Vol. 149, No. 3 — February 11, 2015

Registration

SOR/2015-22 January 30, 2015

GARNISHMENT, ATTACHMENT AND PENSION DIVERSION ACT

Regulations Amending the Garnishment and Attachment Regulations

P.C. 2015-45 January 29, 2015

His Excellency the Governor General in Council, on the recommendation of the Minister of Justice, made after consultation between the Minister and the Speaker of the Senate and the Speaker of the House of Commons, pursuant to section 12, subsection 14(3) and sections 24 (see footnote a) and 29 of the Garnishment, Attachment and Pension Diversion Act (see footnote b), makes the annexed Regulations Amending the Garnishment and Attachment Regulations.

REGULATIONS AMENDING THE GARNISHMENT AND ATTACHMENT REGULATIONS

AMENDMENTS

1. Section 2 of the Garnishment and Attachment Regulations (see footnote 1) is amended by adding the following in alphabetical order:

“provincial enforcement service” has the same meaning as in section 2 of the Family Orders and Agreements Enforcement Assistance Act. (autorité provinciale)

2. Sections 4 and 4.1 of the Regulations are replaced by the following:

4. (1) Subject to subsections (2) and (3), service of documents on Her Majesty in connection with garnishment proceedings permitted by Division I of Part I of the Act must be effected at the following places:

(2) If the garnishment proceedings are in respect of a debtor who receives salary or remuneration from the Department of Justice, the Public Prosecution Service of Canada or a court, is a judge to whom the Judges Act applies or is a person appointed by a Minister under section 128 of the Public Service Employment Act, service of documents must be effected at the following place:

(3) If the garnishment proceedings are in respect of a debtor who receives salary or remuneration from a Crown corporation listed in section 6, service of documents must be effected at the head office of the corporation.

4.1 Service of documents on the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner in connection with garnishment proceedings permitted by Division IV of Part I of the Act must be effected at the following places:

4.2 Service in accordance with sections 4 and 4.1 by a provincial enforcement service may be effected by any electronic means by which the recipient is capable of receiving the documents in a usable format.

METHOD OF RESPONSE

4.3 Her Majesty, the Senate, the House of Commons, the Library of Parliament, the office of the Senate Ethics Officer and the office of the Conflict of Interest and Ethics Commissioner may respond to a garnishee summons by notice indicating

4.4 The garnishee summons may be responded to by any electronic means by which its issuer is capable of receiving the response in a usable format.

3. (1) Subparagraph 5(a)(iii) of the Regulations is replaced by the following:

(2) Paragraph 5(f) of the Regulations is amended by striking out “and” at the end of subparagraph (ix), by adding “and’’ at the end of subparagraph (x) and by adding the following after subparagraph (x):

4. Paragraph 6(c) of the Regulations is repealed.

5. (1) Paragraph 7(a) of the Regulations is replaced by the following:

(2) Paragraphs 7(d) and (e) of the Regulations are repealed.

(3) Paragraph 7(i) of the Regulations is repealed.

6. Item 10 of the schedule to the Regulations is amended by adding

7. Item 11 of the schedule to the Regulations is amended by replacing

8. Paragraph 16(a) of the schedule to the Regulations is replaced by the following:

9. Item 18 of the schedule to the Regulations is replaced by the following:

18. Name of issuer of garnishee summons

Nom de l’entité qui a délivré le bref de saisie-arrêt

10. Item 19 of the schedule to the Regulations is amended by replacing

11. Item 20 of the schedule to the Regulations is amended by replacing

with the following:

12. The French version of the Regulations is amended by replacing “de la Couronne” with “d’État” in the following provisions:

COMING INTO FORCE

13. These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

As a result of changes in federal, provincial and territorial (FPT) legislation and practices, the Garnishment and Attachment Regulations (Regulations) were outdated and inaccurate. A regulatory amendment is the only means to correct inaccuracies and ensure the Regulations are reflective of changes to FPT legislation and practices.

Background

Enforcement of judgment debts, including support obligations, is primarily a provincial and territorial responsibility. However, the federal government provides tools to assist creditors in their enforcement activities. In addition to provincial and territorial legislation, creditors have access to federal legislation such as Part I of the Garnishment, Attachment and Pension Diversion Act (GAPDA).

Part I of the GAPDA permits the garnishment of public servants’ salaries and remuneration of federal contractors where an applicant serves on Her Majesty or on a parliamentary institution an application, a copy of the judgment or order against the debtor and a garnishee summons.

Garnishment registries are specified in the Regulations to receive and review all garnishment documents pertaining to Crown employees and contractors. The registries then forward the documents and instructions to departmental compensation offices. The registries were all part of the Department of Justice except for two that were part of the Canada Revenue Agency (CRA). Other registries are specified in the Regulations for garnishments relating to parliamentary institutions. The prescribed Crown corporations, except Canada Post, received garnishment documents at their head office.

Objectives

The amendments harmonize the Regulations with provincial and territorial laws, correct addresses for the service of documents, correct references to federal legislation, reflect the fact that garnishee summonses are not always issued by courts, take into consideration changes to the Government structure and the creation of the Public Prosecution Service of Canada (PPSC), repeal references to abolished Crown corporations, and add an exclusion to the definition of “salary.”

Description

Prior to these amendments, responses to garnishee summonses varied according to provincial garnishment law. In view of a proposed modernization of the federal pay system, the amendments allow the use of uniform responses.

The amendments

The Regulations are amended as follows.

Service of documents (section 4)

The names and addresses of the registries where documents are to be served on Her Majesty and parliamentary institutions are updated.

Under the GAPDA a garnishee summons includes a document of a similar nature to a garnishee summons such as a notice of garnishment issued by a provincial enforcement service (PES). Prior to these amendments, the Regulations and application form only referred to a court-issued garnishee summons. The amendments reflect the fact that, under the GAPDA, entities other than courts, such as a PES, can issue the document.

Under the former Regulations, a garnishee summons issued by the court or the PES of a province or territory was to be served according to its place of issuance on a registry prescribed by regulations.  The provinces of Quebec and Ontario each have a regional registry (respectively in Montréal and Toronto) and share the National Capital Region (NCR) registry (in Ottawa). Since the province of Quebec has a centralized PES in Québec City and the province of Ontario has a centralized one in Toronto, the garnishee summonses of these two PES were issued from a single location (Québec City and Toronto), and consequently all were served respectively on the registries of Montréal and Toronto under the former rule.  None could be served on the NCR registry since the PES garnishee summonses were not issued in a region designated for service to the NCR registry.

By having the place of service now determined by the location where the support judgment was rendered, the distribution of support enforcement files between the registries of Montréal, Toronto and the NCR is more efficient and provides for a more balanced workload among these three registries.

The provisions of the Regulations dealing with service of documents in Ontario referred to counties, districts and judicial districts. Since the enactment of Ontario’s Territorial Division Act, 2002, these divisions were no longer accurate. As garnishment is linked to court activity, regions under Ontario’s Courts of Justice Act are specified. As a result, courts located in Hastings County now serve documents on the NCR registry instead of the Toronto registry.

The amendments transfer the registry responsibilities in New Brunswick and in Newfoundland and Labrador from the CRA to the Department of Justice. The NCR registry now receives documents issued in these two provinces.

The amendments add a reference to the PPSC to ensure that the salary and remuneration of debtors working for the PPSC may be garnisheed under the GAPDA.

In 2005, the new Public Service Employment Act came into force. The provision relating to a Minister’s staff in section 39 was relocated to section 128 of the new Act. The amendments reflect this change.

Canada Post (section 4)

The place of service of documents for a debtor who receives remuneration from Canada Post is changed from registries at the Department of Justice to Canada Post’s head office. Canada Post is now in the same position as other Crown corporations that receive service of documents.

E-communication (new sections 4.2 and 4.4)

Under the GAPDA, service of documents and responses to garnishee summonses may be effected by any method permitted by provincial garnishment law, by registered mail or by any other prescribed method.

New sections 4.2 and 4.4 in the Regulations allow a PES to serve documents and a garnishee to send responses by electronic means. The amendments also ensure that the electronic format used is compatible with the computer systems of the parties involved and provide flexibility for the use of new technologies as they become available. A more efficient, automated process for garnishee summonses will reduce the use of paper and ink and decrease risks attributable to human error.

The electronic service of garnishment documents by the PES under the Family Orders and Agreements Enforcement Assistance Act has proven to be reliable, easy to operate and a better use of available resources. Except for a few provinces, provincial and territorial legislation does not permit service of garnishment documents and submission of responses by electronic communication other than by fax. Amending the federal Regulations eliminates the need for provinces and territories to amend their legislation.

Uniform response (new section 4.3)

Responses to garnishment documents are sent according to provincial garnishment law, which varies from one jurisdiction to another. The proposed modernization of the federal pay system could include the option to automate the response process. As it would be inefficient to program 13 variations of such responses, the new section 4.3 of the Regulations allows one uniform response to all garnishee summonses.

Exclusions from salary (section 5)

The Regulations provide a list of the amounts that are deemed to be or to have been excluded from a person’s salary; thus, they cannot be garnisheed. The amendments to section 5 of the Regulations replace the reference to “unemployment insurance contributions” with a reference to “employment insurance contributions” to correspond with current federal legislation, and add the cost of court clothing required to be worn by court officials, as it is similar to other exclusions listed.

Crown corporations (sections 6 and 7)

The amendments to sections 6 and 7 of the Regulations delete the reference to Crown corporations that no longer exist. The Canadian Livestock Feed Board was abolished in 1991, the Canadian Corporation for the 1967 World Exhibition was abolished in 1984, the Canadian Saltfish Corporation was abolished in 1995 when the Saltfish Act was repealed, and Petro-Canada Limited was dissolved in 2001.

The amendments to these sections also change the reference to “Schedule A” of the Public Service Superannuation Act to “Schedule I”.

“One-for-One” Rule

The “One-for-One” Rule does not apply to these amendments as they do not impose any administrative burden on business.

Small business lens

The small business lens does not apply to these amendments as they do not impose any burden on small business.

Consultation

Consultations were held with the relevant federal government departments, Crown corporations, parliamentary institutions and the PES. All were supportive of the amendments.

These amendments were published in the Canada Gazette, Part I, on December 21, 2013, followed by a 30-day comment period. A comment was received regarding the confidentiality of information transmitted by electronic means. Under the new Regulations, only a PES is authorized to serve documents by electronic means. Section 4.2 can be implemented securely with the PES in compliance with existing privacy obligations. Furthermore, in response to the comment, the addresses for service of documents on Her Majesty and parliamentary institutions were slightly modified to clearly indicate that documents can only be properly served on garnishment registries.

Rationale

Effecting service of documents at Canada Post’s head office has a limited impact on the operations of the corporation while creating savings for the Department of Justice. Canada Post garnishment actions represent over 25% of the registries’ active files. Time and effort previously expended by the registries to process these garnishment actions will be saved since Canada Post will now receive the documents directly from creditors, rather than from the registries.

The impact of transferring registry responsibilities for New Brunswick and for Newfoundland and Labrador applications, and of transferring service of documents for Hastings County, to the NCR registry is minimal, with any costs absorbed through existing resources, given the low volume of applications from these sites.

Allowing electronic means for service of documents and for responses improves the efficiency of the garnishment process. The amendment relating to service only affects the exchange of documents between the garnishee and the PES. Amending the federal Regulations eliminates the need for provinces and territories to amend their legislation.

Electronic documents, as opposed to hard copies, also allow for the cost-effective management of records. The amendment saves staff time in receiving, processing and filing each document served in paper format and allows the use of technology to transfer information in a manner that is more secure than the manual exchange of documents. The amendment, along with the proposed modernization of the federal pay system, improves the process by simplifying a garnishee’s obligations from beginning to end. Requiring that documents be submitted electronically in a manner through which the recipient is capable of receiving the documents in a usable format ensures the flexibility to encompass new technologies for upgrades as they become available and ensures the electronic format used is compatible with technological infrastructure and security policies.

Now that uniform electronic responses from garnishees are allowed, fewer federal government resources will be needed to program responses when the federal pay system is modernized. Each variation would have been an exception to be programmed in the system, which would have been costly and impractical.

Implementation, enforcement and service standards

Implementation of these amendments is carried out by the registries and the compensation offices that are responsible for administering the garnishment process within the federal government departments, the prescribed Crown corporations, the parliamentary institutions and the PES. Compliance with the GAPDA, Part I, and its Regulations continues to be assured by those parties.

Contact

Sylviane Deslauriers
Counsel
Support Enforcement Law and Policy Unit
Family, Children and Youth Section
Department of Justice
284 Wellington Street
Ottawa, Ontario
K1A 0H8
Telephone: 613-954-4723
Fax: 613-952-9600