ALBERTA RULES OF COURT PROJECT Enforcement of Judgments ...

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What use is a judicial system that purports to resolve a dispute if the
resolution it determines cannot be implemented effectively? Moreover, a
just and efficient enforcement system is necessary if credit is to
continue to play its fundamentally important role in the operation of our
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commercial system.
While the Institute was talking about money judgments, the proposition applies
equally to non-money judgments or orders. A legal system may go to great lengths to
reach a just solution to a dispute, but that effort will be worthless if there is no
effective, efficient and credible system of remedies to enforce the court’s decision.
One practitioner astutely observed that these problems are very important because they
involve “bread and butter issues” for parties and counsel alike.
B. A Remedial System Must be Fair, Appropriate and Reasonable for All
Parties
[4] While remedies must give successful litigants confidence in the process and a
reasonable hope of recovery, they must also protect the legitimate rights of the
unsuccessful party to fair and reasonable enforcement. Jack Beatson, in a recent paper
on English creditors’ remedies law, argues that remedies must conform to “the
principle of proportionality”, that is, drastic remedies should be used only “when less
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intrusive forms of enforcement ... have not worked or are not available.” Beatson
goes on to summarize four principles which the Scottish Law Commission applied to
the remedy of distress.
We agree.
The first of these is the rule of law requirement that where the law
confers a right on any person, it must also supply an effective
mechanism to make the right genuine and real in its practical effect.
Secondly, there is what the Commission terms the principle of least
coercion, broadly the equivalent of proportionality as described above.
Thirdly, there is what the Commission terms the principle of
appropriateness. This means that legal procedures should be designed to
achieve their objectives in as direct a manner as possible. Finally, there
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is the principle of effective enforcement.
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Ibid., vol. 1 at 21.
Beatson, supra note 1.
Ibid. at 11.