ALBERTA RULES OF COURT PROJECT Enforcement of Judgments ...

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4 G. The Rules Should Where Possible Aim for General Propositions Rather than a Series of Specific but Similar Situations [10] Some enforcement rules amount to examples or illustrations of a broader principle. There are two examples. 1. There are numerous rules about getting possession, control or delivery of personal property. These separate rules should be brought together and rationalized. The aim is to express the broad principle directly and clearly. 2. The new rules should include a list of possible remedial orders which a court may give against someone who acts contrary to or who disobeys a court order other than an order for the payment of money. The list would include but would not be limited to contempt. This idea is developed further in Chapter 13. H. Remedies Should as a General Rule be Immediately Available [11] Once a litigant has obtained a judgment, the remedies necessary to enforce that judgment should be immediately available. The rights of the parties have been settled. There should be no requirement that the successful litigant must go to court again to seek leave to issue remedies. This principle should not apply where the judgment itself says otherwise or where it is dangerous to permit enforcement without prior judicial scrutiny, for example, where immediate deployment of remedies will do a serious and irreparable injury to the unsuccessful litigant. I. Rules Dealing with a Subject Governed by a Statute Should Where Appropriate be Moved into the Statute or Regulation Thereunder [12] Under this heading, we are thinking particularly of the Civil Enforcement Act 8 but there are other examples. Many rules are confined to issues governed and regulated by a statute. In all such cases, we should consider moving the rule into the statute or into regulations created under the statute. 1. If the law is concentrated in one place, it is more likely to be coherent and integrated. Dividing the law of creditors’ remedies between the Civil 8 R.S.A. 2000, c. C-15.
5 Enforcement Act and The Rules leads to repetition, confusion and direct conflict. These flaws can be largely eliminated if rules which are part of the scheme of enforcement of money judgments are moved into the Act or the Civil Enforcement Regulation. 9 2. The present system of civil enforcement involves the researcher in a lengthy voyage from the Act to The Rules and back. Putting the law in one place makes the job of the researcher easier and therefore less expensive and uncertain. However, a rule which applies to more than one remedy or statute likely has to remain in the rules. 3. In most cases, rules will be moved into the Civil Enforcement Regulation rather than the Act. The Rules at present are largely, although not entirely, procedural 10 rather than substantive. Procedural rules require frequent amendment which is easier for regulations rather than statutes. Still, the regulations pursuant to an act are more likely to be drafted in harmony with their parent legislation. 9 10 8. Alta. Reg. 276/95. Some of the present rules are substantive and should be placed in the Civil Enforcement Act, supra note
Page 1: ALBERTA LAW REFORM INSTITUTE EDMONT
Page 4 and 5: A reader who wishes to have more in
Page 7: ALBERTA LAW REFORM INSTITUTE The Al
Page 10 and 11: Alberta Law Reform Institute 402 La
Page 12 and 13: CHAPTER 5. LIMITATIONS AND ENFORCEM
Page 15 and 16: EXECUTIVE SUMMARY 1. MANDATE OF COM
Page 17 and 18: should consider moving the rule int
Page 19 and 20: trial and judgment - At present The
Page 21: Alberta, promulgated Winding-up Act
Page 24 and 25: ISSUE No. 10 Should Rule 352 be rep
Page 26 and 27: ISSUE No. 29 Should the defendant b
Page 28 and 29: ISSUE No. 51 Should the court be em
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Page 33: 3 C. The Present Enforcement Rules
Page 38 and 39: 8 14 described some of these confli
Page 40 and 41: 10 which will result in ongoing pro
Page 42 and 43: 12 [26] The committee thought that
Page 44 and 45: 14 under the Civil Enforcement Act,
Page 46 and 47: 16 POSITION OF THE COMMITTEE [40] T
Page 48 and 49: 18 [48] Rule 350 provides that a pe
Page 50 and 51: 20 addressee actually gets it or on
Page 52 and 53: 22 ISSUE No. 13 Should Rules 381, 3
Page 54 and 55: 24 [69] The committee looked at Rul
Page 56 and 57: 26 the defendant or note the defend
Page 58 and 59: 28 one would expect the ban to exte
Page 60 and 61: 30 [85] In all other situations, ju
Page 62 and 63: 32 preferences is archaic, confused
Page 64 and 65: 34 ISSUE No. 20 Should Rule 345, wh
Page 67 and 68: CHAPTER 4. ENFORCEMENT AGAINST A PA
Page 69 and 70: 39 bringing individual partners int
Page 71 and 72: CHAPTER 5. LIMITATIONS AND ENFORCEM
Page 73 and 74: 68 period against the action on a j
Page 75 and 76: 45 2. A similar provision applies t
Page 77: has obtained a new judgment by acti
Page 80 and 81: 50 Replevin is a pre-trial remedy t
Page 82 and 83: 52 should the order be required to
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54 as the court considers appropria
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56 [154] The committee proposes tha
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58 POSITION OF THE COMMITTEE [161]
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62 ISSUE No. 36 Should interpleader
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64 (a) claims no beneficial interes
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66 [188] Other Canadian rules have
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CHAPTER 8. RECEIVER: RULES 463 TO 4
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acts mentioned unless the court ord
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74 (b) make any order for the inspe
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76 [210] The courts are well aware
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78 that the discovery and preservat
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80 or rule of law “not inconsiste
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82 subrule is not available to some
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84 to pay in the amount of the lien
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88 including Alberta. The remedy is
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90 some expense. One conclusion is
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92 similarly titled part of the Ont
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94 injunction, the effect of which
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96 [270] The committee also discuss
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98 personalty. Rule 363 is usually
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100 different set of statutes and r
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102 [283] While the expressions may
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104 [289] Instead of having a confr
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106 [295] Rule 365 provides that, i
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CHAPTER 14. WINDING-UP AND RESTRUCT
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111 [306] We noted above that the W
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113 4. The federal government has n
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116 consider favourably an extensio
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118 [316] There is much case law at
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120 “judgment” means a decision
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122 172 manner as a judgment of the
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124 claims and judgments, or to non
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126 Rule Numbers in Present Rules D
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APPENDIX B Alberta Rule Nos. Subjec
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ALBERTA RULES OF COURT PROJECT Enforcement of Judgments ...

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