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In This Volume

96 (1) If in a summary way or on the trial of an issue, or as the result of inquiries under sections 92 to 95, or otherwise, any land or the interest of any judgment debtor in it is found liable to be sold, an order must be made by the court declaring what land or what interest in it is liable to be sold, and directing the sale of it by the sheriff.

  • (2) Despite subsection (1), if a premises situated on the land or interest in it of a judgment debtor is the home of the debtor, the court may defer the sale, subject to the performance by the judgment debtor of terms and conditions of payment or otherwise as the court imposes.
  • (3) If in any case substituted service has been ordered by the court on the judgment debtor, of the notice of civil claim or notice of family claim, as the case may be, or other process in the proceeding in which the judgment is obtained, the land ordered to be sold must not be sold by the sheriff until it has been advertised as provided in section 97 for 6 months after the order for sale.
  • (4) Despite subsection (3), on application by the judgment creditor to the Supreme Court, the court may shorten the period of 6 months referred to in that subsection, or make any other order in that behalf it thinks fit.

1979-75-88; 1985-70-4, effective February 10, 1986 (B.C. Reg. 16/86), 2010-6-38, effective July 1, 2010.

CASE LAW

The plaintiff sought to enforce a judgment and applied for an order for execution against land owned by the defendants. The defendants’ appeal from the plaintiff’s judgment to the Court of Appeal was dismissed. Leave to appeal to the Supreme Court of Canada was refused. The defendants then applied to the Supreme Court of Canada for reconsideration, an application that remains outstanding. The defendants say their land should not be sold as they are making arrangements to secure a mortgage to pay the judgment. The court held that the plaintiff was entitled to proceed with an examination in aid of execution. It found that the evidence provided by the defendants was insufficient to indicate that their grounds for reconsideration met the test of “exceedingly rare circumstances” as set out in Rule 73(1) of the Rules of the Supreme Court of Canada. The court also found that the defendants’ evidence about their efforts to obtain a mortgage was very limited in that it consisted solely of an e-mail from the bank acknowledging receipt of their mortgage application. The defendants provided no confirmation of the value of their property and no information about the amount owing under an existing mortgage, the amount to be borrowed, or the terms and conditions of the mortgage. As the defendants failed to show cause why their lands should not be sold, the court ordered the district registrar to proceed with the examination in aid of execution (Hundley v. Garnier, 2013 BCSC 380).

The court below granted an order for sale of the debtor’s home in order to satisfy a judgment in favour of the appellants. In light of hardship to the debtor, the court deferred the sale for 24 months, without conditions. The appellate court reduced the deferral period by six months, saying s. 96(2) of the Court Order Enforcement Act did not require the court to impose conditions, but finding that the court had erred in failing to give appropriate consideration to the potential prejudice to the creditor (Kriegman v. Wilson, 2020 BCCA 66).