CANADA Trends and Developments Contributed by: Carey Veinotte, Bojm Funt & Gibbons
ness addresses, the location of banks and investment firms, etc. There are also skip tracing firms. Creditable skip trac - ing firms such as In-House Receivable Services (IRS Collections) can locate persons or firms who have “skipped”. In British Columbia, enforcement of court orders is governed by the Court Order Enforcement Act, RSBC 1993, Chapter 76 (COEA). The COEA has long been regarded as relatively toothless and is currently under - going substantial revisions. Pre-judgment garnishing The COEA is relatively unique in North America in that, under certain circumstances, it allows a litigant to gar - nish their opponents’ funds prior to any hearing on the merits. Garnishing orders before judgment and after judgment are the most common. In summary, the following requirements must be met to garnish a debtor prior to judgment. • The claim must be for debt or a “sum certain” – ie, a liquidated claim. Garnishment upon uncertain claims or claims relying on equity will generally be rejected. • The target of the garnishing order is the opponent, or any third party that may owe a financial obliga - tion to the opponent. This is usually a bank or an employer (although there is a stricture against gar - Domestic Judgments Pre-judgment steps nishing more than 30% of the target’s wages). • Good practice requires an affidavit from a repre - sentative of the client, describing the claim in suf - ficient detail that the registrar can easily determine whether the amount sought to be garnished is for a debt or a liquidated sum. • Desk orders – the materials should be put together in good order, and submitted at the Registry. Registrars in BC are becoming increasingly strict about approving garnishing orders. The standard of compliance with the COEA is “meticulous”, although the saying “meticulous, not ridiculous” is an apt retort.
• When a bank or lender receives a valid garnish - ing order, they have no discretion: it is a valid and enforceable court order and they disobey on pain of contempt. They must pay the face value of the garnishing order into the court registry within seven days of service of the order. • Garnishing orders are frequently attacked. The most common lines of attack are that: (a) the order is flawed as the claim itself is not really for a debt or liquidated sum; (b) compliance with the rule was not “meticulous” – ie, there is a procedural defect; and (c) regardless of merits, the garnishing order is causing the target hardship. Certificates of Pending Litigation (CPLs) The underlying claim must be pled in such a way that the plaintiff claims an interest in the lands, usually a property, and that it has a prima facie claim to all or part of the land itself. Just as with garnishing orders, CPLs are desk orders (ie, granted by a registrar without a hearing), and good practice is to support the application with an affidavit from a knowledgeable person with the client. If granted, the CPL is lodged in the LTO against the title of the opponent’s property. The opponent cannot move the property with its title encumbered without at least paying the full amount of the CPL into the court registry. Furthermore, the target cannot access any equity in the property to, for example, pay its legal fees. CPLs are frequently attacked by the opponent on grounds similar to challenging a pre-judgment gar - nishing order – the crux of the plaintiff’s claim does not really seek an interest in land and/or there are proce - dural defects in the application. Mareva injunctions Mareva injunctions are a growing area of the law. To do the jurisprudence justice would be an article on its own. Or a second-year law school class. In short, a Mareva injunction ties up or freezes the target’s assets in the jurisdiction on the basis of the applicant successfully demonstrating a prima facie
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