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Writ of Seizure and Sale of Personal Property: The Imposing of Financial Interest Rights for Favour of a Creditor
Question: How can I enforce a judgment for unpaid debts through the Writ of Seizure and Sale of Personal Property?
Answer: The Writ of Seizure and Sale (Form 20C) allows creditors to seize and sell a debtor's personal assets to satisfy a judgment, making it a powerful tool for debt recovery. Ensure you prepare accurate documentation to avoid delays in enforcement. For expert guidance throughout the process, reach out for assistance.
Registering Financial Interest Upon Chattels
A Creditor may use a Writ of Seizure and Sale of Personal Property (Form 20C) as a tool available for enforcing a Judgment within the Small Claims Court. The Writ of Seizure and Sale of Personal Property (Form 20C) directs an enforcement officer, such as a Sheriff or a Bailiff, to seize and sell the personal property of a Debtor as the means to satisfy the amount owing under a Judgment. The Writ of Seizure and Sale of Personal Property (Form 20C) is particularly useful when monetary compensation is required, and the Debtor has personal assets that can be liquidated to meet the monetary compensation obligation per the Judgment.
With respect to the Writ of Seizure and Sale of Personal Property (Form 20C), the Rules of the Small Claims Court, O. Reg. 258/98, state:
Writ of Seizure and Sale of Personal Property
20.06 (1) If there is default under an order for the payment or recovery of money, the clerk shall, at the creditor’s request, supported by an affidavit for enforcement request (Form 20P) stating the amount still owing, issue to a bailiff a writ of seizure and sale of personal property (Form 20C), and the bailiff shall enforce the writ for the amount owing, postjudgment interest and the bailiff’s fees and expenses.
(1.1) If more than six years have passed since the order was made, a writ of seizure and sale of personal property may be issued only with leave of the court.
(1.2) If a writ of seizure and sale of personal property is not issued within one year after the date on which an order granting leave to issue it is made,
(a) the order granting leave ceases to have effect; and
(b) a writ of seizure and sale of personal property may be issued only with leave of the court on a subsequent motion.
(1.3) A writ of seizure and sale of personal property shall show the creditor’s name, address and telephone number and the name, address and telephone number of the creditor’s representative, if any.
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Direction to Enforce
(4) The creditor may request enforcement of a writ of seizure and sale of personal property by filing a direction to enforce writ of seizure and sale of personal property (Form 20O) with the bailiff.
Inventory of Property Seized
(5) Within a reasonable time after a request is made by the debtor or someone acting on the debtor’s authority, the bailiff shall deliver an inventory of personal property seized under a writ of seizure and sale of personal property.
Sale of Personal Property
(6) Personal property seized under a writ of seizure and sale of personal property shall not be sold by the bailiff unless notice of the time and place of sale has been,
(a) mailed, at least 10 days before the sale,
(i) to the creditor at the address shown on the writ, or to the creditor’s representative, and
(ii) to the debtor at the debtor’s last known address; and
(b) advertised in a manner that is likely to bring it to the attention of the public.
Starting the Process
The process may begin, per Rule 20.06(1) of the Rules of the Small Claims Court, “If there is default under an order for the payment or recovery of money …”; and if so, the Creditor may prepare and file the Writ of Seizure and Sale of Personal Property (Form 20C) along with the Affidavit for Enforcement Request (Form 20P) within the Small Claims Court of jurisdiction where the personal assets of the Debtor are located. Preparing and filing the Writ of Seizure and Sale of Personal Property (Form 20C) document requires careful attention to detail. The documents must be accurate, and it is crucial to ensure that all required information is included to avoid delays. Once the proper documents are filed, the enforcement officer will receive instructions to locate and seize the personal property of the Debtor.
Types of Personal Property Available for Seizure
It is important to have a property seizure strategy that considers the value of the assets being seized and the costs involved, thereby helping to ensure that the Writ of Seizure and Sale (Form 20C) process remains viable. Examples of personal property that may be seized include vehicles, equipment, and other valuable assets of the Debtor.
Interestingly, valuable assets of the Debtor may include investments such as mutual funds, RRSPs, etc. Unlike bank accounts as monies owed by a bank as a debt to a Debtor, financial instruments are viewed as an asset rather than as a debt; and accordingly, enforcement targeting financial instruments should be via Writ of Seizure and Sale of Personal Property (Form 20C) process rather than via a garnishment process. The proper use being the Writ process rather than a garnishment process was confirmed in the case of Collins Barrow Leamington LLP v. Tiessen, 2014 CanLII 72252, wherein the Court commented that a garnishment process was improperly used in effort to seize RRSP funds whereas RRSP funds are personal property and should be pursued via the Writ process. Specifically, the Court said:
61. Oddly enough, the Garnishee relies on the procedural technicality of the Creditor’s improper attempt to seize the RRSP by garnishment rather than by writ of execution, but then asks the Court to overlook its procedural shortcoming in failing to file a Garnishee’s Statement pursuant to the Rules.
62. It is not as if the Garnishee did not know better, it is a financial institution. Garnishee’s Statements were filed in response to 2 out of 3 Notices of Garnishment. While it may not be the place or obligation of the Garnishee to advise or assist a Creditor with how to effect a seizure, a proper and meaningful Garnishee’s Statement may have alerted the Creditor of the ineffectiveness or inappropriateness of the Notice of Garnishment which may have prompted the Creditor to issue and execute a Writ of Seizure and Sale of Personal Property prior to the bankruptcy of the Judgment Debtor which occurred 6 months later. The failure to file a meaningful Garnishee’s Statement therefore may have prejudiced the Creditor in its efforts to collect on the Judgment.
Types of Personal Property Statutorily Exempted
Certain types of personal property are exempt from seizure under the Writ of Seizure and Sale of Personal Property (Form 20C) process. Accordingly, it is necessary to keep aware of the exemptions so to ensure that enforcement actions are compliant with the law regarding what assets may be pursued to satisfy the Judgment. Exemptions include basic household furnishings and appliances that are necessary for the Debtor and family members of the Debtor. Furthermore, clothing, tools and equipment up to a prescribed value and as essential for the trade or occupation of the Debtor, and a motor vehicle up to a prescribed value and provided that the vehicle is essential for the work of the Debtor, are exempt from seizure. Additionally, any items that are assistive with a disability condition, a medical condition, or a dental condition, as suffered by the Debtor or the dependants of the Debtor are also exempt.
For the specific details of the exemptions including applicable limits, reference must be made to the Execution Act, R.S.O. 1990, c. E.24, as well as the applicable regulations thereto. Additionally, whereas the specific limits are subject to change, it is prudent to regularly revisit and review the applicable limits.
Direction to Enforce
Further to the Writ of Seizure and Sale of Personal Property (Form 20C), it is also necessary to review and appreciate the related process involving the Direction to Enforce Writ of Seizure and Sale of Personal Property (Form 20O) as the required documentation for providing specific instructions to a Sheriff or Bailiff. For information about this process, see:
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Conclusion
The Writ of Seizure and Sale of Personal Property (Form 20C) procedure may be available as an effective tool for the enforcement of a Judgment. Whereas the process can be somewhat complicated and requires careful review of the types and values of property that may be targeted as well as crucial accuracy in details within the necessary documentation, professional assistance in preparing and submitting the required forms is highly encouraged.
