Overview Of The Court Order Enforcement Act

This Act deals with the enforcement or execution of court orders. Part 1 deals with attachment of debts; Parts 2, 3, and 4 deal with reciprocal enforcement of court orders under conventions with foreign jurisdictions; and Part 5 deals with enforcement of court orders. Selected provisions of Part 5 are included in this chapter.

GENERAL EFFECT ON LAND TITLE PRACTICE

This Manual contains material on only those sections of the Act that specifically concern land title practice and execution against land. Section 47 contains definitions that apply to all of Part 5 (ss. 47 to 116) and s. 81 contains definitions that apply only to ss. 82 to 112. Sections 92 to 99 set out Supreme Court procedure for ordering the sale of land, or an interest in land, against which a judgment is registered in the land title office. Sections 100 to 116 describe procedures followed by the sheriff.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Liens and Charges in Favour of the Crown

Under a number of statutes provincial officials may issue certificates for debts owing to the Crown and file the certificates with a court. Once filed, the certificates have the same effect as judgments of the court. See chapter 68 (Government Liens, Charges, and Administrative Penalties) for further information about these statutes.

Land Title Act

See ss. 210 to 214 of the Land Title Act in chapter 15 (Land Title Act Part 14 (ss. 197 to 237)—Charges) regarding the registration of judgments.

Forms

The registrar requires the use of various forms which are either prescribed under the Land Title Act or form the substance of the Schedules to the Court Order Enforcement Act, R.S.B.C. 1996, c. 78. Relevant Land Title Act forms noted in this part are reproduced at chapter 33 (Land Title Forms). Relevant forms from the Court Order Enforcement Act Schedules are reproduced in this part following the sections to which they relate.

Secondary Sources

See generally the following materials:

• Di Castri, Registration of Title to Land, vol. 3, chap. 21, “Judgments and Writs of Execution” (Carswell, 1987)
• Law Reform Commission of British Columbia, Report on Execution Against Land (Law Reform Commission, 1978)
• Robinson, British Columbia Debtor–Creditor Law and Precedents, chap. 7, “Execution Against Land” (Carswell, 1993)
• British Columbia Creditors’ Remedies, chap. 8, “Postjudgment Remedies—Part 2—Real Property” (CLEBC, 2001)

CASE LAW

Scope of Court Order Enforcement Act

The signing of a final judgment is not execution. To constitute execution, some step such as seizure or sale of property must be involved (Hughes v. Sharp, 1968 CanLII 1013 (BC CA)).

Where a plaintiff obtains a judgment against a defendant and registers that judgment in the land title office against the defendant’s land, the plaintiff cannot proceed to execute its judgment under Rules 42 and 43 (now Rules 13-2, 13-3, and 13-5) but must proceed under the Court Order Enforcement Act. Sections 93 to 113 are not a complete code once a court has made an order for the sale of land in execution proceedings. When the court makes an order directing a sale of land, it retains jurisdiction over the sale and, in particular, may require that the sale be subject to the approval of the court (First Western Capital Ltd. v. Wardle, 1984 CanLII 394 (BC CA); followed in Royal Bank of Canada v. Cranwood Development Ltd., [1986] B.C.J. No. 759 (QL) (S.C.)).

PRIORITIES

Application of the Creditor Assistance Act

Money realized from a sale under s. 96 of the Act is subject to s. 110 of the Act, which provides that it shall be money levied under the Creditor Assistance Act, R.S.B.C. 1996, c. 83 and paid into court, and s. 111 of the Act, which provides that the money shall be distributed in the same manner as the sheriff would distribute money levied under a writ of execution under the Creditor Assistance Act. Under that Act, there is no priority among execution creditors. Therefore, with respect to land, a judgment holder is not an “execution creditor” unless an order is made in the judgment holder’s favour for the sale of land and the holder is not entitled as such to share in the proceeds until the money is in the hands of the court registrar (ss. 110 and 111). That money will be distributed pari passu. Where, however, money is paid into court for some reason other than a court-ordered sale under s. 96 of the Court Order Enforcement Act, ss. 110 and 111 and the provisions of the Creditor Assistance Act do not apply. In this case, the fund consisted of money owing on an agreement for sale pursuant to a right to purchase which was registered before various judgments. The fact that one of the judgment creditors had taken other execution steps under the Court Order Enforcement Act did not colour the essential nature of the fund in court or make the judgment creditor an “execution creditor” with respect to the fund. The judgment creditor merely possessed a charge on the land of the judgment debtor under s. 86 of the Act. Accordingly, priorities for the distribution of the fund were governed by s. 28 of the Land Title Act (Hallmark Homes Ltd. v. Crown Trust Co., 1983 CanLII 616 (BC SC)). See the definition of “execution creditor” under s. 47 of this Act.

Effect of Bankruptcy

Even though under the laws of the province registered judgment creditors have a form of secured interest in land for purposes of execution, that secured interest does not continue if bankruptcy supervenes. In that event, the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 provisions must determine who is or is not a secured creditor. Re Victoria Bed and Mattress Company Limited (in Bankruptcy), 1959 CanLII 284 (BC SC), is determinative of the proposition that a creditor claiming by virtue of any of the processes described in the first part of s. 70(1) of the Bankruptcy and Insolvency Act, such as garnishment, certificate of judgment, or judgment having the effect of a hypothec, cannot be considered to be a secured creditor within the meaning of s. 2 of the Bankruptcy and Insolvency Act (Royal Bank of Canada v. Cloverdale Lumber & Plywoods (1984) Ltd., 1986 CanLII 783 (BC SC)).