At the end of a court hearing, you will receive a court judgment. The judgement can be from the Provincial Court – Civil (also known as Small Claims Court), the Court of Queen’s Bench or Employment Standards. Upon receiving the Court Judgement, make copies and distribute them in the following way;
When you file your Judgment at the Court of Queen’s Bench, the clerk will stamp all the copies, register the Judgment, and provide you with a Court of Queen’s Bench action number. Once you receive this action number, send out a Demand Letter to the other party (debtor) and request payment of the amount provided in the Judgement.
If the other party has failed to respond to a demand to pay, file a Writ of Enforcement. Use the same Court of Queen’s Bench action number on the Writ of Enforcement. This notifies other creditors that you have a claim against that person.
The Writ of Enforcement forms are available online at the Alberta Courts website. Ensure that you have at least five copies of the Writ of Enforcement, and distribute them in the following way;
A person must obtain the services of a civil enforcement bailiff. The bailiff must work at a Civil Enforcement Agency. This agency will be responsible for entering the tenant’s residence or place of business and taking their personal property.
The Civil Enforcement Agency requires a letter of instruction from you before they can carry out the seizure. The letter must provide the following information;
The Civil Enforcement Agency will also require a copy of a Writ of Enforcement. The letter of instruction will likely ask you to indemnify the Civil Enforcement Agency against any claims that arise as a result of the seizure, such as in the event that goods are seized that should not be seized. You may ask the Civil Enforcement Agency to seize enough goods to satisfy all outstanding Writs of Enforcement, since any proceeds realized from the sale of seized, goods may have to be shared with other creditors.
The Civil Enforcement Agency should perform a search on the Personal Property Registry. This search ensures that there are no other secured creditors with claims against the assets. If there are other secured creditors, this may mean that the goods cannot be seized or that the money from the sale of the goods will go to the secured creditors.
The Civil Enforcement Agency may also require any of the following documents;
The debtor must be properly served with the Notice of Seizure (usually done by the Civil Enforcement Agency). The goods seized must be listed on the Notice of Seizure. The Notice of Seizure must be served by handing it to an adult at the premises.
Once served, if the goods have been left on a Bailee’s Undertaking and not removed from the property where they are seized, the person owing the money (the debtor) cannot remove or sell the goods. A Bailee’s Undertaking is a document that states that the debtor is to hold the goods and not remove or sell them. If the debtor does so, he/she could be charged with a criminal offence, under the Criminal Code or could be found in contempt of Court.
The Civil Enforcement bailiff may only go the debtor’s residence or place of business between 6:00 a.m. and 10:00 p.m. For residential premises or premises of someone other than the debtor, a Court Order to enter the premises is required if the debtor or other person does not cooperate. Once the Order is in place, the bailiff can employ a locksmith to pick the lock so as to cause no damage.
Some property is exempt from seizure and the Civil Enforcement Agency cannot seize it. The following property cannot be seized;
You should consult a lawyer, as seizure is more complicated than other methods of collection. If the wrong goods are seized or if you had no right to seize in the first place, you may be liable to pay the debtor for any damages or inconvenience caused.
The debtor has a right to object to the seizure within 15 days of being served. If there is no objection filed, the Civil Enforcement Agency may be instructed to remove and sell the goods. The goods must be sold by any commercially reasonable method. Both you and the debtor will be given 15 days notice of the method of sale.
If the debtor objects to the seizure, the Notice of Objection must provide reasons for objecting. For example, the debtor may object because they believe the goods are exempt. If the objections are not considered valid, ask the Court to give you permission to sell the seized goods. You should be prepared to present evidence in the form of a sworn Affidavit and argue against the reasons of objection.
Money received from the sale of the goods is divided among the creditors. Registrations against the debtor made at the Personal Property Registry will determine the total amount to be paid to all creditors. Costs of the seizure, moving costs, and the sale will be paid first. As the creditor who instructed the seizure, you will receive the first $2,000 in proceeds from the sale.
There are circumstances where property can be seized by a Civil Enforcement Agency without a Court Order or Judgment. If a person does not pay their rent, remedies for collection are provided under the law applicable to landlords’ seizures. Also where a person purchases goods or services under a security agreement and makes no payments, that person’s goods may be seized without going to Court or obtaining a Judgment or Order. For more information on these topics, listen to the Dial-A-Law topics available under the category Collections & Liens.