Enforcing Judgments: Not just a matter of being paid

So you have commenced a claim in court and successfully obtained judgment against the defendant. All that is left is for the defendant to pay you the amount of your judgment, right? Not exactly.

In Saskatchewan, as with each province in Canada, being successful in court and obtaining a judgment does not always mean you will recover the amount owed to you. Once you have a judgment, if the defendant, now a “judgment debtor”, does not voluntarily pay you, you will need to take steps to enforce the judgment. That can be a complicated, costly, and time consuming process but it is necessary if the judgment debtor will not pay you the amount owed. Through the enforcement process you may also learn that, while the judgment debtor does not have funds to pay you, there are assets that can be seized and sold to satisfy your judgment.

In Saskatchewan, The Enforcement of Money Judgments Act (the “EMJA”) establishes processes and rules for discovering assets, seizing assets, and distributing proceeds from the sale of these assets amongst various persons with judgments. Some of the actions that can be taken under the EMJA to enforce a judgment include:

• serving a questionnaire or examining the judgment debtor to discover the location of assets that can be seized;
• registering the judgment in government registries as an enforcement charge against specific assets (land, personal property); and
• giving enforcement instructions to the Sheriff to seize assets.

Not everything a judgment debtor owns can be seized. The EMJA also creates exemptions that judgment debtors may rely on to prevent the seizure of certain assets; for example, only a percentage or specific dollar amount of a judgment debtor’s employment income can be seized.

Given some of the challenges that may arise in enforcing judgments, it is important to ask several questions before even proceeding with a claim, including:

• Does the person or corporation I am suing have property in Saskatchewan?
• Are there existing judgments registered against the person or corporation I want to sue?
• Is there a risk the person or corporation I am suing may become insolvent or declare bankruptcy?

Various searches can be performed to help answer these questions, including land titles, personal property, judgment, and bankruptcy searches. Depending on the results of these searches and the answers to these questions, consideration should be given to the probability of recovering the amount of your judgment before a claim is even commenced.

As a result, a lawyer should be consulted at an early stage in the litigation process, not only to advise you on your claim, but also on the prospects of recovery if you are successful in obtaining judgment.

About the Author:

Graham is an associate in the Regina office. He enjoys practicing in many areas of the law and currently maintains a general practice.

About McKercher LLP:

McKercher LLP is one of Saskatchewan’s oldest and largest law firms with offices in Saskatoon and Regina. Our deep roots and client-first philosophy have made our firm rank in the top 5 in Saskatchewan by Canadian Lawyer magazine (2017). Integrity, experience and capacity provide innovative solutions for our clients’ diverse legal issues and complex business transactions.

This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances.  Counsel should be consulted concerning your own situation and any specific legal questions you may have.