Supreme Court

SC CW'ln o\̂ ' IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES I IN THE MATTER OF an Application by the Sheriff of the Northwest Territories for directions

- and -IN THE MATTER OF the Creditors Relief Ordinance, being chapter c-22. Revised Ordinances of the Northwest Territories, 1974 - and -IN THE MATTER OF a Writ of Execution en­titled in the Magistrate's Court of the Northwest Territories betv/een Argus Insurance Services Limited, Plaintiff, and Canadian Arctic Development Limited, Defendant, and issued 10 September 1974

BETWEEN ROGER MOORE in his capacity as Sheriff of the Northwest Territories,

\ Applicant - and -ARGUS INSURANCE SERVICES LIMITED, a body corporate

Respondent

Application by the Sheriff for Direction Heard at Yello*;knife November 7, 1977 Reasons for Judgment filed November 15, 1977 Questions answered in the negative

Reasons for Judgment by: The Honourable Mr. Justice C, F. Tallis Counsel: A. Brien, for the Applicant, Sheriff I W. Stefura, for the Respondent ^

> I^ THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER of an Application by the Sheriff of the Northwest Terri­tories for directions

- and -IN THE MATTER of the Creditors Relief Ordinance, being chapter c-22. Revised Ordinances of the Northwest Territories, 1974 - and -IN THE MATTER of a Writ of Execution entitled in the Magistrate's Court of the Northwest Territories between Argus Insurance Services Limited, Plaintiff, and Canadian Arctic Development Limited, Defendant, and issued 10 September 1974

BETWEEN; \

ROGER MOORE in his capacity as Sheriff of the Northwest Territories,

- and -

ARGUS INSURANCE SERVICES LIMITED, a body corporate

Respondent Counsel: ' A. Brien, for the Applicant W. Stefura, for the Respondent REASONS FOR JUDGMENT OF THE HONOURABLE MR, JUSTICE C, F. TALLIS

This is an application on behalf of the Applicant \ Roger Moore in his capacity as Sheriff of the Northv;est Territories

Applicant

mztm - 2 ­for dii^ection on the following questions in relation to a certain Writ^of Execution entitled "In the Magistrate's Court of the Northwest Territories between Argus Insurance Services Limited as Plaintiff and Canadian Arctic Development Limited as defendant: 1. Should the Sheriff receive the written statement from the judgment creditor of the amount payable on the writ of execution issued in the cited action and make the memorandum required by the Creditors Relief Ordinance! 2. Should the Sheriff record and treat the said writ as subsisting?

3. Is the Sheriff ever required to record or treat a writ of execution as sub-I sisting, after having been directed to disregard same pursuant to section 27 of the Ordinance? The affidavit evidence in support of the appli­cation consists of the affidavit of the Applicant Roger Moore which reads as follows: "I, Roger Moore of the City of Yellowknife in the Northwest Territories, Sheriff of the Northwest Territories, MAKE OATH AND SAYi.

1. THAT I am the applicant in the within application;

2. THAT a writ of execution entitled In the Magistrate's Court of the Northwest Territories, between Argus Insurance Services Limited, Plaintiff, and Canadian Arctic Development Limited, Defendant, issued the 10th day of I September, 1974, as MC 2483 was received in the Sheriff's Office, Yellowknife on the 10 September 1974 and designated by the number 1378/74.

- 3 -> A true copy of the said writ is an­nexed hereto and marked "Exhibit A";

THAT on the 5th day o f October, 1976 a statement described as a "Renewal Statement" and dated the 24 September 1976, was received at the Sheriff's Office, Yellowknife, from Purdy & Associates as agents for Argus In­surance Services Limi ted a true copy of which Statement is annexed hereto and marked "Exhibit B THAT on receipt of the statement "Exhibit B", I annexed to the writ "Exhibit A" a copy of which is annexed hereto and marked "Exhibit C" and that I recorded the writ of execution as a subsisting execution;

THAT on the 2 0th day of October, 1977, a statement described as a "Renewal Statement" and dated the 19 October 1977, I was received at the Sheriff's Office, Yellowknife, from Ayotte, Cooper, Geldreich, Johnson & Stefura as agents for Argus Insurance Services Limited a true copy of which statement is annexed hereto and marked "Exhibit D";

THAT the question arises in consideration of section 26 and 27 of the Creditors Re­lief Ordinance whether I war; required or permitted, after delivery of the statement "Exhibit B" , and whether I c.m required or permitted, after delivery or the statement "Exhibit D" to record the writ of ex­ecution as a subsisting execution.

THAT, notwithstanding the pa st practice of the Sheriff, which past p ractice has been to consider writs of ex ecution as valid and subsisting for the- life of the judgment and to continue to record the writs as such on receipt of iiotices un­der section 26 and 27 of the Ordinance at any time during the life of the judg-ment, I now seek direction a •; to whether I the Sheriff is required or p ;;rmitted to

I - 4 ­record or treat a writ of execution as subsisting, at any time after, by section 27, he has been directed to disregard same;

8. THAT I make this affidavit to set out the facts leading up to the question referred to in paragraph 6, in support of an application for direction pursuant to section 38 of the Creditors Relief Ordinance." From the foregoing it will be seen that this appli­cation involves a consideration of sections 26 and 27 of the Creditors Relief Ordinance, R,0.N.W.T. 1974, chapter C-22. These sections provide as follows: "26. (1) Where I (a) an execution creditor (i) receives any payment of money on account of an execution debt,

(ii) receives anything by way of satisfaction, either wholly or in part, of an execution debt, or

(iii) enters into an agreement whereby pro­ceedings under a writ of execution are to be stayed or suspended, or

(b) an order is made staying the execution, the execution creditor shall immediately thereafter deliver to the Sheriff a notice in writing setting out each such payment, satisfaction or agreement, or certified copy of the staying order, as the case may be.

(2) The Sheriff, upon the receipt of a notice delivered to him under subsection (1), shall enter in the book referred to in section 25 a memorandum of the notice together with the date of its receipt and shall keep the notice on file.

\

I - 5 -"27. (1) The Sheriff shall disregard every writ 1 of execution that is in his hands, (a) after the expiration of the period of one year from the time of the delivery of the writ of execution to him; or

(b) after the expiration of the period of one year (i) from the date of the delivery of the last notice made pursuant to section 26 with respect to the execution, or

(ii) after the delivery to him of a notice in writing by the creditor or his agent setting out the amount leviable under the writ of execution,

(2) Each writ that the Sheriff by this section is directed to disregard shall be deemed not to be a subsisting execution, I (3) The Sheriff upon receipt of any notice re­ferred to in this section shall make an entry with respect thereto as if it were a notice given under section 2 6."

The underlining is mine. On this particular application counsel for the Applicant and the Respondent were in agreement that the present Rules of Court are of no assistance in deciding this issue. The application therefore involves a consideration of the provisions of sections 26 and 27 of the Creditors Relief Ordinance, R.O.N.W.T. 1974, chapter C-22, The facts giving rise to this application are not in dispute and may be summarized as follows: I

I - 6 -(a) A Writ of Execution was issued on September 10, 1974 and received in the Sheriff's office on the same date. The judgment on which the Writ of Execution was issued was in full force and effect and still continues to be in full force and effect,

(b) On October 5, 1976 a statement was filed in the Sheriff's office in ac­cordance with the provisions of Sections 26 and 27 of the Creditors Relief Ordinance and the applicant Sheriff accordingly noted the Writ as renewed.

(c) On October 20, 1977 the Respondent creditor purported to deliver a state­ment in compliance with the Creditors Relief Ordinance which stated as follows:

' CREDITOR'S RELIEF ORDINANCE I TO: THE SHERIFF OF THE NORTHWEST TERRITORIES RENEWAL STATEMENT There is file in your office under the MAGIS-TRATE'S COURT of the Northwest Territories, Action #MC 24 83, under # 1378/74 (Writ) in which

ARGUS INSURANCE SERVICES LIMITED Is Execution Creditor - and -(?ANADIAN ARCTIC DEVELOPMENT LTD. Is Execution Debtor The amount leviable thereunder at this date is as followed:

I

- 7 -• "Judgment debt (including interest and costs to Judgment): $580.00 Interest on the Judgment balance from 10 September, 1974 at 5% per annum to 24 September, 1976: 58.00 Interest on the Judgment balance from 25 September 1976 at 5% per annum to 19 October 1977: 58.00 For this Renewal Statement 5,00 TOTAL LEVIABLE AS AT October 19, 1977 $701.00 Dated at the City of Yellowknife in the Northwest Territories this 19th day of October A.D,, 1977.

Ayotte, Cooper, Geldreich, Johnson & Stefura Per: "W. Stefura" As agents for the Judgment Creditor' (d) As a consequence of the filing of the statement described in "c" above the Applicant Sheriff seeks the direction of this Court. Counsel for the Applicant submits that section 27(3) of the Creditors Relief Ordinance only places an obligation on the Sheriff to make an entry v/here the writ is subsisting and pointed out that section 27(2) specifically provides that each writ that the Sheriff by this section is directed to disregard shall be deemed not to be a subsisting writ. Counsel for the Respondent contends that the Court should construe section 27 of the Creditors Relief Ordinance in such a manner that upon the filing of a statement by the creditor, even though out of time, revives the Writ of Execution and re­quires the Sheriff to make the appropriate entry under section 27(3).

- 8 -In considering this matter I have carefully re­viewed the principles enunciated in the following judgments: Wagenstein v. Graham (1954) 4 D.L.R, 540 (CA,); Grant v. Treadgold (1906) 4 W,L,R. 173 (C.A.). Applying the principles enunciated in these cases I am of the opinion that the words shall be deemed not to be a subsisting execution in section 27(2) put an end to the effectiveness of the v;rit of execution and con­clusively establish that the writ of execution ceases to be a subsisting writ of execution. After giving very careful consideration to the sub­missions that have been made on this application I have concluded that the issues raised must be answered as follows: 1. Should the Sheriff receive the written statement from the judg­ment creditor of the amount payable on the v/rit of execution issued in the cited action and make the memorandum required by the Creditors Relief Ordinance! i Answer: No. 2. Should the Sheriff record and treat the said writ as subsisting? f Answer: No.

3. Is the Sheriff ever required to record or treat a writ of execution as sub-sisting, after having been directed

to disregard same pursuant to section 27 of the Ordinance?

Answer: No, In answering the questions that have been submitted ^^ to this Court for consideration I would point out that my decision

- 9 ­does not fireclude a creditor from issuing a new writ of execution on a jî dgment which is still in full force and effect. In this jurisdiction most judgments remain in full force and effect for a period of 10 years from the date of judgment. Under the circum­stances it might be appropriate to give consideration to an amend­ment to sections 26 and 27 of the Creditors Relief Ordinance to provide that every writ of execution issued on a judgment or order shall remain in force for the duration of that judgment, 'in this jurisdiction we do not have judicial centres or judicial districts and consequently there is only one Sheriff's office and one Land Titles Office involved in this aspect of enforcement of judgment creditor's rights. If such an amendment were introduced unnecessary administrative details both for the solicitors of the judgment creditors and Court and Land Titles staff could be kept to a minimum. I make no order as to costs. Dated at Yellowknife, Northwest Territories this 15th day of November, 1977.

C. F. Tallis, J.S.C. ^ ^

NO. SC 4090 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

IN THE MATTER of an Application by 'A Sheriff of the Northwest Territories^ for directions - and -IN THE MATTER of the Creditors Relief Ordinance^ oeing chapter c-22. Revised T)rdinances of the Northwest Territorie 1974 - and -IN THE MATTER of a Writ of Execution entitled in the Magistrate's Court of the Northwest Territories between Argi Insurance Services Limited, Plaintiff, and Canadian Arctic Development Liraite* Defendant, and issued 10 September ITi

i BETWEEN: ROGER MOORE in his capacity ^ as Sheriff of the Northwest Territories, I Applicant

- and -ARGUS INSURANCE SERVICES LIMITED, a body corporate, Respondent

REASONS FOR JUDGMENT OF THE HONOUPAE MR. JUSTICE C. F. TALLIS Jk