ALBERTA RULES OF COURT PROJECT Enforcement of Judgments ...

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16 POSITION OF THE COMMITTEE [40] The rule seems to state the obvious. However, the committee noted that the rule includes “taxable” costs rather than “taxed” costs. If the rule is repealed an enforcement debtor may refuse to acknowledge liability for costs unless and until they are taxed. The judgment creditor may receive payments directly from the debtor which do not go through a distributing authority, and an unscrupulous creditor may try to exclude these payments from the amount owing on a writ absent a section like this. The committee concluded that Rule 348 should be retained but moved to the Civil Enforcement Act or the Civil Enforcement Regulation. ISSUE No. 8 Should Rules 349, 349.1 and 351 on the power of the clerk and the court to make changes in writs of enforcement be retained and moved to the Civil Enforcement Act? [41] These rules empower the clerk (in Rules 349 and 349.1) and the court (in Rule 351) to make major and minor changes to writs of enforcement. None of the rules empower changes to judgments. [42] The present Rule 349 provides that, where the name (apparently of the creditor only) shown on a judgment or writ is incorrect or has changed, the clerk may alter the writ. Rule 349.1 empowers the clerk to correct clerical errors on a writ without limit. Rule 349.1 was added to The Rules in 1996. Stevenson and Côté comment: “Before this Rule, it was doubtful whether any one could correct a writ of enforcement, yet 25 minor errors in names often hamper effective enforcement.” [43] Rule 351 empowers the court (not the clerk) to do several things: 1. Issue a writ showing the debtor’s (but not the creditor’s?) proper name where the debtor’s name is misstated in the judgment. This power would appear not to extend to the case where the judgment got the debtor’s name right but the writ got it wrong. 25 The Honourable W.A. Stevenson & The Honourable J.E. Côté, Alberta Civil Procedure Handbook 2004 (Edmonton, Alberta: Juriliber, 2004) at 305 [Civil Procedure Handbook].
17 2. Order “a change” (apparently any change) to a writ. 3. Order a new writ to be issued. 4. Direct an issue. One may wonder if the last three sweeping powers enable the judge to do what they cannot do under the first power? [44] Edmonton and Calgary practice differs as to the clerks’ willingness to make changes without a fiat. Clerks are often reluctant to make any change of their own accord, no matter how minor. The Clerks’ Manual limits clerks to correcting very basic typos, while referring all others to a master for action. POSITION OF THE COMMITTEE [45] The central issue is what changes should the clerk be empowered to make to the writ and what changes should be reserved to the court. In our view, the court should have a plenary jurisdiction to make changes in the writ. [46] As to the clerk’s power to amend writs, we agree that there is a need for a mechanism to fix quickly small errors in writs. In our view, the clerk’s power to make changes should be restricted to situations where the writ spells a word differently from the judgment. In this narrow area, the clerk should be able to correct the writ to make it follow the judgment. Otherwise, the applicant should be required to go to the court. [47] We suggest that Rule 349 be repealed. Rule 349.1, as amended above, should be retained and moved to the Civil Enforcement Act or the Civil Enforcement Regulation. The drafter of the new Rule 349.1 should avoid the ambiguous expression “clerical error.” The intention is to make the clerk’s jurisdiction simple, clear and narrow. Rule 351 should be retained with the addition that the motion may be made ex parte unless the court orders otherwise. The new Rule 351 should be stripped of the restrictive language in the present rule. The new rule should be moved to the Civil Enforcement Act or the Regulation. ISSUE No. 9 Should Rule 350 on assignment and resulting amendments of writs be retained?
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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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86 POSITION OF THE COMMITTEE [243]
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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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