, and report to the court, what land was liable to be sold, the nature and particulars of the respondent’s interest in the land and of her title, what judgments formed a lien and charge against title and their priorities, and how the proceeds of sale were to be distributed. The court rejected the respondent’s arguments as to why the strata lot should not be sold as collateral attacks on existing court orders. The present application concerned monetary judgments that had been entered, had not been appealed, and remained unpaid, and there was no basis on which to deny the order sought.