)THE SHERIFF'S OFFICE

William Siemens, Sheriff,Sheriff's Office

Saskatchewan JusticeCourt House

2425 Victoria AvenueRegina, Saskatchewan

S4P 3V7

THE SHERIFF'S OFFICE

I. BRIEF HISTORY OF THE OFFICE OF THE SHERIFF

II. WHAT A SHERIFF'S OFFICE REQUIRES PRIOR TO ACTINGFOR A JUDGMENT CREDITOR 2

III. EFFECT OF A WRIT 3

IV. PROCEDURE TO REGISTER "GOODS ONLY"WRIT WITH SHERIFF 4

V. FEES FOR REGISTRATION OF GOODS AND LANDS WRITS 6

VI. FORM OF QUEEN'S BENCH WRIT 7

VII. DISCHARGE OR WITHDRAWAL OF A WRIT 8

VIII. EFFECT OF BANKRUPTCY 9

IX. PARTIAL WITHDRAWALS - NEW PROCEDURE 10

X. GUARANTEE OF COSTS AND INDEMNITY 11

APPENDIX A - Process for Registering andEnforcing Writ of Execution 13

APPENDIX B - Certificate 17

APPENDIX C - Indemnification 18

)

BRIEF HISTORY OF THE OFFICE OF THE SHERIFF

A good deal of difference exists between the Office of the Sheriff as we

know it to-day in the Province of Saskatchewan and as it was in England

some eight centuries ago. The power and authority developed over the

last one thousand years of English history are still evident to-day and

relate directly to what evolved in Fuedal times.

The word 'Sheriff' originates from the Anglo-Saxon word 'shire-reeve ' mean­

ing bailiff or manager of the Shire, that being a geographical unit of

government used in England. Apart from Kingship, the office of the Sheriff

is the oldest secular office on record dating back to the 11th century.

In the 12th century the Sheriff was supreme in the shire or county and sat

at the head of almost every government department. Originally he held office

during the King's pleasure. He was chief executive officer and also the

personal agent of the Crown. He collected royal revenue, was responsible for

keeping the King's peace and the apprehension of criminals. There were very

few limits to the duties which could be assigned him.

The office was most fully developed during or between the 12th and 14th cen­

tury to the point that the Sheriff was responsible for collecting fines,

taxes and other fuedal fees owed the Crown and he was, during his appointment,

allowed to keep a portion of funds or fees collected as his due for duties

performed. Thus we come to terms we still use to-day such as l'poun~age".

As he assumed more and more responsibility the Sheriff would 'farm out' var­

·ious duties to 'bailiffs' or 'under-sheriffs' appointed by him for the pur­

pose. Many such duties provided a good deal of revenue for the Sheriff.

2

As a result the appointment was much sought after.

This however was not always so. At one time in history it was an appoint­

ment many feared or attempted to avoid because it took one away from his

every day duties and manner of making a living, subjected you to the dis­

cipline of the Commissioners of the IIfranchise li or county, city or town and

brought with it a good deal of abuse and ridicule.

As a result, the appointment eventually was limited to a one year term and

that appointee was exempt from having to hold office again for at least

three years.

This reluctance to serve brought about a system whereby each jurisdiction,

by the 12th day of November each year, was required to submit a list of per­

sons qualified to serve as Sheriff and then her Royal Highness would prick a

person. The name of a person duly pricked was pUblished in the London Gazette

and he had no choice but to serve.

This brings me to the reason for my appearance here to-day. Service is to

this date what the office of the Sheriff hopes to provide and with a few

helpful hints, might be able to provide a little better.

Sheriff Gordon Laing of the Judicial Centre of Saskatoon and I have divided

the various subjects we have been given to understand you wanted us to speak

on. One of the first I hope to cover is:

What a Sheriff's Office requires prior to acting for a Judgment Creditor

The Sheriff is the statutory agent of the creditor in the execution of a Writ.

Until he is in receipt of a Writ and directed to execute it, the Sheriff should

not proceed.

610 (C.A.):

3

Hazley vs. McArthur (19A7) Manitoba Report, XI, 602 at page

liThe only proper use of a Hrit of Execution is to force payment of the judg­

ment deht by execution on the goods of the judgment debtor; and the Law makes

the Sheriff the Agent of the execution creditor to enforce his Writ. In Barker

vs. St. Ouintent 12 n &w 447, Lord Abinger, C.B. said: It is true that the

Sheriff is an Officer of the Court but the 0rnKt appoints him to do the Plain­

tiff (the execution creditor) a service and will not put him in motion unless

at the instance of the Plaintiff, who is the party to give the Sheriff notice

to do or not to do anything".

Effect Of A Writ

Section 2 of The Executions Act provides that every Writ of Execution issued

against 'goods' shall, from the time of its delivery to the Sheriff to be exe­

cuted, bind all the goods of the judgment debtor within the Province. Such

binding only takes effect from the time the Writ of Execution is delivered or

placed in the hands of the Sheriff. This type of Writ is what is commonly

called a 'goods only' Writ and should be date stamped in the Sheriff's Office

on the date the Writ comes into his hands.

The effect of Section 2 is not to form a "lien" upon the execution debtors

personal property. The binding effect of the Writ of Execution confers the

right to levy upon the property of the debtor to the exclusion of anyone else

dealing with the debtor except a bona fide purchaser who takes immediate and

continued possession of the goods without actual notice of the Writ in the

Sheriff's hands. Although legally bound, the debtor may deal with the goods

himself; any transfer of ownership after they are "bound" by a Writ however

4

is subject to the Sheriff's right to follow up and seize under the Writ. The

creation of the right by the Execution Act will or may often lead the Solic­

itor on Record to attack or attempt to set aside such a transfer from the debtor

taking place after the Writ was delivered to the Sheriff. This is where the

Sheriff can be of considerable assistance to the Solicitor on Record by noting

when the goods in question were seen in the debtor's possession and perhaps by

noting the relationship between the debtor and the purchaser.

Procedure to Register "Goods Only" Writ With Sheriff

When attempting to register a "goods only" \~rit with the Sheriff, all he will

require is the original Writ.

He will also require your letter of instruction on what action, if any, you

wish him to take on your Writ. You may wish him to write a 'demand letter' to

the debtor or to enter into an investigation in an attempt to locate and report

on what assets are in his possession, and report, or you may want such an in­

vestigation done to locate and seize assets exigible for seizure, to be sold

eventually, to settle the outstanding judgment.

The letter of instruction, if from a Law Firm which maintains a deposit account

at that Sheriff's Office, should include a guarantee of costs covering any act­

ivity requested of the Sheriff. If the Writ is being delivered to the Sheriff

by a law firm which does not maintain a deposit account at that Sheriff's

Office or by a private individual, the Sheriff will require a fee be paid and

a deposit in advance covering his costs. The fees in this instance will be:

(a) Filing and Registration

(b) Demand letter (if desired)

(c) Investigation with a view to seizure (deposit)

$ 10.00

5.00

Ino.no

)

5

In addition to the guarantee of costs required in the letter of instruction,

an Indemnification for any lawful enforcement action taken under instructions

of the execution creditor or his solicitor, will also be required. I will

cover the matter of an Indemnity later and separately in this presentation.

Sections 180(3) of (3.1) of The Land Titles Act state that upon entry of a Writ

in the instrument register, the Writ shall "bind and form a lien and charge on

all the lands of which the debtor may be or become the registered owner". Lands

held under joint tenancy are also charged but the charge is terminated upon the

death of the execution debtor.

Section 180 (5) and (6) direct the Registrar grant no Certificate of Title or

register any instrument executed by the execution debtor except subject to the

rights of the execution creditor.

When attempting to register a "goods and lands" Writ with the Sheriff, you will

require the original Writ and one copy for each Land Registration District in

6

which you wish your Writ registered.

If an error is found on the face of the Writ, the Sheriff should reject it

and return it to the execution creditor or his solicitor forthwith for corr­

ection or amendment rather than sending it on to Land Titles and having it

rejected there and thereby causing considerable delay.

Fees For Registration of Goods and Lands Writs

(a) Filing and Registration $

(b) Demand letter (if desired)

(c) For each additional Land Registration District

(d) Advance deposit for investigation and seizure

23.00

S.OO

14.00

100.00

A good deal of care must be taken to ensure the instructions from the execution

creditor or his solicitor to the Sheriff outline precisely in which Land Regis­

tration District the Writ is to be registered. He should not act on instructions

to register the Writ "in the appropriate Land Registration District". This is

particularly so in areas of the Province where several Land Registration Districts

join. The execution creditor or his solicitor may only have an address such as

Leross, Saskatchewan, for the debtor but that person could reside in the village

itself and have several parcels of land, each situated within a different Land

Registration District. Letters of instruction in this regard must be precise.

I have attached my Appendix "A" to this paper which outlines the procedure to

register a Writ with a Sheriff's Office which we hand out to the puhlic or

creditors who are not represented by a Solicitor. You may find it useful as

a guide to your office staff. This Appendix also includes a copy of our usual

demand letter to a debtor and a simplified version of the costs mentioned

earlier for the registration and enforcement of Writs. Hopefully these fees

7

won't change before you get that Appendix to your staff.

If the foregoing is followed, the execution creditor will receive confirmation

of his Writ having been registered in the appropriate Land Titles Office with-

in ten days. You will also receive, if an investigation has been requested, a

report of the results of that investigation, within one month of the instructions

being received by the Sheriff. This time frame however may be extended somewhat

in Judicial Centres where the Sheriff/Local Registrar's Offices are combined or

where there is no Sheriff such as Moosomin for example, where Sheriff Dammann of

Weyburn also covers the Judicial Centres of Estevan and Moosomin and there are

others like that.

Form of Queen's Bench Writ

The form of the Writ is laid out in The Queen's Bench Rules of Court (see Rules

358 to 360 and Form 38). The main points are:

R

4. The Writ must be against lands (See Section lAO, subsection (1)

of The Land Titles Act.

5. The Writ must be for an amount in excess of $100.00 (see Section

22(1) of The Executions Act.)

6. The Writ must state the date of the judgment on which it issued (see

Section lAO(7) of The Land Titles Act.)

While on the subject of registration and enforcement of Writs perhaps this is

also a good time to touch on the withdrawal or discharging a Writ.

Discharge or Withdrawal of a Writ

Section lAl of The Land Titles Act provides authority for a Sheriff or a Judge

to issue a Certificate Under Seal or an Order discharging a Writ:

(a) as to part of the lands;

(b) as to part of the amount;

(c) as to all of the land.

In the case of the Sheriff, he will not or should not accept instructions from

anyone other than the execution creditor or his solicitor to partially withdraw

or completely discharge a Writ. He may only accept such instructions from the

party that placed the Writ in his hands.

He should not issue his Certificate of Withdrawal (Form CS-75) attached hereto

as Appendix IIB II on instructions of a Bank Manager, Loans Officer, or a Solic­

itor other than the one on the record.

The reasons for this are numerous but the most important from my view is that

only the execution creditor or his solicitor w~o placed the Writ into the

Sheriff's hands knows for certain if the Writ has been completely satisfied.

9

The only exception to the above is if the execution debtor pays out to the

Sheriff the entire principal, interest and costs, at which time he may issue

his Certificate immediately.

Effect of Bankruptcy

A discharge in bankruptcy does not discharge a Writ nor does it require the

Sheriff to issue a Certificate of Withdrawal. The discharge in bankruptcy merely

places a stay on any enforcement proceedings the Sheriff may take.

In any case where an execution debtor has obtained a discharge in bankruptcy,

since the issuance of the Writ, the rule remains the same. Only the execution

creditor or his Solicitor may instruct the Sheriff to withdraw a Writ unless an

Order issues out of Court from which the Writ issued, for the Sheriff to do so.

In order for anyone other than the execution creditor to order a discharge of a

Writ, the question of whether the claim on which the Writ was based has been

discharged by the Bankruptcy~ourt would have to be answered. It is obvious

from reading The Bankruptcy Act that not all claims against a bankrupt are nec­

essarily discharged by such an Order. It would be impossible for a Sheriff to

make such a decision.

There are only three ways in which one may compel a Sheriff to withdraw a Writ

and they are:

(a) By pay-out to him the entire principal, interest and costs of the Writ

at which time he will immediately issue his Certificate of Withdrawal.

(b) By way of receiving instructions from the execution creditor or his

Solicitor, and,

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(c) By obtaining an Order out of the Court of Queen's Bench under Section 87

of The Land Titles Act.

I hope this clears up some of the frustrations clients or execution debtors feel

when they find an old Writ on the record when attempting to arrange financing or

transfer of property. Usually we find the Writ was settled quite a while ago but

no one issued withdrawal instructions or paid the $12.00 withdrawal fee.

Partial Withdrawals - New Procedure

Most will by now be familiar with the streamlined procedure for obtaining a Par­

tial Withdrawal Certificate from the Sheriff as-it pertains to a specific piece

of property and filing that Certificate with land transfer documents pursuant to

Section 181 (3) of The Land Titles Act.

Under the new procedure one may request, being the Solicitor on the record, or

if not, getting his consent in letter form for a partial withdrawal. Present

your letter of instruction to the Sheriff along with the letter of authority to

a partial withdrawal from the execution creditor or his Solicitor. The Sheriff

will issue his Certificate and one may then take the original direct to the Regis­

trar of Land Titles stapled to the transfer documents and he will deal with the

transfer documents directly and immediately thereby by-passing the longer proced­

ure in Section 181(2). Be reminded however that the Certificate of Withdrawal

must indicate that the documents are being transmitted to him in accordance with

Sub-section (3), otherwise he must deal with them in the normal manner. The fee

for this Certificate of Partial Withdrawal is $12.00, the same as any other Cert­

ificate of Withdrawal. I believe you'll find this will speed up your transfer

procedures considerably.

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Guarantee of Costs and Indemnity

This seems to be an area which still causes a few Solicitors acting on hehalf of

execution creditors some concern. Few object to providing some form of indem­

nity in their letters of instruction or with it in order to get the Sheriff to act.

Perhaps by going into what presently seems to be the policy regarding indemnifica­

tion I could alleviate some of the concerns. First of all, let me advise you that

I am unaware of any Solicitor or Law Firm that has been required to protect or de­

fend any action against a Sheriff in Saskatchewan for quite some time. Usually

when it is alleged an impropriety regarding a seizure has been committed by a

Sheriff, a Solicitor from the Civil Law Branch of the Department of Justice acts

for the Sheriff. Particularly if the matter goes into Court by way of Inter­

pleader.

Generally, the Sheriff is bound, when he receives a Writ of Execution, to act

upon it and there seems to be no certain authority in Saskatchewan where a Sheriff

may refuse to act because the execution creditor or his Solicitor refuses to in­

demnify him. The only exception may be where in common law when title to certain

goods is in dispute. In such cases a Sheriff may demand an indemnity from the

execution creditor or his Solicitor requiring him to levy on such property fail­

ing which the Courts may relieve the Sheriff from the duty to make a Return to

such a Writ.

It was therefore recommended by the Minister of Justice, acknowledging the poss­

ible liability of the Sheriff in the exercise of his duty, to request an indem­

nity from the Solicitor on the record before making seizure. The matter was

again reviewed in 1988 at the request of the Law Society of Saskatchewan and

after review of The Execution Act, The Execution Creditors Act of Alberta and

I?

Rule 411, it vias decided, and I quote lI upon review of the Policy, it has been

concluded that Sheriffs should continue to reauest an indemnity and sufficient

security when necessary, prior to seizure of assets. However, Sheriffs will be

directed not to insist that a lawyer provide his personal indemnity on behalf of

his client ll•

The determination as to whether or not an indemnity is necessary will be made by

the Sheriff prior to seizure. The Sheriff will insist on an indemnity where he

is unable to ascertain whether or not equity exists in assets.

To sum up briefly then. When instructing a Sheriff to act on a Writ you will re­

quire:

(a) Original and one copy (if goods and lands) of the Writ.

(b) A precise letter of instruction outlining what action you wish taken.

(c) Guarantee of costs if your Firm maintains a deposit account at that

Sheriff's Office or a cash deposit for costs in advance as set out in

Appendix IIA II , and,

(d) The usual Indemnification in whatever form you prefer. (For example, see

my Appendix IIC II ).

(e) S.G.I. and Personal Property Registry search results if you prefer to

do these yourself and any other information you or your client may have

regarding exigible assets in possession of the execution debtor, including

the bank he may deal at and any R.R.S.P.'s or G.l.C. 's he may hold if known.

APPENDIX IIA II13

PROCESS FOR REGISTERING AND ENFORCING WRIT OF EXECUTION

1. The Writ of Execution forms (Form 210) may be purchased at any station­

ery or printer's outlet. You will require one copy for your own records

and two (2) copies for the Sheriff's Office.

2. The Writ must be completed accurately and totally and then issued out of

The Registrar's Office at any Judicial Centre within the Province. There

is a fee of $10.00 for this. Once the Writ has been signed and sealed by

the Local Registrar's staff, you may bring jt to the Sheriff's Office for

registration. The Court Registry staff is not authorized to assist you

in filling out legal documents or Writs.

3. The Sheriff's Office requires original Writ only if it is a 'goods only'

Writ. An anditional copy is required if it is a 'goods and lands' Writ.

A 'goods only' Writ forms a lien against the debtor's goods only and may

be re9istered at the Personal Property Registry at lA74 Scarth Street,

Regina, Saskatchewan, or via any Sheriff's Office in the Province.

A 'goods and lands' Writ may, in addition to the above, be registered

with the Registrar of Land Titles at any or all Land Registration Dist­

ricts in Saskatchewan and it then forms a lien against ill lanns of the

de~tor situated within Saskatchewan.

Writs of Execution are also often registeren at the various Credit

Bureaus within the Province.

14

2

A Once you have registered your Writ at the Sheriff's Office you may in­

struct him to take the following action to realize on your Writ:

(a) A 'demand letter' may be directed to the debtor hy the Sheriff (see

attached sample) qivinq him/her twenty (?-O) days to make payment or pro­

pose some form of settlement.

(b) Or you may forego having the Sheriff write the debtor and instead,

have him commence an investigation with a view to locating sufficient

of the debtor's non-exempt assets to seize and sell same ann aoply the

proceeds to your Writ.

This investigation requires a deposit of funds in advance for costs.

When instructions to enforce a Writ and a deposit for costs is received

the Sheriff will assign the matter to a Deputy Sheriff for investigation.

If assets are found which are not encumbered hy a Security Agreement or

which are not likely exempt from seizure, he will seize same and such

items will be sold at the next Sheriff's auction if the Writ is not sooner

settled.

5. The proceeds of such a sale are placed in trust under The Creditors' Re­

lief Act and held for sixty (60) days and then distributed on a pro­

rata basis to all parties havinq placed a Writ in the Sheriff's hands.

All Sheriff's fees and expenses are a first charge on any funds realized

and are taken out before distribution.

All fees as outlined below must he paid into Sheriff's Office by cert­

ified cheque, cash or money order.

)

15

3

'6. The proceeds can then be paid out to satisfy your claim two months after

the date on which we received the funds.

Also, should there be any other Writs of Execution registered against the

Defendant1s name, the proceeds must be shared pro-rata among all creditors,

in accordance with The Creditors' Relief Act.

All Sheriff's fees and expenses hold first priority.

FEES FOR ISSUING AND ENFORCING WRIT OF EXECUTION

ISSUANCE OF WRITAT LOCAL REGISTRAR'S OFFICE

REGISTRATION OF WRIT HERE FOR:

$10.00

O.B. JUDGMENT: LABOUR STANDARD ORRENTALSMAN JUDGMENT

"GOODS ONLY" $ 10.00"GOODS &LANDS" $ 23.00

COST OF DEMAND LETTER: $ 5.00ADVANCE FEES FOR

INVESTIGATION: $ 100.00

SMALLCLAIMS

$ 2.00$ 7.00

$ 1.00

$ ~0.00

***ALL FEES MUST BE PAID BY CERTIFIED CHEQUE, CASH OR MONEY ORDER,AND MUST BE PAID IN ADVANCE TO THE SERVICE BEING COMMENCED.

•11/1\\

SaskatchewanJustice

Dehtor's Nome12~4 Somewhere StreetYOURTOWN, SaskatchewanS4P ?BR

Dear Sir:

164

SheriffJudicial Centre of Regina

SaskatchewanCourt House2425 Victoria AvenueRegina. CanadaS4P 3V7

(306) 787-5371

Your File:

Our File: W/E l;;>~L1.S

RE: Your Name (Plaintiff)vs. Debtor's Name

T~is is to advise you that a Court Order,-known as a Writ ofExecution has heen registered with the Sheriff's Office. T~e

Writ of Execution forms a lien and charge 6n all your propertyand all property acquired in the future.

The Writ of Execution loo~s to you for payment of (judgmentamount) plus interest at ~% per annum from (judgment date) andcosts of the Execution amountinq to (execution costs olus costof demand letter) paid hy certified cheque, cash or money order,to the Sheriff's Office.

In the event that settlement, or satisfact ory arrangements forsettlement, is not forthcoming by (date - ?O days from date oft~is letter), direct action by the Office of t~e Sheriff may betaken without advance notice being given to you. Also, anyaction taken by the Office of the Sheriff will create additionalcosts for you.

It would be in your best interest to contact the Office of the .~

Sheriff forthwith.

Yours truly,

W. SIEMENSSheriffJudicial Centre of REGINA

/bw

cc: Plaintiff or Solicitor on Record

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CERTIFICATE 17 APPENDIX "8" Form CS-75

Sheriffat the Judicial Centre of

In the Province of Saskatchewan, do hereby certify that an execution against the lands of

at the suit of

for the sum of

dated the day of

A.D. 19 , and received by me as such Sheriff on the

day of A.D. 19

Given under my hand and seal of office at

~s ~~

, has

in the Province of Saskatchewan

A,D.19

Sheriffat the Judicial Centre of

The SheriffCourt HouseREGINA, Saskatchewan

Dear Sir:

RE:

18APPENDIX "C"

I/We request your seizure, sale and related proceedings regard­ing the Writ of Execution in the above mentioned matter.

I/We hereby agree to protect and indemnify you, your Bailiffor Agent against any and all claims which may be made againstyou under this authority, to pay your costs and to defend anyaction against you in this respect.

Dated this day of , A.D. 1990.

Solicitor in Charge of File