Rules Amending the Federal Courts Rules (Enforcement): SOR/2021-245

Canada Gazette, Part II, Volume 155, Number 26

Registration
SOR/2021-245 December 13, 2021

FEDERAL COURTS ACT

P.C. 2021-1003 December 9, 2021

The rules committee of the Federal Court of Appeal and the Federal Court, pursuant to section 46 ^{footnote a} of the Federal Courts Act ^{footnote b}, makes the annexed Rules Amending the Federal Courts Rules (Enforcement).

Ottawa, November 3, 2021

Donald J. Rennie
Chair
Rules committee of the Federal Court of Appeal and the Federal Court

Whereas, pursuant to paragraph 46(4)(a) ^{footnote c} of the Federal Courts Act ^{footnote b}, a copy of the proposed Rules Amending the Federal Courts Rules, substantially in the annexed form, was published in the Canada Gazette, Part I, on April 10, 2021 and interested persons were invited to make representations concerning the proposed Rules;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to section 46^{footnote a} of the Federal Courts Act ^{footnote b}, approves the annexed Rules Amending the Federal Courts Rules (Enforcement), made by the rules committee of the Federal Court of Appeal and the Federal Court.

Rules Amending the Federal Courts Rules (Enforcement)

Amendments

1 Subsection 50(4) of the Federal Courts Rules ^{footnote 1} is replaced by the following:

Foreign judgment or arbitral award

(4) A prothonotary may hear an application made under rule 327 for registration of a foreign judgment or recognition and enforcement of an arbitral award.

2 Paragraph 300(h) of the Rules is replaced by the following:

• (h) applications for registration of a foreign judgment or recognition and enforcement of an arbitral award under rule 327.

3 (1) The definition foreign judgment in rule 326 of the Rules is replaced by the following:

foreign judgment

means a judgment that may be registered in a court in Canada in accordance with

• (a) sections 80 to 89 of the Marine Liability Act; or
• (b) the Canada-United Kingdom Civil and Commercial Judgments Convention Act. (jugement étranger)

(2) Rule 326 of the Rules is amended by adding the following in alphabetical order:

arbitral award

means

• (a) an arbitral award to which subsection 5(2) of the Commercial Arbitration Act applies; or
• (b) a foreign arbitral award that may be recognized and enforced by a court in Canada in accordance with the United Nations Foreign Arbitral Awards Convention Act, or articles 35 and 36 of the Commercial Arbitration Code, set out in Schedule 1 to the Commercial Arbitration Act. (sentence arbitrale)

creditor

means the person in whose favour a foreign judgment is rendered or an arbitral award is made. (créancier)

debtor

means the person against whom a foreign judgment is rendered or an arbitral award is made. (débiteur)

4 Rule 327 of the Rules is replaced by the following:

Form of application

327 An application for registration of a foreign judgment shall be in Form 327A and an application for recognition and enforcement of an arbitral award shall be in Form 327B.

5 Subsection 328(2) of the Rules is replaced by the following:

Directions regarding service

(2) On an ex parte application under subsection (1), the Court may direct that notice of the application be served on the debtor and may give any directions respecting the manner of service that it considers just.

6 Rule 329 of the Rules is replaced by the following:

Affidavit

329 (1) An affidavit filed in an application under rule 327 shall contain the following information:

• (a) a statement confirming that the foreign judgment or arbitral award was not fully satisfied as at the filing of the application;
• (b) a statement confirming that the debtor appeared in the original proceeding;
• (c) an address in Canada for service on the creditor;
• (d) the name and usual or last known address of the debtor;
• (e) a statement indicating whether interest has accrued on the amount payable under the foreign judgment or arbitral award in accordance with the law of the state of the originating court or arbitral tribunal and, if interest has accrued, the rate of interest, the day from which it is payable, the amount due at the time of the filing of the application and, if applicable, the day on which interest ceases to accrue;
• (f) if applicable, the rate of exchange into Canadian currency prevailing on the day on which the foreign judgment was rendered or the arbitral award was made, as ascertained from a chartered bank in Canada;
• (g) a statement confirming that, having made careful and full inquiries, the applicant knows of no impediment to registration of the foreign judgment or recognition and enforcement of the arbitral award; and
• (h) a statement confirming that the foreign judgment or arbitral award is executory, that no appeal or other form of judicial review is pending and that any time prescribed for the making of an appeal or application for judicial review has expired.

Documents

(2) The affidavit shall be accompanied by an exemplified or certified copy of the foreign judgment or arbitral award, any reasons — including dissenting reasons — and, in the case of an arbitral award, a copy of the arbitration agreement under which the award was made.

Additional requirement

(3) If the debtor did not appear in the original proceeding, the affidavit referred to in subsection (1) shall be accompanied by an affidavit attesting that the document instituting the original proceeding was served on the debtor.

7 Rules 331 to 334 of the Rules are replaced by the following:

Conversion to Canadian currency

331 Unless the Court orders otherwise, an amount payable under a foreign judgment or an arbitral award shall be converted into the equivalent amount in Canadian currency on the basis of the rate of exchange, ascertained from a chartered bank in Canada, that was prevailing on the day on which the judgment was rendered or the award was made.

Interest

332 (1) Any interest on the amount payable under a foreign judgment or an arbitral award that has accrued to the day on which the judgment is registered or the award is recognized shall be added to the amount payable under the judgment or award.

Interest rate

(2) Unless the Court orders otherwise, the amount payable under a foreign judgment that is registered or an arbitral award that is recognized as a result of an application under rule 327 bears interest from the day on which it is registered or recognized at the rate set out in section 3 of the Interest Act.

Service and translation of order

333 Unless the Court orders otherwise, a creditor who obtains an order for registration of a foreign judgment or recognition and enforcement of an arbitral award shall personally serve on the debtor the order, together with a translation of the order in the language of the judgment or award, and an affidavit attesting to the accuracy of the translation.

Action prior to enforcement or execution

334 Unless the Court orders otherwise, a foreign judgment that is registered or an arbitral award that is recognized as a result of an application under rule 327 shall not be executed or enforced until proof of service of the order for registration or recognition has been filed.

8 The Rules are amended by adding the following before rule 423:

Definition of designated officer

422.1 In this Part, designated officer means an officer of the Registry designated by an order of the Court.

9 Rule 426 of the Rules is replaced by the following:

Examinations

426 (1) A person who has obtained an order for the payment of money may

• (a) conduct an oral examination of the judgment debtor or, if the judgment debtor is a corporation, of an officer of the corporation, as to the judgment debtor’s assets; and
• (b) bring a motion for leave to conduct an oral examination of any other person who might have information regarding the judgement debtor’s assets.

Service of notice of motion

(2) In respect of a motion brought under paragraph (1)(b), the notice of motion shall be served on the judgement debtor and personally served on the person to be examined.

Criteria for leave

(3) On a motion brought under paragraph (1)(b), the Court may grant leave to conduct the oral examination and determine the time and manner of conducting the examination, if it is satisfied that

• (a) the person to be examined may have information as to the judgment debtor’s assets;
• (b) the moving party has been unable to informally obtain the information from the person to be examined or from another source by any other reasonable means;
• (c) it would be unfair not to allow the moving party to conduct the examination; and
• (d) the examination will not cause undue delay, inconvenience or expense to the person to be examined or to the judgment debtor.

10 Paragraph 429(1)(c) of the English version of the Rules is replaced by the following:

• (c) subject to subsection (2), in respect of an order other than for payment of money, an order of committal against the person or, if the person is a corporation, against any director or officer of the corporation.

11 Subsections 437(2) and (3) of the Rules are replaced by the following:

Requisition to extend validity of writ

(1.1) A person who is entitled to execution of a writ, including a writ the validity of which has been previously extended, may make a requisition to a designated officer to extend the validity of the writ.

Conditions

(2) The designated officer may extend the validity of a writ of execution for a further period of six years if

• (a) the requisition is accompanied by an affidavit attesting to
  • (i) the date on which the writ was issued,
  • (ii) the fact that the writ is not wholly executed,
  • (iii) the fact that there has been an attempt to execute the writ in the previous six years or that the writ has been registered in a provincial registry, and
  • (iv) if the validity of the writ was previously extended, the date on which it was extended;
• (b) the writ is not wholly executed; and
• (c) the writ is not expired.

Extension indicated on writ

(3) If the validity of a writ of execution is extended under subsection (2), a new copy of the writ, bearing the date on which its validity was extended, shall be issued in Form 425A.

12 Subsection 439(3) of the Rules is replaced by the following:

Directions from Court

(3) A person at whose instance a writ of execution is issued, a sheriff or any interested person may seek directions from the Court concerning any issue that is not addressed by these Rules that arises from the enforcement of an order.

13 Rules 449 to 457 of the Rules are replaced by the following:

Notice of garnishment

449 (1) Subject to rules 452 and 456 and on requisition filed by a judgment creditor in Form 449A, a designated officer may issue a notice of garnishment, in Form 449B, for the attachment of the following debts to satisfy an order for the payment of money:

• (a) a debt owing or accruing from a person in Canada to a judgment debtor; or
• (b) a debt owing or accruing from a person outside Canada to a judgment debtor, if the debt is one for which the person might be sued in Canada by the judgment debtor.

Requisition — notice of garnishment

(2) The requisition shall be accompanied by a copy of the order for the payment of money and an affidavit that contains the following information:

• (a) the date and amount of any payment received since the order was made;
• (b) the amount owing, including postjudgment interest;
• (c) the manner in which the amount owing and the postjudgment interest are calculated;
• (d) the address of the judgment debtor;
• (e) the name and address of each garnishee;
• (f) a statement indicating that the judgment creditor believes that the garnishees are or will become indebted to the judgment debtor and the grounds for the belief;
• (g) if a garnishee is not then indebted but will become indebted to the judgment debtor, details with respect to the date on and the circumstances under which the debt will arise;
• (h) details of the debts; and
• (i) any other information that is necessary to establish the amount awarded and the judgment creditor’s entitlement.

Service

(3) The judgment creditor shall serve on each garnishee and on the judgment debtor a copy of the notice of garnishment and a copy of the requisition.

Debts bound as of time of service

(4) Subject to rule 452, a notice of garnishment binds the debts attached as of the time of its service on the garnishee.

No payment to judgment debtor

(5) Subject to rule 452, a garnishee who has been served with a notice of garnishment shall not pay the judgment debtor any amount owing to the judgment debtor without leave of the Court.

Sworn declaration of garnishee

(6) Within 21 days after the day on which the garnishee is served with the notice of garnishment, the garnishee shall file and serve on the judgment creditor and judgment debtor a sworn declaration of garnishee, in Form 449C, that contains

• (a) a list of all debts owing or accruing to the judgment debtor by the garnishee by reason of an obligation incurred on or before the day of the garnishee’s declaration; and
• (b) if the garnishee disputes liability to pay a debt claimed to be owing or accruing to the judgment debtor or claims the debt is for a lesser amount than that set out in the notice of garnishment, any relevant information, including any supporting documents not contained in the requisition for the issuance of a notice of garnishment.

Order or certificate not to be contested

449.1 In a proceeding under any of rules 449 to 465, a judgment debtor shall not contest the order or certificate that gave rise to the garnishment.

Payment into Court by garnishee

450 A garnishee who admits liability for a debt due to a judgment debtor shall pay into court the debt, or as much of the debt as is sufficient to satisfy the judgment, and give notice of the payment to the judgment creditor.

Garnishment order

451 (1) If a garnishee does not file a declaration of garnishee under subsection 449(6) or make the payment into court under rule 450, the Court may, on motion by the judgment creditor, order the garnishee to pay the amount owing to the judgment creditor as if the garnishee were the judgment debtor.

Future payment

(2) If a debt owed to a judgment debtor is payable at a future time or is subject to a condition when a notice of garnishment is issued, an order under subsection (1) may require that the garnishee pay the debt to the judgment creditor when the debt becomes payable or the condition is fulfilled.

Enforcement

(3) An order under subsection (1) may be enforced in the same manner as any other order for the payment of money.

Exemption from seizure

452 If a debt owing or accruing to a judgment debtor is in respect of wages or salary, no portion of the wages or salary that is exempt from seizure or attachment under the law of the province where the debt is payable shall be attached under a notice of garnishment.

Summary determination of liability

453 (1) If a garnishee disputes liability to pay a debt claimed to be owing or accruing to the judgment debtor or claims that the debt is for a lesser amount than that set out in the notice of garnishment, the Court may, on motion, summarily determine the garnishee’s liability or order that it be determined in any manner that the Court directs.

Service and filing

(2) The party bringing the motion shall serve and file the notice of motion on all other parties within the following time limit:

• (a) in the case of a motion brought by the judgment creditor or judgment debtor, within 21 days after the day on which that party is served with the declaration of garnishee; and
• (b) in the case of a motion brought by the garnishee, within 21 days after the day on which the judgment creditor or judgment debtor is served with the declaration of garnishee, whichever is the earlier.

Discharge of liability

454 A payment made by a garnishee under rule 450 or in compliance with a notice of garnishment issued under subsection 449(1) or an order under rule 451 or 453, and any execution levied against a garnishee under such a notice of garnishment or order, constitutes a valid discharge of the garnishee’s liability to the judgment debtor to the extent of the amount paid or levied, even if the attachment is later set aside or the order or notice of garnishment from which it arose is later reversed.

Other interested person

455 (1) A person, other than a judgment debtor, who claims to have an interest in the debt sought to be attached may, by motion, state the nature of their interest and the relief sought.

Determination of validity of claim

(2) On motion brought under subsection (1), the Court may summarily determine the questions at issue between the claimants or order that they be determined in any manner that it directs.

Order for payment

456 (1) A judgment creditor shall not file a requisition under subsection 449(1) in respect of money that is standing to the credit of the judgment debtor in court. However, they may bring a motion for an order that the money, or a lesser amount sufficient to satisfy the order sought to be enforced and the costs of the motion, be paid to the judgment creditor.

Limitation

(2) If a motion is brought under subsection (1), the money to which the motion relates shall not be paid out of court until after the determination of the motion.

Service of notice of motion

(3) Unless the Court directs otherwise, the notice of a motion brought under subsection (1) shall be served on the judgment debtor and filed at least seven days before the day fixed for the hearing of the motion.

Costs related to requisition

457 Unless the Court directs otherwise, the costs of a requisition under subsection 449(1) and any related proceedings shall be retained by the judgment creditor out of the money recovered and be in priority to the judgment debt.

14 Subparagraphs 458(1)(a)(i) and (ii) of the Rules are replaced by the following:

• (i) on real property or immoveables, or on an interest in real property or a right in immoveables, if the judgment debtor, directly or indirectly, owns the real property or immoveables, holds an interest in the real property, including a beneficial interest, or holds an immoveable right or has a claim to the immoveables, including as beneficiary under a trust or succession, in Form 458A, or
• (ii) on any interest or right, including a beneficial interest, in any shares, bonds or other securities specified in the order, to which the judgment debtor is directly or indirectly entitled, in Form 458B; and

15 Form 327 of the Rules is replaced by the following:

FORM 327A

Rule 327

Notice of Application for Registration of a Foreign Judgment

(General Heading – Use Form 66)

Notice of Application for Registration of a Foreign Judgment

A LEGAL PROCEEDING HAS BEEN COMMENCED by the applicant for registration in Canada of a foreign judgment granted against (name of respondent) by (name of court or tribunal) in (name of country or state) on (date). The claim made by the applicant appears on the following pages.

(Include the following paragraph if the application is brought ex parte)

THIS APPLICATION is brought ex parte under rule 328 of the Federal Courts Rules and, unless the Court orders otherwise, will be decided on the basis of written representations and without notice to the respondent.

(Date)

Issued by:
(Registry Officer)

Address of local office:

Application

1 The applicant applies for registration of a foreign judgment granted against (name of respondent) by (name of court or tribunal) in (name of country or state) on (date) under

(Select one of the following options.)

• ☐ sections 80 to 89 of the Marine Liability Act
• ☐ the Canada-United Kingdom Civil and Commercial Judgments Convention Act

2 The grounds for the application are

(Select applicable options and provide information indicated.)

• ☐ the judgment is one to which (specify the statute or statutory provisions selected above) applies
• ☐ (specify the statute or statutory provisions selected above) does not preclude registration of the judgment
• ☐ the respondent appeared (or did not appear) before the (name of court or tribunal) that granted the judgment (If the respondent did not appear, explain why the registration is nevertheless permitted.)

3 The following documentary evidence is relied on in support of this application:

(Select applicable options and provide documents indicated.)

• ☐ an exemplified or certified copy of the foreign judgment and any reasons, including dissenting reasons, given in respect of that judgment
• ☐ the affidavit of (name) (see requirements set out in rule 329 of the Federal Courts Rules)

4 The respondent in this application resides at (address).

(Date)

(Signature of solicitor or applicant)

(Name, address, telephone and fax numbers of solicitor or applicant)

FORM 327B

Rule 327

Notice of Application for Recognition and Enforcement of an Arbitral Award

(General Heading – Use Form 66)

Notice of Application for Recognition and Enforcement of an Arbitral Award

A LEGAL PROCEEDING HAS BEEN COMMENCED by the applicant for recognition and enforcement in Canada of an arbitral award granted against (name of respondent) by (name of arbitral tribunal) in (name of country or state) on (date). The claim made by the applicant appears on the following pages.

(Include the following paragraph if the application is brought ex parte)

THIS APPLICATION is brought ex parte under rule 328 of the Federal Courts Rules and, unless the Court orders otherwise, will be decided on the basis of written representations and without notice to the respondent.

(Date)

Issued by:
(Registry Officer)

Address of local office:

Application

1 The applicant applies for recognition and enforcement of an arbitral award granted against (name of respondent) by (name of arbitral tribunal) in (name of country or state) on (date) under

(Select one of the following options.)

• ☐ subsection 5(2) of the Commercial Arbitration Act
• ☐ the United Nations Foreign Arbitral Awards Convention Act
• ☐ articles 35 and 36 of the Commercial Arbitration Code, set out in Schedule 1 to the Commercial Arbitration Act

2 The grounds for the application are

(Select applicable options and provide information indicated.)

• ☐ the arbitral award is one to which (specify the statute or statutory provisions selected above) applies
• ☐ (specify the statute or statutory provisions selected above) does not preclude the recognition and enforcement of the arbitral award
• ☐ the respondent appeared (or did not appear) before the (name of arbitral tribunal) that granted the arbitral award (If the respondent did not appear, explain why the recognition and enforcement are nevertheless permitted.)

3 The following documentary evidence is relied on in support of this application:

(Select applicable options and provide documents indicated.)

• ☐ an exemplified or certified copy of the arbitral award and any reasons, including dissenting reasons, given in respect of that arbitral award
• ☐ a copy of any arbitration agreement under which the arbitral award was made
• ☐ the affidavit of (name) (see requirements set out in rule 329 of the Federal Courts Rules)

4 The respondent in this application resides at (address).

(Date)

(Signature of solicitor or applicant)

(Name, address, telephone and fax numbers of solicitor or applicant)

16 Form 425A of the Rules is replaced by the following:

FORM 425A

Rules 425 and 437

Writ of Seizure and Sale

(General Heading — Use Form 66)

(Court seal)

Writ of Seizure and Sale

To the Sheriff of the (County, Regional Municipality, etc. of (name), or as the case may be):

Under an order of this Court made on (date), in favour of (identify party),

YOU ARE DIRECTED to seize and sell the real property or immoveables and the personal property or movables within your jurisdiction of (full name of individual or corporation, etc.) and to realize from the seizure the following sums:

• (a) $ and interest at per cent per year beginning on (date);
• (b) $ for costs together with interest at per cent per year beginning on (date); and
• (c) your fees and expenses in enforcing this writ.

YOU ARE DIRECTED to pay out the proceeds according to law and to report on the execution of this writ if required by the party or solicitor who filed it.

(Include the following sentence if validity of writ was extended under subsection 437(2) of the Federal Courts Rules.)

THE VALIDITY OF THIS WRIT WAS EXTENDED on (date).

(Date)

Issued by:
(Registry Officer)

Address of local office:

This writ was issued at the request of, and inquiries may be directed to:

(Name, address, telephone and fax numbers of solicitor or party filing writ)

17 Forms 458A and 458B of the Rules are replaced by the following:

FORM 449A

Rule 449

Requisition for Notice of Garnishment

(General Heading – Use Form 66)

Requisition for Notice of Garnishment

TO THE ADMINISTRATOR:

I REQUIRE that a notice of garnishment, conforming to the attached Form 449B, be issued in this proceeding. The total amount to be shown in the notice of garnishment is $ , as follows:

• (a) $ for the debt owing or accruing under the order; and
• (b) $ for postjudgment interest accrued to date.

(Include a copy of the order for the payment of money and an affidavit containing the information required under subsection 449(2) of the Federal Courts Rules.)

(Date)

(Signature of solicitor or judgment creditor)

(Name, address, telephone and fax numbers of solicitor or judgment creditor)

FORM 449B

Rule 449

Notice of Garnishment

(Court File No.)

BETWEEN:

(name)

Judgment creditor

and

(name)

Judgment debtor

and

(name)

Garnishee

(Court seal)

Notice of Garnishment

TO : (name and address of garnishee)

A PROCEEDING in this Court between the judgment creditor and the judgment debtor has resulted in an order that the judgment debtor pay a sum of money to the judgment creditor. The judgment creditor claims that you owe a debt to the judgment debtor. The judgment creditor has requisitioned this notice of garnishment to be directed to you as garnishee in order to seize any debt that you owe or will owe to the judgment debtor.

WITHIN 21 DAYS after the day on which this notice is served on you, YOU ARE REQUIRED TO FILE WITH THE COURT AND SERVE ON THE JUDGMENT CREDITOR AND JUDGMENT DEBTOR named above a sworn declaration of garnishee, in Form 449C, that contains

• (a) a list of all debts owing or accruing to the judgment debtor; and
• (b) if you dispute liability to pay a debt claimed to be owing or accruing to the judgment debtor or claim the debt is for a lesser amount than that set out in this notice, any relevant information, including any supporting documents not contained in the requisition for notice of garnishment.

YOU SHALL NOT PAY THE JUDGMENT DEBTOR ANY AMOUNT of the debt without leave of the Court, except for the portion of wages or salary exempted under rule 452 of the Federal Courts Rules.

YOU ARE REQUIRED TO PAY INTO COURT the debt, or as much of the debt as is sufficient to satisfy the judgment, for each debt to which you admit liability, subject to the exemptions provided under rule 452 of the Federal Courts Rules. IF YOU DO NOT MAKE THIS PAYMENT AND DO NOT FILE A DECLARATION OF GARNISHEE IN FORM 449C, the Court may order you to pay the amount owing to the judgment creditor as if you were the judgment debtor.

EACH PAYMENT SHALL BE SENT by certified cheque or other bill of exchange for money in Canadian currency, payable to the Receiver General, with a copy of this notice to the Registry of the Court at the address shown below, and notice of payment shall be provided to the judgment creditor.

(Date)

Issued by :
(Registry Officer)

Address of local office:

Judgment creditor’s address	Judgment debtor’s address

FORM 449C

Rule 449

Declaration of Garnishee

(Court File No.)

BETWEEN:

(name)

Judgment creditor

and

(name)

Judgment debtor

and

(name)

Garnishee

Declaration of Garnishee

1 The garnishee, (insert name or names), admits that they owe or will owe the judgment debtor, or the judgment debtor and one or more co-owners, the amount of $  payable on (date), because (State reasons why you owe money to the judgment debtor. If you are making payment of less than the amount stated above, explain why. If you owe the judgment debtor wages or salary, state how often the judgment debtor is paid, the amount of the judgment debtor’s wages or salary before and after all deductions and attach a copy of a pay slip.)

2 The following is a list of all debts that the garnishee admits that they owe to the judgment debtor by reason of an obligation incurred on or before the day on which this declaration is made:

3 (If you dispute liability to pay a debt claimed to be owing or accruing to the judgment debtor or if you claim the debt is for a lesser amount than that set out in the notice of garnishment, explain why. Provide any relevant information, including any supporting documents not contained in the requisition for notice of garnishment.)

4 (If you have been served with any other notice of garnishment or a writ of execution against the judgment debtor, provide a copy of that document, the date of its service on you and the address of the issuing Court.)

(Date)

(Signature of solicitor or garnishee)

(Name, address, telephone and fax numbers of solicitor or garnishee)

FORM 458A

Rule 458

Interim Charging Order — Real Property or Immoveables

(General Heading — Use Form 66)

Interim Charging Order — Real Property or Immoveables

WHEREAS by a judgment (or order) made on (date) the defendant (or as the case may be) was ordered to pay to the plaintiff (or as the case may be) the sum of $ (amount) and $ (amount) in costs;

WHEREAS the sum of $ (amount) remains due and unpaid;

AND WHEREAS the defendant (or as the case may be) owns real property or immoveables, or holds an interest in the real property, including a beneficial interest, or holds an immoveable right or a claim to the immoveables, more particularly described in the schedule to this order;

IT IS ORDERED that unless sufficient reasons to the contrary are shown before the (date) at (time) when this matter will be further considered by the Court at (place), the defendant’s (or as the case may be) real property or immoveables, or their interest in the real property, including their beneficial interest, or their immoveable right or their claim to the immoveables, including their right or claim as a beneficiary under a trust or succession, shall — and it is ordered that in the meantime it does — stand charged with the payment of $ (amount) including any interest due on the judgment (or order) together with the costs of this motion.

(Signature of judge or prothonotary)

Schedule

(Describe, with full particulars, the relevant real property or immoveables, the relevant interest in real property or the relevant right or claim in the immoveables.)

FORM 458B

Rule 458

Interim Charging Order — Securities

(General Heading — Use Form 66)

Interim Charging Order — Securities

WHEREAS by a judgment (or order) made on (date) the defendant (or as the case may be) was ordered to pay to the plaintiff (or as the case may be) the sum of $ (amount) and $ (amount) in costs;

WHEREAS the sum of $ (amount) remains due and unpaid;

AND WHEREAS the defendant (or as the case may be) has an interest or right in the securities more particularly described in the schedule to this order;

IT IS ORDERED that unless sufficient reasons to the contrary are shown before (date), at (time) when this matter will be further considered by the Court at (place), the defendant’s (or as the case may be) interest or right in the securities, including any beneficial interest, to which the defendant (or as the case may be) is directly or indirectly entitled, shall — and it is ordered that in the meantime it does — stand charged with the payment of $ (amount) including any interest due on the judgment (or order) together with the costs of this motion.

(Signature of judge or prothonotary)

Schedule

(Describe, with full particulars, the relevant shares, bonds or other securities, stating their full title, their value and the name in which they stand and whether the right or beneficial interest charged is in the securities only or in the dividends or interest as well.)

Coming into Force

18 These Rules come into force on the day that, in the first month after the month in which they are registered, has the same calendar number as the day on which they are registered or, if that first month has no day with that number, the last day of that first month.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Rules.)

Issues

Amendments to the provisions of the Federal Courts Rules (“the Rules”) regarding enforcement of orders are necessary to address practical, procedural and legal issues.

Background

The Rules Committee of the Federal Court of Appeal and the Federal Court (the “Rules Committee”) is a statutory committee created under section 45.1 of the Federal Courts Act to make, amend, or revoke rules, subject to the approval of the Governor in Council. Pursuant to section 45.1 of the Federal Courts Act, the Rules Committee includes the Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court; three judges designated by the Chief Justice of the Federal Court of Appeal and five judges and one prothonotary designated by the Chief Justice of the Federal Court; the Chief Administrator of the Courts Administration Service; five members from the bar (designated by the Attorney General of Canada, after consultation with the Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court); and the Attorney General of Canada or a representative thereof.

The Rules Committee normally meets biannually to review amendment projects as well as proposals for amendment (though no meetings were held in 2017–2018 due to quorum issues). At the meeting held on May 11, 2012, it was agreed that a subcommittee be constituted to

• (a) identify provisions of the Rules that relate to enforcement of orders which may be causing practical, procedural or legal problems; and
• (b) recommend amendments to the Rules to resolve the problems with considerations of efficiency, consistency, access to justice and the sensible use of judicial resources in mind.

On November 9, 2012, the subcommittee presented to the Rules Committee a report regarding proposed amendments to the Rules regarding the enforcement of orders. The Rules Committee used the report to develop a discussion paper entitled, “Amendments to the Rules on Enforcement.” On July 17, 2013, this was circulated to members of the profession and posted on the website of the Federal Court of Appeal and of the Federal Court by way of initial consultation. Submissions were received from the Quebec Regional Office of the Department of Justice and the Advocates’ Society. Both of these submissions supported the recommendations made in the discussion paper and suggested a couple of minor modifications. As a result of its deliberations and consideration of the comments received in response to the discussion paper, the subcommittee recommended amendments to the enforcement provisions of the Rules. Drafting questions were addressed at meetings of the Rules Committee on May 29, 2015, June 3, 2016, and October 28, 2016, and then following the pause in the Rules Committee meetings noted above, an updated draft was endorsed at the Rules Committee’s meeting on November 29, 2019, and then prepublished on April 10, 2021, in the Canada Gazette, Part I. The public comments were reviewed by the Rules Committee at its meeting on June 18, 2021, and subject to the revisions as noted below, the Rules Amending the Federal Courts Rules (Enforcement) were then approved by the Rules Committee at its meeting on September 10, 2021.

Objective

The amendments to the Rules regarding the enforcement of orders address practical, procedural and legal difficulties with considerations of efficiency, consistency, access to justice and the sensible use of judicial resources.

Description

The amendments to the Rules are set out below:

• The process of writ renewal and the issuance of new writs are made an administrative procedure rather than a judicial one. (Rules 434 to 437)
  • The Rules required creditors to produce full-motion records for leave to renew or to issue new writs, usually brought ex parte. There are rarely any objections to the renewal of writs, and the extra time and expense by the creditor in filing another motion record and the time required for judicial involvement in this renewal process appears to be unnecessary.
• Rule 439(3) is amended by adding the words “any interested person” after the word “sheriff” so that both the creditor and the sheriff are permitted to seek directions from the Court concerning enforcement issues. [Rule 439(3)]
  • This rule is amended to also allow the creditor to seek directions from the Court. In Ontario, for example, the sheriff is sometimes dilatory in taking certain steps on behalf of a creditor, including bringing a motion for directions. For instance, with the sale of property, the sheriff is sometimes unsure as to how best to proceed and is reluctant to bring a motion. It is less costly for a creditor to have its own counsel file a motion for directions than to pay for the cost of the sheriff’s counsel to bring the motion. In addition, the creditor often has better background evidence on the debtor than the sheriff for a motion for directions.
• Garnishment procedures are made more administrative in nature (e.g. requisition by the party followed by issuance of a writ by the Registry upon certain conditions being fulfilled) rather than judicial (e.g. the show cause requirement). (Rules 425, 449 to 57)
  • This includes doing away with the show cause hearing and making the writ requisition an administrative rather than a judicial procedure to simplify the process and make it less costly.
• Rule 426 is extended to allow the examination of third parties with leave of the Court. (Rule 426)
  • Leave will have to be sought by way of a motion, and the same requirements as are set out in Rule 238(3) should firs t be satisfied. This change will provide a quicker method for obtaining relevant information on the debtor from third parties than issuing a requirement for information to third parties under the Income Tax Act and then resorting to a compliance motion under section 231.7 of that Act.
• In rule 458, the words “beneficial interest” are added in subparagraph 458(1)(a)(i). At the same time, consequential changes are required to address bijural drafting issues.
  • The language of rule 458 on charging orders has led to some confusion on its application: see Canada v. Malachowski 2011 FC 413. The words “beneficial interest” are used in subparagraphs 458(1)(a)(i) and 458(1)(a)(ii) so that the language clearly reflects a creditor’s ability to charge a debtor’s beneficial interest in all assets listed.
• The Rules are amended to allow for enforcement of domestic arbitral awards. (Rules 326 to 334)
  • The Rules are amended to make clear that they apply to a domestic arbitral award covered by subsection 5(2) of the Commercial Arbitration Act. Rule 326 references the Commercial Arbitration Act. Article 35 of the Commercial Arbitration Code, which is attached as a schedule to the Commercial Arbitration Act, appears to apply to an arbitral award made in Canada in a maritime matter or where Her Majesty in right of Canada, a departmental corporation or a Crown corporation is a party. The Code applies, for the most part, to arbitrations in Canada.
  • Rules 326 to 334 appear to be limited to a “foreign judgment” that includes an “arbitral award.” While it may be arguable that the reference to article 35 of the Code in the definition includes a domestic award, the language used throughout the Rules suggests otherwise. The Federal Courts Practice of 2011 suggested that “There is no provision for registering and enforcing arbitral awards made in Canada.” It would be useful from a practitioner’s perspective to be able to enforce a domestic maritime arbitration award through the Federal Court.
• Rule 326(a) is amended to reflect the renumbering of sections of a statute. [Rule 326(a)]
  • The reference to “sections 63 to 71 of the Marine Liability Act” in this paragraph is updated and amended to refer to “sections 80 to 89 of the Marine Liability Act.” Under the definition of “foreign judgment” in Rule 326(a), there is reference to sections 63 to 71 of the Marine Liability Act. The Marine Liability Act was amended in 2009, and the former sections 63 to 71 are now found at sections 80 to 89. The Rule is amended to identify this change, as the current sections 63 to 71 have nothing to do with obtaining or enforcing of an award or judgment.

Regulatory development

Consultation

On July 17, 2013, the Rules Committee circulated a discussion paper entitled “Amendments to the Rules on Enforcement” to members of the profession and posted it on the website of the Federal Court of Appeal and of the Federal Court by way of initial consultation. Submissions were received from the Quebec Regional Office of the Department of Justice and the Advocates’ Society. Both of these submissions supported the recommendations made in the discussion paper and suggested a couple of minor modifications. As a result of its deliberations and consideration of the comments received in response to the discussion paper, the subcommittee recommended these amendments to the enforcement provisions of the Rules. The proposed amendments were endorsed by the Rules Committee.

The Rules Amending the Federal Courts Rules were prepublished on April 10, 2021, in the Canada Gazette, Part I, followed by a 60-day comment period, in accordance with paragraph 46(4) of the Federal Courts Act. Comments were received from members of the profession in favour of the proposed amendments, subject to a few minor issues that can be summarized as follows:

• Comments related to Rule 426(3)(b) [English version only] — It is not clear whether the word “informally” modifies only “from the person to be examined” or whether it modifies the whole clause. If the latter, it should probably read: “unable to informally obtain that information.”
  • The Rules Committee determined that in the English version, the word “informally” should modify the whole clause, and so the Rule was amended accordingly.
• Comments related to Rule 437(3) regarding the extensions of writs — Under current rule 437(3), the existing writ is endorsed with a notice of the extension. Under the proposed rule 437(3), a new copy of the writ, bearing the date on which its validity was extended, is issued in Form 425A. There was a question as to whether this might create unintended priority consequences.
  • The Rules Committee noted that this issue is resolved by Rule 437(4), which addresses the effects of an extension:
    • (4) A writ the validity of which has been extended under subsection (2) continues without interruption.

In addition to addressing these comments, the Rules Committee also decided to change

• the title of the instrument (to add the qualifier “enforcement”);
• the coming in force date — the proposed amendments originally were set to come in force upon registration — instead, the date is changed to one month after registration in order to provide notice to stakeholders of the coming in force of the new Rules before they are in force;
• correction of a minor drafting error — namely, the new definition of “designated officer” for Part 12 of the Rules, as prepublished in the Canada Gazette, Part I, was not meant to affect the separate definition of “designated officer” already in force in Part 13 of the Rules.

Modern treaty obligations and Indigenous engagement and consultation

The amendments will have no impact on modern treaty obligations. The amendments are intended to improve the efficiency and consistency of the Rules with consideration to access to justice for all litigants in the Federal Court of Appeal and the Federal Court, including litigants who are First Nations, Métis, or Inuit.

Instrument choice

Pursuant to section 46 of the Federal Courts Act, the rules established by the Rules Committee, and codified in the Federal Courts Rules, regulate the practice and procedure in the Federal Court of Appeal and in the Federal Court. From time to time, the Chief Justices of the Federal Courts also enact practice directions to advise the profession on the interpretation of the Federal Courts Rules and to provide guidance on matters of practice that are not set out fully in the Rules. However, as between the Federal Courts Rules and practice directions, only the former are law. Furthermore, practice directions are not as visible and may be hard to find. For the current amendment proposal, it is therefore preferable to proceed by way of amendment to the Federal Courts Rules. This instrument provides

• a comprehensive process of notice and consultation with the public;
• a procedure that has the force of law; and
• a procedure that is transparent and easy to find, given that it is integrated into the Federal Courts Rules.

Regulatory analysis

Benefits and costs

The amendments to the Rules are the product of extensive work of a rules subcommittee that identified provisions of the Rules that may be causing practical, procedural or legal difficulties in the enforcement of orders, and recommended the modifications to the Rules provided above.

The amendments would improve access to justice before both the Federal Court of Appeal and the Federal Court, and would not unduly impact on other areas or sectors. It is expected that the benefits would be realized both by the judiciary and litigants with respect to the efficiency and consistency of the rules, access to justice, and the sensible use of judicial resources.

For example, for the renewal of a writ that has not been wholly executed, the moving party was required to file a full-motion record, following the procedure in Part 7 of the Rules, which takes additional time and cost to prepare, and which must then be sent to the Court for issuance of an order. Under the amendment, a simple administrative request would suffice, and could be processed more quickly by the Registry, as it would not need to be referred to the Court. For the litigant seeking to enforce a court order, the process would be more efficient, taking less time to prepare and without the need for a more costly motion record, and so reducing the overall cost of enforcement of the court order. The process would also reduce the burden on the Court, freeing up judicial resources for other files.

Although including numerous incremental process changes and efficiency improvements, the proposal is not expected to have any significant cost implications.

Small business lens

The proposal does not directly impact small businesses and is mainly intended to improve the efficiency of judicial operations, and thus the small business lens does not apply. However, small businesses may indirectly benefit from these improvements as users of judicial services.

One-for-one rule

The requirements of the Rules do not meet the definition of administrative burden as defined by the Red Tape Reduction Act and, therefore, the one-for-one rule does not apply.

Regulatory cooperation and alignment

The proposal is not related to a work plan or commitment under a formal regulatory cooperation forum. However, both domestic and international practice for the enforcement of court orders were considered during deliberations on the amendment proposals and the subsequent drafting process.

Strategic environmental assessment

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required.

Gender-based analysis plus

The amendments to the Rules are intended to improve their efficiency and consistency with consideration to access to justice for litigants in the Federal Court of Appeal and the Federal Court, including litigants who fall within the gender-based analysis plus (GBA+) analytic framework. No groups are expected to be disproportionately impacted by this proposal.

Implementation, compliance and enforcement, and service standards

The amended Rules will come into force one month after the day on which they are registered.

Contact

Andrew Baumberg
Secretary of the Rules Committee of the Federal Court of Appeal and the Federal Court
Ottawa, Ontario
K1A 0H9
Telephone: 613‑947‑3177
Fax: 613‑943‑0354
Email: Andrew.Baumberg@fct-cf.gc.ca