CIVIL PROCEDURE RULES - NOVA SCOTIA

Court of Appeal and Supreme Court

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RULE 51
ORDERS
Form of order

51.01.
(1) An order shall contain,

(a) the title of the proceeding;

(b) the name of the judge or officer who granted it;

(c) recitals of the proceedings on which it is based;

(d) the operative parts of the order divided into convenient paragraphs and numbered consecutively;

(e) the date of the order; and

(f) the name and seal of the prothonotary who issued it.

(2) An order may be in Forms 51.01A to 51.01E, where applicable, with any variation that the circumstances require. [E. 42/1]

(3) It is not necessary in any interlocutory order to reserve liberty to apply, but any party may apply to the court from time to time.

Order requiring an act to be done, etc.

51.02.
(1) Subject to paragraph (2), an order that requires a person to do or refrain from doing an act, shall specify the time within which the person is to do or refrain from doing the act.

(2) Where a person is required by an order to pay money, give possession of any land, or deliver any goods, the time for doing so need not be expressed in the order, but the court may specify such a time either in the order or subsequently. [E. 42/2]

Drawing up of order

51.03.
(1) Subject to paragraph (2), an order shall be drawn by the successful party, settled as provided by rule 51.05(1), and entered with the prothonotary, provided that when an order is not entered within ten (10) days after the judgment, decision or direction is given, any other party may draw up, settle and enter the order.

(2) Unless the court otherwise orders, an order need not be drawn up that, in addition to providing for costs, if any, merely grants leave to,

(a) extend the time within which a person is required or authorized by a rule, order or direction to do or refrain from doing any act;

(b) issue an originating notice, other than one for service out of the jurisdiction;

(c) amend an originating notice or pleading;

(d) file a document; [E. 42/4]

Settlement of form and entry of order

51.04.
(1) The form of an order shall be settled,

(a) by the court that heard the proceeding;

(b) where there has been a trial with a jury, by the court;

(c) by the prothonotary pursuant to rule 51.05;

(d) where an enactment or rule permits an order to be entered upon the filing of an affidavit or other document, by the prothonotary after being satisfied that the documents filed comply with the enactment or rule;

(e) by the officer authorized by an enactment or rule to grant the order;

(f) where a judge dies, retires, ceases to be a judge of the Supreme Court of Nova Scotia or for any other reason fails to settle an order, by another judge pursuant to rule 39.03.

(2) A prothonotary may refer the settlement of any order to the court, that may either dispose of the matter or refer it back to the prothonotary with such directions as it considers appropriate.

(3) When an order has been settled and filed, the prothonotary shall sign, seal and file the original copy and enter it in the cause book, provided no order shall be entered more than one (1) year after it has been granted or settled without the leave of the court.

(4) An order of the Nova Scotia Court of Appeal shall be entered in the prothonotary's office at Halifax and in the office of the prothonotary where the order appealed from was entered.

(5) A copy of an order, certified as a true copy and bearing the seal of the prothonotary, shall be received for all purposes and have the same force and effect as the original order.

Orders made by a prothonotary

51.05. (1) Notwithstanding the provisions of any other rule, a prothonotary may make and enter an order,

(a) where the form of the order has been consented to by all the parties and it purports to,

(i) change a solicitor on the record;

(ii) amend any pleading;

(iii) appoint a special examiner to take evidence abroad or issue a letter of request pursuant to rule 32.01;

(iv) fix a date, approved by the prothonotary for

(A) the assessment of damages;

(B) accounts to be taken;

(C) advertising for creditors or other claimants;

(v) release any exhibit;

(vi) confirm a verbal order made by the court and noted on the record;

(vii) discontinue a proceeding;

(viii) dismiss a proceeding of any party, who is not a person under disability;

(ix) waive the provision of any rule;

(b) where the order is applied for ex parte and it purports to

(i) grant leave to issue and serve a petition in a matrimonial cause out of the jurisdiction as provided by rule 57.11;

(ii) fix a date, approved by the prothonotary, for,

(A) the assessment of damages after interlocutory judgment has been entered following default of defence, or of appearance on a hearing;

(B) accounts to be taken;

(C) advertising for creditors or other claimants;

(iii) grant leave to renew an originating notice for a further period of six (6) months, provided the application is made within six (6) months from the date of the issue of the originating notice or within six (6) months from the date of any renewal thereof; [Amend. 29/5/98]

(c) where the order is applied for ex parte and it purports to be an order

(i) for examination;

(ii) confirming a sheriff's report when not combined with an order for deficiency judgment;

(iii) adding a defendant or defendants;

(iv) amending a statement of claim;

(v) renewing an execution order;

(vi) registering a judgment;

(vii) fixing the remuneration of a receiver under rules 46.03 or 46.04. [Amend. 12/86]

(d) where the order is an interlocutory or final judgment under rules 12.01 or 12.02. [Amend. 6/97]

(2) A prothonotary may refer any order to the court, which may make such order as is just or refer it back to the prothonotary with such directions as are necessary.

(3) Any person affected by an order of a prothonotary made pursuant to Rule 51.05(1)(b), Rule 51.05(1)(c) or Rule 28.11(3) may appeal therefrom to a judge in chambers within ten (10) days after the order complained of has been served upon him in cases where service is required, and within ten (10) days after the making of the order in all other cases, and the judge may make such order as is just.
[Amend. 07/03]

Date on which order takes effect

51.06.
Unless the court otherwise orders, an order shall be dated and take effect,

(a) when the order is not appealed from, on the date it is pronounced, given or made;

(b) when an order is varied on appeal, from the date when the order granted on the appeal is pronounced, given or made;

(c) when an order is sustained on appeal, on the date when the order was originally pronounced, given or made.

Costs

51.07.
Costs shall be allowed in an order as provided in Rule 63. [Amend. 12/12/74]

Default and summary judgments

51.08.
A party may apply for a default order under Rule 12, and for a summary order before trial under Rule 13 and rule 28.13.

Conditional order

51.09.
Where an order is obtained upon a condition that is not complied with, unless the court otherwise orders the order shall be deemed to have been waived or abandoned as far as it is beneficial to the person obtaining it, and any person interested in the matter on the breach or non-performance of the condition may take such proceedings as the order warrants or as might have been taken if the order had not been made.

Amendment of orders

51.10.
An order may be amended as provided in rule 15.07.

Satisfaction of judgment

51.11.
A prothonotary shall enter that an order has been satisfied when there is filed with him,

(a) a satisfaction piece in Form 51.11A, signed by the judgment creditor, or his solicitor on the record, or by any other person entitled to the benefit thereof who attaches to the satisfaction piece an affidavit establishing his entitlement thereto; or

(b) an order of the court releasing the order.

Appeals from orders

51.12.
A party may appeal from an order in the manner provided in Rule 62. [Amend. 12/12/74]

Service of order on person not a party

51.13.
(1) Where in a proceeding for,

(a) the administration of the estate of a deceased person;

(b) the execution of a trust; or

(c) the sale of any property;

the court grants an order that affects the rights or interests of any person who is not a party or directs an account to be taken or inquiry made, the court may in the order, or at any stage of the proceeding thereafter,

(i) direct a copy of the order with a memorandum in Form 51.13A attached thereto, to be served either personally or in such other manner as the court specifies, upon any person interested in the estate, trust or property, and the person served shall, subject to paragraph (2), be bound by the order to the same extent as he would have been if he had been a party; or

(ii) where it is impractical to serve the order on any person, direct that service of the order be dispensed with and that the person shall, subject to paragraph (2), be bound by the order to the same extent as if he had been served with a copy thereof under clause (1). [E. 44/3]

(2) A person referred to in paragraph (1) may, within thirty (30) days from the date of service of the order on him or from the date on which he otherwise received notice of the order, apply to the court to amend or discharge the order, or be permitted to attend any further hearing arising in the proceeding, and the court may make such other order as it considers just. [E. 44/3(5)]

Powers on hearing of an application

51.14.
On the hearing of an application relating to any proceeding taken or to be taken under an order, the court may give directions with respect to,

(a) the measures to be taken and the conduct thereof, including

(i) the manner in which an account or inquiry is to be prosecuted;

(ii) the evidence to be adduced;

(iii) the parties or persons required to attend;

(iv) the time within which any measure is to be taken;

(v) fixing the day or days for the further attendance of any party or person;

(vi) revoking or varying any direction; [E. 44/4]

(b) requiring the parties constituting each or any class to be represented by the same solicitor, or, where the parties constituting a class cannot agree on a solicitor, to nominate a solicitor to represent the class; [E. 44/5]

(c) requiring any parties with a common solicitor to be separately represented with power to adjourn the hearing until they are; [E. 44/6]

(d) permitting any party, who has not been directed to attend on the hearing, to attend at the cost of the estate or other property to which the proceeding relates and to have the conduct thereof in addition to or in substitution for any other party; [E. 44/7]

(e) any other matter as it deems necessary.

Order requiring deed or document to be settled

51.15. Where an order directs the form of a deed or other document to be settled by the court, the court may

(a) direct the party required to prepare a draft of the deed or other document, to serve a copy of the draft upon every other party thereto within a specified time;

(b) direct a party, who receives a copy of the draft, to serve his written objections to the form thereof on the party who prepared the draft within ten (10) days, or such other time as is specified, with liberty to apply to the court for further directions if the form cannot be agreed upon;

(c) give such other directions as are just. [E. 44/8]

Advertising for creditors and other claimants

51.16. (1) On an application to advertise for creditors and other claimants, including heirs, next of kin or other unascertained persons, the court may,

(a) authorize the applicant or any other person to advertise in such manner and at such times as it deems necessary;

(b) fix the time within which, and appoint the person to whom, any creditor or claimant shall send his name, address and particulars of his claim, and the time, name and address of the person shall be stated in the advertisement; [E. 44/10(3)]

(c) direct that, unless the court otherwise orders, any person, who fails to send in full particulars of his claim to the person named in the advertisement within the time specified, shall be excluded from the benefit of any order that may be granted; [E. 44/11]

(d) subject to rules 51.17 and 51.18, direct how, when, and by whom, any claims are to be examined and disposed of;

(e) make such other order as is just.

(2) Unless the court otherwise orders, the advertisement in paragraph (1) shall be prepared by the applicant. [E. 44/10(2)]

Examination of claims

51.17. On the expiration of the time fixed under rule 51.16 for the filing of claims, a person appointed to receive the claims shall,

(a) examine each claim filed with him and determine, so far as he is able, the validity of the claim;

(b) at least ten (10) days before the time appointed by the court to adjudicate the claims, make an affidavit listing,

(i) the claims sent in pursuance of any advertisement, and

(ii) the claims received other than in pursuance to an advertisement, or that have come to his knowledge, and specifying with respect to each claim, whether or not it is a valid claim, in whole or in part, giving the reasons for such belief. [E. 44/12]

Adjudication of claims

51.18.
(1) On the adjudication of a claim, including any part thereof, the court may,

(a) allow or disallow any claim or part after or without proof thereof;

(b) direct any claim or part to be investigated in such manner as it thinks fit; [E. 44/13(1)]

(c) require a claimant, on not less than ten (10) days notice, to attend and prove his claim or part, or to furnish further particulars or evidence of it by affidavit or in such other manner as the court orders, or to produce such documents in support of the claim or part as may be specified; [E. 44/13(2)]

(d) require a person claiming to be a secured creditor to produce his security; [E. 44/13(6)]

(e) adjourn the adjudication of any claim or part and, if required, fix the time within which any evidence in support of or in opposition of the claim or part shall be filed; [E. 44/14]

(f) give such other directions or make such other order as is just.

(2) The court may direct any claimant, who did not attend on the adjudication under paragraph (1) and whose claim or any part thereof has been allowed or disallowed, to be served with a notice in Form 51.18A informing him of that fact and stating that, if the claimant is dissatisfied with the amount allowed or the disallowance of his claim, he must within ten (10) days from the receipt of the notice apply to the prothonotary for a rehearing of his claim, otherwise the adjudication shall be final. [E. 44/16]

(3) Service of a notice on any claimant under paragraph (2) shall be at the address stated in his claim, or if he is represented by a solicitor at the business address of the solicitor. [E. 44/17]

Certificate of judgment of Supreme Court of Canada

51.19. When a judgment of the Supreme Court of Canada on appeal is certified by the Registrar thereof and filed with a prothonotary, the prothonotary shall enter the same and all subsequent proceedings may be taken thereon as if the judgment had been given or pronounced by the court.

FORM 51.01A
(Rule 51.01)

DEFAULT ORDERS

(Title of proceeding)

As the defendant has not served a defence on the plaintiff, it is this day ordered that,

For a liquidated demand: the defendant pay to the plaintiff the sum of
$_____ and costs of $_____ .

For unliquidated damages: the defendant pay to the plaintiff damages to be assessed.

Relating to detention of goods: [the defendant deliver to the plaintiff the goods described in the statement of claim as,__________________ or pay to the plaintiff the value of the goods to be assessed (and also damages for their detention to be assessed)].
(or)
[the defendant pay to the plaintiff the value of the goods described in the statement of claim to be assessed (and also damages for their detention to be assessed)].

For possession of land: the defendant give to the plaintiff possession of the land described in the statement of claim as ____________ , and pay to the plaintiff the sum of $__________ costs.

DATED at ___________, Nova Scotia, the ___ day of _____, 20__ .

PROTHONOTARY.

FORM 51.01B
(Rule 51.01)

FINAL ORDER AFTER ASSESSMENT OF DAMAGES, ETC.

(Title of proceeding)

BEFORE THE HONOURABLE JUSTICE _________ IN CHAMBERS:

Upon it appearing that the plaintiff on the day of _____, 20__ , obtained an interlocutory order herein against the defendant for damages to be assessed (or as the case may be);

It is this day ordered that the defendant pay to the plaintiff the sum of $_______ and costs to be taxed (or as the case may be).

DATED at ________, Nova Scotia, the ___ day of , 20__.

____________________: PROTHONOTARY.

FORM 51.01C
(Rule 51.01)

SUMMARY ORDER UNDER RULE 13.02

(Title of proceeding)

BEFORE THE HONOURABLE JUSTICE _________ IN CHAMBERS:

Upon it appearing that the plaintiff has made application under rule 13.02 for a summary order against the defendant on the claim herein;

It is ordered that the defendant do [pay to the plaintiff the sum of $____________ and $________ costs (costs to be taxed.)]

or

[pay to the plaintiff damages to be assessed.]

or

[deliver to the plaintiff the goods described in the statement of claim as _____________, (or pay the plaintiff the value of the goods to be assessed) (and also damages for their detention to be assessed) and costs to be taxed. ]

or

[give to the plaintiff possession of the land described in the statement of the claim as and costs to be taxed.]

DATED at _______, Nova Scotia, the ___ day of _____, 20__.

______________: PROTHONOTARY.

FORM 51.01D
(Rule 51.01)

ORDER AFTER TRIAL WITHOUT A JURY

(Title of proceeding)

This proceeding having come on for trial before the Honourable Justice _______ , at the Court House in _______, Nova Scotia, on the __ day of ______, 20__ , and evidence having been adduced and counsel having been heard on behalf of the plaintiff and defendant respectively, the learned judge was pleased to reserve his decision and by a written decision dated and filed the ___ day of ___, 20__ , found, etc.

NOW UPON HEARING Mr./Ms._____ , on behalf of the plaintiff and Mr./Ms.________ , on behalf of the defendant, [consenting as to form],

It is ordered that the defendant pay to the plaintiff the sum of $_______________ and his costs of action to be taxed (or as may be according to the judge's order).

[It is further ordered that execution be stayed for ____ days and if within that time the gives notice of appeal and sets down the appeal, execution be further stayed until the determination of the appeal (or as may be according to the judge's direction)].

DATED at __________, Nova Scotia, the ___ day of ____, 20__.

______________: PROTHONOTARY.

FORM 51.01E
(Rule 51.01)

ORDER AFTER TRIAL WITH JURY

(Title of proceeding)

This proceeding having come on for trial before the Honourable Justice __________ , with a jury, at the Court House at _________, Nova Scotia, on the day of _______, 20___, and evidence having been adduced and counsel having been heard on behalf of the plaintiff and defendant respectively, the learned judge submitted the following questions to the jury that returned the following answers:

(set out the questions and answers)

and the Justice having ordered that judgment be entered for the plaintiff for $_______ and costs to be taxed (or as the case may be);

NOW UPON HEARING Mr./Ms._______ , on behalf of the plaintiff, and Mr./Ms._________ , on behalf of the defendant (consenting as to form),

It is ordered that the defendant pay to the plaintiff the sum of $________________ and his costs to be taxed (or as the case may be) .

DATED at _________, Nova Scotia, the __ day of ______, 20__.

PROTHONOTARY.

FORM 51.11A
(Rule 51.11)

SATISFACTION PIECE

(Title of proceeding)

Satisfaction is acknowledged of the order entered by the [plaintiff] [defendant] against the [defendant] [plaintiff] on the ___ day of _____, 20__ , for the sum of $____ and costs of $_____.

Dated at _______, Nova Scotia, this ___ day of _____, 20__.

[plaintiff] [defendant]

[solicitor for A.B., the ]

FORM 51.13A
[Rule 51.13(1)(c)]

NOTICE TO A NON-PARTY

(Title of proceeding)

Take notice that if you, as the [executor] [administrator] [trustee] of the Estate of A.B., deceased, (or as the case may be), wish to have the order of the Honourable Justice _______, dated the __ day of _____, 20__, amended or discharged, you must make application to amend or discharge the order to the Judge of this Honourable Court presiding in chambers at the Court House at , Nova Scotia, within thirty (30) days from the service of the order on you or from the date you first receive notice of the order, otherwise you will be bound by the order to the same extent as if you had been a party to the proceeding.

Dated at _______, Nova Scotia, this ___ day of _____, 20__.

_______________: PROTHONOTARY.

FORM 51.18A
[Rule 51.18(2)]

NOTICE OF DISALLOWANCE

(Title of proceeding)

Take notice that, on the adjudication of the claims of creditors and other claimants (or as the case may be) in the above proceeding, the Honourable Mr. Justice , by order dated the ___ day of _____, 20__, [allowed your claim in the amount of $___ .] [disallowed your claim.]

And take notice that, if you are dissatisfied with the amount allowed or the disallowment of your claim, you must, within ten (10) days from the receipt of this notice, apply to me, the prothonotary at my address below, for a further rehearing of your claim otherwise the above adjudication will be final and binding upon you.

Dated at _______, Nova Scotia, this ___ day of _____, 20__.

My address is: ________________ Prothonotary,

Court House,

____________-, Nova Scotia.

RULE 52

ENFORCEMENT OF ORDERS: GENERAL

Enforcement of order for the payment or recovery of money

52.01. (1) An order for the payment of money, other than the payment of money into court, may be enforced by one or more of the following orders,

(a) an execution order as provided in Rule 53;

(b) a receivership order as provided in Rule 54;

(c) a contempt order as provided in Rule 55. [E. 45/1(1)]

(2) An order for the payment of money into court may be enforced by one or more of the following orders.

(a) a receivership order under Rule 54;

(b) a contempt order under Rule 55. [E. 45/1(2)]

(3) An order for the recovery of money may be enforced by one or more of the following orders,

(a) an execution order as provided in Rule 53;

(b) a receivership order as provided in Rule 54. [E. 45/13(1)]

Enforcement of order for possession of real or personal property

52.02. (1) An order for the giving of possession of real property or the delivery of any personal property may be enforced by any one or more of the following orders:

(a) a recovery order as provided by rule 48.13;

(b) a contempt order as provided by Rule 55. [E. 45/3/4]

(2) An order for the recovery of possession of real property, or for the return of any personal property, or in lieu thereof the recovery of the assessed value thereof, may be enforced by a recovery order as provided by rule 48.13. [E. 45/13(2)(3)]

Enforcement of an order to do or abstain from doing an act

52.03.
(1)

(a) When a person, who is required by an order to do an act with-

in a specified time, refuses or neglects to do it within that time; or

(b) when a person disobeys an order requiring him to abstain from doing an act;

then the order may, subject to paragraph (3), be enforced by a contempt order as provided by Rule 55. [E. 45/5]

(2) The court may from time to time vary an order referred to in paragraph (1), by requiring any act to be done or abstained from,

(a) when the order specifies the time when the act was to be done or abstained from, at any other time; or

(b) when the order does not specify any time, within such time as may be specified in the order. [E. 45/6]

(3) An order in paragraph (1) or (2) may not be enforced by a contempt order, unless a copy of the order has been served,

(a) on the person required by the order to do or abstain from doing any act; or

(b) where the person is a body corporate, on any officer, director, employee or agent thereof against whose property or person leave is to be sought to issue a contempt order pursuant to rule 55.06; and

(c) where the act is to be done or abstained from within a specified period of time, before the expiration of that time. [E. 45/7]

(4) Where an order made under paragraph (1) (a) is not complied with, the court may,

(a) order the act to be done at the expense of the disobedient party by the party who obtained the order or any other person appointed by the court, and upon the act being done and the expense thereof ascertained, direct an execution order to issue against the disobedient party for the amount so ascertained and costs;

(b) make such other order as is just. [E. 45/8]

When leave to issue execution orders, etc., is necessary

52.04. (1) A prothonotary shall not issue an execution, receivership or contempt order to enforce an order without first obtaining the leave of the court where,

(a) six (6) years or more have elapsed since the date of the order;

(b) a change has taken place, whether by death or otherwise, in the parties entitled or liable under the order;

(c) any goods sought to be seized under an execution order are in the hands of a receiver appointed by the court;

(d) where under the order, any person is entitled to relief subject to the fulfilment of any condition which it is alleged has been fulfilled. [E. 46/2(1)]

(2) Where the court grants leave, whether under this rule or otherwise, to issue an order under paragraph (1) and the order is not issued within one (1) year from the date of the order granting such leave, the order granting leave shall cease to have effect, but nothing shall limit the making of a further order granting leave. [E. 46/2(3)]

Duration and renewal of execution, etc., orders

52.05. (1) A receivership or contempt order is valid for a period of twelve (12) months from the date of its issue. [Amend. 29/5/98]

(2) An execution order is effective for a period of six years from the date of the judgment. [Amend. 29/5/98]

(3) Where an order referred to in paragraph 52.05(1) or (2) has not been wholly executed, the court may extend or fix the effective period of the order, or of any order so renewed, for a further period of twelve (12) months commencing from the date of the order granting the extension. [Amend. 29/5/98]

(4) Any priorities under an order referred to in paragraph (1), or any renewal thereof, shall be determined by reference to the date on which the original order was delivered to the sheriff. [E. 46/8(4)] [Amend. 29/5/98]

Return of execution, etc., orders

52.06. (1) A sheriff shall, on the expiration of an execution, receivership, or contempt order, or when requested by the court, file the order forthwith with the prothonotary with a report of any action taken by him thereunder endorsed thereon or attached thereto.

(2) When requested in writing by a party at whose instance an order referred to in paragraph (1) was granted or by the prothonotary, the sheriff shall indorse on the order a statement of the manner in which he has executed it and send a copy of the statement to the party or prothonotary.

(3) When a sheriff fails to comply with the provisions of paragraph (2), the court may grant an order directing the sheriff to comply with the notice. [E. 46/9]

Execution by or against a person not a party

52.07. (1) When a person, who is not a party, obtains an order or an order is made in his favour, that person shall be entitled to enforce obedience to the order by the same process as if he were a party.

(2) When an order may be enforced against a person who is not a party, that person shall be liable to the same process for enforcing obedience to the order as if he were a party. [E. 45/9]

Waiver of conditional judgment or order

52.08. When a party, who is entitled to any relief under an order upon the fulfilment of a condition, fails to fulfil the condition, that party is deemed to have abandoned the benefit of the order and, unless the court otherwise orders, any other interested person may take any steps warranted by the order or that might have been taken if the order had not been granted. [E. 45/10]

Stay of execution for matter occurring after judgment or order

52.09. When a party against whom an order has been granted, or any person against whom obedience thereof may be enforced, applies to the court for a stay of execution thereunder because of a matter that occurred after the date of the order, the court may grant the stay and any other relief upon such terms as it thinks just. [E. 45/11]

RULE 53

EXECUTION ORDERS

Application for execution order

53.01.
(1) When a judgment creditor has filed an order for the payment or recovery of money in a proceeding, a prothonotary shall, unless the court otherwise orders and subject to rule 52.04,

(a) grant and issue an execution order in Form 53.02A to the judgment creditor;

(b) when an execution order has ceased to be valid under rule 52.05 or for any other reason, grant a further execution order.

(2) A prothonotary may grant and issue an execution order to enforce payment of any money payable or recoverable under an order before costs are taxed, and subsequently on the taxation of the costs grant and issue a further execution order to enforce payment of the taxed costs. [E. 47/3(1)]

(3) Where a party obtains an order for the recovery of possession of any property, other than money, a prothonotary may issue an execution order to enforce payment of any damages or costs, or both, awarded under the order. [E. 47/3(2)]

(4) A prothonotary may grant and issue an execution order to enforce the payment of costs alone when taxed pursuant to an order.

Execution order

53.02.
(1) Unless the court otherwise orders, an execution order in Form 53.02A shall direct any sheriff within the effective period of the execution order or within such further time as the court orders, [Amend. 29/5/98]

(a) to seize, accept as a receiver, hold and sell at public auction any property in which the judgment debtor has an interest, including any debt, rent, legacy, share, bond, debenture or other security, currency, wages, or other demand, due or accruing due at any time while the order is valid, whether in the possession or custody of the judgment debtor or other person and not exempt by law from seizure, as will satisfy in whole or in part the amount of the claim which the judgment creditor seeks to recover from the judgment debtor as stated in the execution order, and to disburse the proceeds thereof as provided by law;

(b) to serve a true copy of the execution order on the judgment debtor or other person in possession of the property at the time of the seizure;

(c) to make forthwith a true inventory and appraisement of the seized property and the interest of the judgment debtor therein;

(d) where there is any property in the possession of a third person which cannot be seized under the execution order, to serve a copy of the execution order on the third person, and the order shall provide that the property, in an amount as will satisfy in whole or in part the amount of the judgment creditor's claim against the judgment debtor as stated in the order, shall be deemed to have been seized upon the service of the order, and direct the third person, within ten (10) days of the service of the order on him and from time to time thereafter as such additional property is available for delivery,

(i) to deliver the property to the sheriff and the delivery shall release the third person from any liability to the judgment debtor with respect to the value of the property so delivered; or

(ii) when delivery is not made under sub-paragraph (i), or the value of any property so delivered is not sufficient to satisfy the amount of the judgment creditor's claim, or when a sheriff in writing demands it,

(A) to file with the sheriff a certificate that, describes and gives the location of any such property in the possession of the third person, states the approximate value of the interest of the judgment debtor therein and when any payment in respect thereof becomes payable to the judgment debtor, and gives the name and address of any other person with an interest in the property and the nature of that interest; and

(B) pending further order of the court, to retain possession of the property referred to in clause (A) and withhold payment of any debt, rent, legacy, share, bond, debenture or other security, currency, wages, or other demand, and the amount of the claim shall become a lien on the property held by the third person from the time of the service of the order on him or of the subsequent acquisition of any such property by him;

(e) where real property is seized under an execution order, to sell the real property as provided by the Sale of Land under Execution Act.

(2) An execution order shall,

(a) state the amount payable by the judgment debtor to the judgment creditor under the order; and

(b) be endorsed with the name and address of the solicitor of the judgment creditor and prothonotary.

(3) Any share, bond, debenture or other interest of a judgment debtor in a body corporate may be seized as provided in rule 53.04, and wages may be seized as provided in rule 53.05.

(4) On the expiration of the effective period of an execution order, no property shall be seized under the execution order, but nothing herein shall be deemed to limit the validity of the order in respect of anything previously done thereunder or to limit the right of the court or prothonotary to issue a further execution order in respect of the same or other property.
[Amend. 29/5/98]

Sheriff's duty under execution order

53.03.
(1) Upon receipt of an execution order, a sheriff shall forthwith, and not later than twelve (12) months from the date of its issue or within such further time as the court may order, comply with the provisions of the order.

(2) Where personal property is secured or concealed in a building or enclosure and it is not delivered pursuant to his demand, a sheriff shall break open or cause the building or enclosure to be broken open and shall take possession of the property pursuant to an execution order.

(3) Any one or more sheriffs may, from time to time, attach different items of property under the same execution order.

(4) Where a sheriff under an execution order seizes, or is requested by the judgment creditor to seize, property claimed by a person other than the judgment debtor, the sheriff may, before proceeding further, require the judgment creditor to give him a bond with two sufficient sureties or other form of sufficient security, to pay all costs and damages that the sheriff may sustain by reason of the seizure, detention or sale of the property.

(5) When a sheriff acts as a receiver under an execution order, the provisions of Rule 54, with any necessary modification, shall apply.

Seizure of shares, bonds, etc., of a body corporate

53.04. (1) A sheriff may seize any share, bond, debenture or other interest of a judgment debtor in a body corporate by serving an execution order upon the body corporate as provided in rule 10.03(1)(b). [Amend 12/12/74]

(2) When an execution order is served upon a body corporate, the body corporate or its transfer agent shall,

(a) not transfer the title to or deliver possession of any share, bond, debenture or other interest of the judgment debtor therein to any person until the court otherwise orders; and

(b) file forthwith with the sheriff a certificate setting out,

(i) the number and class of any share so seized, with the certificate number and the name and address of the registered owner thereof;

(ii) the number, face value and description of any seized bond or debenture with the serial number and the name and address of any registered owner thereof; and

(iii) a description of any other interest of a judgment debtor in the body corporate so retained.

(3) The court may order any seized share, bond, debenture or other interest of a judgment debtor in a body corporate to be held, released, transferred or otherwise disposed of upon such terms and conditions as it may order, and any such holding, release, transfer or disposal pursuant to the terms of the order shall relieve the body corporate and transfer agent from any liability to any person claiming an interest in any such share, bond, debenture or other interest.

Payment of wages to a sheriff

53.05. Unless the court otherwise orders, the following provisions shall apply to the payment of wages, from time to time, to a sheriff under an execution order,

(a) an employer shall only be required to pay to the sheriff fifteen per cent (15%) of the gross wages of an employee, provided that when the payment would reduce the net amount of wages payable to the employee, after the deduction of all amounts required by law to be deducted from such wages, to the amount of four hundred and fifteen dollars ($415) per week payable to an employee supporting a family, or two hundred and seventy-five dollars ($275) per week to any other employee, then only the difference by which the payment of the fifteen per cent (15%) exceeds these respective amounts shall be paid to the sheriff; [Amend. 10/89; 01/01]

(b) an employer shall pay to a sheriff the wages under paragraph (a) once every month or as otherwise agreed upon by the employer and the sheriff;

(c) wages accrue from day to day as provided by the Apportionment Act;

(d) an employer shall forthwith answer any written interrogatory sent to him by a sheriff with respect to any wages due or accruing due to an employee who is a judgment debtor;

(e) an employer who dismisses or suspends or otherwise penalizes an employee because of the seizure of his wages under an execution order or receivership order, shall be subject to punishment for contempt. [Amend. 2/4/79]

(f) wages or income deposited in any bank account, electronically or otherwise, which are not liable to seizure pursuant to this rule or are exempt by law from seizure, shall not be liable to seizure from such bank account. [Amend. 09/91]

Money in court

53.06. Where money is standing to the credit of a judgment debtor in court, the court may, on application of the judgment creditor or sheriff and on notice, make such order with respect to the money in court as it thinks just.

Execution against a partnership or any partner

53.07. An execution order against a partnership or any partner may be issued and enforced as provided in rule 7.05.

Conflicting claims to property seized under execution order

53.08.
(1) A sheriff, having several execution orders to seize the same property, shall seize the property in the sequence in which the orders were received by him.

(2) Any person, not subject to the provisions of the execution order, who claims an interest in any seized property, or any defendant who claims that an execution order was wrongfully granted or issued or an execution was wrongfully made, may,

(a) give written notice of his claim to the sheriff as provided in rule 50.02 and the provisions of Rule 50 shall apply with any necessary modification to any interpleader proceeding taken thereunder; or

(b) recover the seized property pursuant to the provisions of Rule 48, which shall apply with any necessary modification.

(3) On an application arising under paragraph (2), the court may, in addition to exercising the powers conferred by Rules 48 and 50, order

(a) any execution order or execution thereunder, or both, to be set aside upon such terms as it thinks just;

(b) any property seized under an execution order to be returned or disposed of upon such terms as it thinks just;

(c) damages to be awarded;

and grant such other order as it thinks just.

(4) When execution orders are issued out of the Supreme Court and any other court with respect to the same property, any interpleader or recovery proceeding with respect thereto shall be taken in the first proceeding in the Supreme Court or other court in which an execution order was executed.

(5) Where a party fails to assert any right or defence available to him and the failure to do so prejudices the rights of any other party, the latter may assert the right or defence for the protection of his own interest.

Sale of personal property under execution order

53.09.
(1) A sheriff who seizes personal property under an execution order shall, before he proceeds to sell the interest of the judgment debtor therein at public sale to the highest bidder, cause public notice of the time and place of the sale to be given for at least ten (10) days before the day of sale by,

(a) an advertisement published at least twice in a newspaper printed or circulating in the county in which the sale is to take place, the last advertisement to be inserted within three (3) days of the date of the sale;

(b) posting an advertisement in at least five (5) public places and on the notice board established for the posting of public notices in the court house; and

(c) causing a copy of the advertisement to be mailed, postage prepaid by ordinary mail, to the judgment debtor and person in possession of the property at the time it was seized under the execution order.

(2) Where a person, who possesses an interest senior to that of the judgment debtor in any personal property to be sold under an execution order, advises the sheriff in writing that he consents to the sale of the property including his interest therein, the sheriff shall proceed to sell the interest of that person and the judgment debtor in the property.

(3) When a sale is completed under paragraph (2), the net proceeds shall, unless the court otherwise orders, be applied in satisfaction of the senior interest in full and the balance applied on the judgment debt.

(4) A sheriff shall execute to the highest bidder at a sale or his nominee, a bill of sale of any personal property so sold that shall be sufficient to transfer to the purchaser named in the bill of sale,

(a) all the interest of the judgment debtor in the property so sold; or

(b) where the interest of any other person is sold under paragraph (2), all the interest of that person and the judgment debtor in the property so sold.

(5) When personal property is not sold at a sheriff's sale for want of bidders, the court may grant an order permitting a second sale under the same execution order upon such terms and conditions as it thinks just.

Sale of real property under execution order

53.10. A sheriff shall sell real property under an execution order in the manner provided in the Sale of Land under Execution Act.

Sale or other disposition of perishable, etc., property by court

53.11. (1) When any property taken by a sheriff under an execution order is likely to perish or materially depreciate in value before the probable sale of the property under the execution order, or the keeping of the property could result in unreasonable loss or expense, or for other just cause, the court may order the sale or other disposal of all or any part of the property in such manner and upon such terms as are just.

(2) Unless the court otherwise orders, a sheriff shall forthwith on the sale of property pursuant to paragraph (1), file a report thereon with the prothonotary, and after deducting his fees and expenses, shall dispose of the proceeds as if they had been received pursuant to a sale of the property under the execution order.

Sale of unique property under execution order

53.12. Where any personal property sought to be sold under an execution order is unique, the court may, on an ex parte application, grant an order providing that the property shall not be sold until further order of the court or upon such other terms as it considers just.

Power of court to stay execution order

53.13.
(1) Where the court is satisfied that,

(a) special circumstances exist that render it inexpedient to enforce an order for the payment or recovery of money;

(b) the applicant is for any reason unable to pay any money payable or recoverable under an order;

(c) for any other just cause;

the court may order the issue or enforcement of an execution order to be stayed, either absolutely or for such period and subject to such conditions as the court thinks just. [E. 47/1(1)]

(2) An application under paragraph (1) shall be made on notice supported by affidavit, and may be made by a judgment debtor notwithstanding that judgment was entered against him by default. [E. 47/2]

(3) An order staying execution may be varied or revoked by a subsequent order.

Assignee of judgment creditor [Amend. 12/12/74]

53.14. Where a person satisfies the court that he is the assignee of the interest of a judgment creditor under an order, the court may order that the assignee is entitled to all the rights and remedies available to the judgment creditor and to enforce the order in his own name as such assignee, and the order may so provide.

Disclosure

53.15. The court may, at any time after the issue of an execution order, order any judgment debtor or other person by oral discovery or otherwise to disclose any information he possesses, regarding any property in which the judgment debtor has an interest or which he disposed of since contracting the debt or incurring the liability in respect of which an order was obtained.
[Amend. 6/90]

FORM 53.02A
(Rule 53.02)

EXECUTION ORDER

(Title of proceeding)

TO ANY SHERIFF OR INTERESTED PERSON:

Judgment debt: $ ________
Judgment cost: $________
Less any credits:$ (_______)
Judgment Amount: $________

Solicitor's fees & disbursements on
registering judgment, notice of judgment,
and on execution: $ ________
Interest to date of
Execution Order: $ ________
Total Fees and
Interest: $ ________
Total Claim: $ ________
________________________________
FOR OFFICE USE ONLY
Sheriff's fees: $ ________
Additional Interest: $ ________
Less Additional credits: $ (_______)
Total Due: $ ________

Judgment (date)______ effective for six (6) years from judgment date.
Order renewed or reissued (date) ______ for twelve (12) months.		 UPON being satisfied that the jugment creditor has entered judgment against the judgment debtor on the __ day of ___, A.D., 20__. IT IS ORDERED THAT, Any sheriff shall seize, accept as a receiver, hold and sell at public auction, any real or personal property in which the judgment debtor has an interest including any debt, rent, legacy, share, bond, debenture or other security, currency, wages, or other demand, due or accruing due at any time while this order is valid, whether in the possession of the judgment debtor or other person and not exempt by law from seizure, that will satisfy the Judgment Amount, together with interest at the rate provided in the Interest on Judgments Act, from the date of judgment to the date of satisfaction, and to reimburse the judgment creditor for Solicitors' fees and Sheriff's fees together with interest at the same rate from the date the fees are incurred until the date of reimbursement, and to disburse the proceeds as provided by law.
[Amend. 29/5/98]


2. The sheriff, at the time of making a seizure under this order, shall, unless the court otherwise orders,

(a) serve a true copy of this order on the judgment debtor or other person in possession of the property at the time of the seizure, and

(b) make forthwith a true inventory and appraisement of the seized property and the interest of the judgment debtor therein.

3. Where there is any property in the possession of a third person that cannot be seized immediately, the sheriff shall serve a copy of this order on the third person whereupon the property, in an amount as will secure in whole or in part the amount of the judgment creditor's claim against the judgment debtor as stated herein, shall be deemed to have been seized, and the third person shall, within ten (10) days of service of the order on him and from time to time thereafter as any such additional property is available for delivery,

(a) deliver the property to the sheriff and the delivery shall release the third person from any liability to the judgment debtor with respect to the value of the property so delivered; or

(b) when delivery is not made under clause (a), or the value of any property so delivered is not sufficient to satisfy the judgment creditor's claim, or when a sheriff in writing demands it,

(A) the third person shall file with the sheriff a certificate that describes and gives the location of any such property in the possession of the third person, states the approximate value of the interest of the judgment debtor therein and when any payment in respect thereof becomes payable to the judgment debtor, and gives the name and address of any other person with an interest in the property and the nature of that interest; and

(B) pending further order of the court, the third person shall retain possession of the property referred to in clause (A) and withhold payment of any debt, rent, legacy, share, bond, debenture or other currency, wages, or other demand, and the amount of the claim shall become a lien on the property held by the third person from the time of the service of the order on him or of the subsequent acquisition of any such property by him;

4. When the sheriff serves this execution order on a body corporate with the intention of seizing any share, bond, debenture or other interest of the judgment debtor therein, the body corporate or any transfer agent thereof shall,

(a) not transfer the title or deliver possession of any such share, bond, debenture or other interest to any person until the court otherwise orders; and

(b) forthwith file with the sheriff a certificate setting out,

(i) the number and class of any share so seized, with the certificate number and the name and address of any registered owner thereof;

(ii) the number, face value and description of any seized bond or debenture, with the serial number and the name and address of any registered owner thereof; and

(iii) a description of any other seized interest of the judgment debtor in the body corporate so retained.

5. When a sheriff serves this execution order on an employer with the intention of seizing any wages or a judgment debtor hereunder, the employer shall,

(a) pay to the sheriff fifteen per cent (15%) of the gross wages of the judgment debtor, provided that when the payment would reduce the net amount of wages, payable to the judgment debtor, after the deduction of all amounts required by law to be deducted from such wages, to an amount of four hundred and fifteen dollars ($415) per week payable to a judgment debtor supporting a family, or two hundred and seventy-five dollars ($275) per week to any other judgment debtor; then only the difference by which the payment of the fifteen per cent (15%) exceeds these respective amounts, shall be paid to the sheriff hereunder;
[Amend. 6/90; 01/01]

(b) pay the wages to the sheriff hereunder once every month or as otherwise agreed upon by the employer and the sheriff; and

(c) forthwith answer any written interrogatory sent to him by the sheriff with respect to any wages due or accruing due to the judgment debtor;
[Amend. 2/4/79]

6. Any person who fails to comply with the provisions of paragraphs 3, 4 and 5 may be deemed to be in contempt of the court and may be dealt with as the court thinks just.

7. Where real property is seized under an execution order, the sheriff shall proceed to sell the property as provided by the Sale of Land under Execution Act.

8. The Sheriff shall file this execution order with the prothonotary within ten (10) days after the execution thereof and not later than the expiry of the effective date of the execution order or when directed by the court, with his/her report endorsed thereon or attached thereto. [Amend. 29/5/98]

Granted and issued at _________, Nova Scotia, this __ day of ______, 20__.

____________

PROTHONOTARY,

The Court House,

_____________ Street,

______________, Nova Scotia,

The Solicitor of the Plaintiff

is ___________, of _________ Street,

____________, Nova Scotia.

RULE 54

RECEIVERSHIP ORDERS

Application of Rule

54.01. The provisions of Rule 54 shall apply, with any necessary modification, to

(a) any person appointed a receiver under Rule 54;

(b) a sheriff, when he acts as a receiver under an attachment order granted under Rule 49 or execution order granted under Rule 53.

Appointment of a receiver to enforce a judgment or order

54.02.
(1) On an ex parte application to have a person appointed a receiver, the court may, upon being satisfied that it is just and convenient to do so and upon obtaining a satisfactory undertaking, grant an order in Form 54.02A to,

(a) fix a day for the hearing of the application in paragraph (2); and

(b) grant an injunction that is ancillary or incidental to the appointment.

(2) On an application made on notice to have a person appointed a receiver, the court may, upon being satisfied that it is just and convenient to do so and upon obtaining satisfactory security, by a receivership order in Form 54.02B,

(a) appoint a receiver;

(b) grant an injunction that is ancillary or incidental to the appointment;

(c) grant such other relief as is just. [E. 51/1]

(3) On an application under paragraphs (1) or (2) the court, in determining whether it is just or convenient that a receiver be appointed, shall have regard to,

(a) the amount of the judgment debt or other demand claimed by the applicant;

(b) the amount that may probably be obtained by the receiver;

(c) the probable costs.

(4) The provisions of Rule 46 shall apply to a receiver appointed under Rule 54, subject to any necessary modification. [E. 51/3]

(5) Unless the court otherwise orders, a bond or other security that a receiver gives under rule 46.02 shall be approved by the court and filed with the prothonotary before a receivership order is issued.

A.G. Canada v. Rahey et al. (1981), 59 N.S.R. (2d) 319 (S.C.T.D.); S.SN. 01641, Burchell, J., January 9, 1981. S127/1. An application under r. 54 for the appointment of a receiver in aid of execution of judgments under the Income Tax Act against the respondent was granted. The indebtedness of the respondent exceeded $1,000,000. The application was granted because the complexity of the respondent's business affairs was such that it constituted a substantial impediment to ordinary modes of recovery and because it was likely that a receiver would be able to realize upon very considerable assets that would otherwise be unavailable. Since the respondent was appealing the assessments on which the judgments were based, it was stated that as far as possible the receiver should not deal with the ongoing businesses in an irreversible manner.
Powers of a receiver

54.03.
(1) The court may, in a receivership order or by any subsequent order, direct that a receiver,

(a) may have the same powers as a sheriff under an execution order granted under the provisions of rule 53.02;

(b) may pay any claim or prior encumbrance or other lawful expense in order to protect any property received by him or any property of the judgment debtor held by any other person as security, and be allowed any such payment on the passing of his accounts;

(c) may sell any property received by him in the same manner as if it were being sold under an execution order, or otherwise to dispose of the same as ordered by the court;

(d) keep accounts which shall be approved and disbursed as provided in rule 46.04;

(e) do or abstain from doing such other acts or things as the court thinks just.

(2) A receiver shall forthwith on receiving any property of a judgment debtor under a receivership order, or a certificate from a third person listing property of a judgment debtor in his possession, send by ordinary mail to the judgment debtor at his last known address details of the property or a copy of the certificate.

Summary application to the court

54.04.
(1) Where a judgment debtor or other person retains possession or control of any property contrary to the provisions of a receivership order, or fails to file a certificate as required by any rule or order, or an adverse claimant claims to be entitled to the property or to have a charge or lien on it, the court may, on notice,

(a) summarily determine whether the judgment debtor or other person shall deliver the property to the receiver or whether the property should be released from the seizure;

(b) order any question at issue between the claimants to be summarily determined or tried at such time and in such manner as it thinks just;

(c) permit any person to deduct from any property of a judgment debtor in his possession or custody any offsetting debt or demand due to that person by the judgment debtor, whether the same is due or accruing due, or is liquidated or unliquidated;

(d) order a judgment debtor or any other person, to be examined or to answer any interrogatory with respect to any property, charge or lien;

(e) award costs or grant such other order as it thinks just.

(2) Unless the court otherwise orders, when an adverse claimant files a claim with the receiver and serves a copy thereof on the judgment creditor and judgment debtor, the adverse claimant shall be deemed to have become a party to the proceeding and entitled to have his claim determined as provided in paragraph (1).

Costs

54.05. The costs of an application for any order under Rule 54 and of any proceeding arising therefrom or incidental thereto shall, unless the court otherwise orders, be retained by the judgment creditor out of the property recovered by him under any receivership order and in priority to the judgment debt.

FORM 54.02A
(Rule 54.02)

INTERIM RECEIVERSHIP ORDER

(Title of proceeding)

BEFORE THE HONOURABLE JUSTICE ________ IN CHAMBERS:

Upon hearing _______, for the plaintiff and upon reading the affidavit of ________, sworn the ___ day of ____, 20__, and on file herein, and upon the plaintiff by his solicitor hereby undertaking to abide by any order the court may make as to damages in case the court should hereafter be of the opinion that the defendant shall have sustained any by reason of this order;

It is ordered that the hearing of the application by the plaintiff for the appointment of ____________, as the receiver in this proceeding to [receive the rents, profits and moneys payable in respect of the defendant's interest in the following property, namely (describe it), in or towards satisfaction of an order herein, dated the ___ day of ______, 20__, that ordered the defendant to pay to the plaintiff the sum of _________ dollars debt and the sum of dollars costs, together with interest on the order] or [as the case may be], be held at the Court House in ___________, Nova Scotia, on the __ day of________, 20__, at the hour of ___ o'clock in the noon, or as soon thereafter as counsel can be heard.

It is further ordered that the defendant, by himself, his servants or agents, is restrained, and an injunction is hereby granted restraining them, or any of them until the completion of the hearing of the above application from [selling, charging or otherwise dealing with the property]. [or as the case may be].

DATED at Halifax, Nova Scotia, this ____ day of _____, 20__.

_______________: PROTHONOTARY.

FORM 54.02B
(Rule 54.02)

RECEIVERSHIP ORDER

(Title of proceeding)

BEFORE THE HONOURABLE JUSTICE ________ IN CHAMBERS:

Upon hearing ________, for the plaintiff and ________, for the defendant, and upon reading the affidavit of, etc.

It is ordered that ___________ is appointed a receiver, upon first giving security as herein provided, to [receive the rents, profits and moneys receivable in respect of the defendant's interest in the following property, namely (describe property) in or towards satisfaction of the order herein, and dated the _____ day of ____, 20__, that ordered the defendant to pay to the plaintiff the sum of _______ dollars debt and the sum of _____ dollars costs, together with interest on the order]. or [as the case may be].

It is further ordered that _____ shall not act as a receiver hereunder until he files with the prothonotary a bond in an amount equal to one and one quarter (1¼) times the amount of the judgment herein, with two sufficient sureties or other sufficient security approved by the court, on condition that the receiver will comply with all terms and conditions of this order;

It is further ordered that the appointment of the receiver herein is made without prejudice to the right of any prior encumbrancer to take possession of the property by virtue of his lien or security;

It is further ordered that the receiver may, if he considers it necessary, [out of the rents, profits and moneys to be received by him, pay the interest due upon any prior encumbrance, according to its priorities, and be allowed the payments on the passing of his accounts]. [or as the case may be].

[It is further ordered that the tenants of the property attorn and pay their rents, in arrear or due in the future, to the receiver until the termination of this order];

It is further ordered that the receiver shall, on the ____ day of _____, 20__, and at such further and other times as may be ordered by the court, file his accounts with the prothonotary and have them passed by the court;

It is further ordered that the costs of the receiver, including his remuneration, shall not exceed _____ per cent of the amount recovered by the receiver hereunder, which costs shall be approved by the court;

And it is further ordered that the balance remaining in the hands of the receiver shall, unless it is otherwise ordered by the court, be paid forthwith by the receiver into court to the credit of the proceeding, subject to further order.

And it is further ordered that the defendant, by himself or his servants or agents, is restrained and an injunction is hereby granted restraining them, or any of them, until the court otherwise orders, from [selling, charging or otherwise dealing with the above property] or [as the case may be].

And it is further ordered that any of the parties or the receiver may apply to the court from time to time for a further order.

DATED at Halifax, Nova Scotia, this ___ day of _____, 20__.

_______________: PROTHONOTARY.

RULE 55

CONTEMPT ORDERS

Power to grant contempt order

55.01. The power of the court to punish for contempt of court may be exercised by a contempt order, which may be granted by the court, upon notice under rule 55.02 or upon order under rule 55.03. [E. 52/1/5]

Application for leave to apply for a contempt order

55.02. (1) An application shall not be made to the court for a contempt order unless the court on an ex parte application first grants leave to make the application. [E. 52/2(1)]

(2) An application for an order granting leave under paragraph (1) shall be supported by an affidavit setting out,

(a) the name, address and description of the applicant;

(b) the name, address and description of the person sought to be committed; and

(c) the facts in support of the grounds on which the contempt order is sought. [E. 52/2(2)]

(3) On the hearing of an application under paragraph (1), the court may,

(a) order a notice of application for a contempt order and any supporting affidavit to be served upon any person sought to be committed at least five (5) days before the hearing, or as the court otherwise orders; [E. 52/3(1)]

(b) dispense with service on any person of a notice of application and any supporting affidavit; [E. 52/3(4)]

(c) order service of a notice of application and any supporting affidavit to be made by substituted service as provided by rule 10.10.

(4) Unless the court otherwise orders, an order granting leave under paragraph (1) shall lapse unless notice of the application is personally served upon any person sought to be committed within twenty (20) days from the date of the granting of the order. [E. 52/3(2)]

(5) A refusal of the court to grant leave under paragraph (1) shall not prevent an applicant from subsequently making a fresh application to the court for such order. [E. 52/2(4)]

Power of court to order person to appear in court

55.03. The court may, on its own motion or on application, make an order in Form 55.03A directing a sheriff to cause any person to appear before the court to show cause why he should not be held in contempt of court and, if required, to perform or abide by such order as the court may make, and the sheriff shall have power to take the person into custody and to hold him if required by the order.

Hearing of an application for a contempt order

55.04.
(1) The court shall hear an application for a contempt order in open court unless,

(a) the application arises out of a proceeding,

(i) relating to an infant or mentally incompetent person; or

(ii) in which a secret process, discovery or invention is in issue; or

(b) it appears to the court, that in the interest of the administration of justice or for reasons of public security, the application should be heard in private. [E. 52/6(1)]

(2) A person sought to be committed shall be entitled to give oral evidence on his own behalf on the hearing of an application for a contempt order. [E. 52/6(4)]

The contempt order

55.05. (1) The court may make a contempt order in Form 55.05A which may order that,

(a) a person cited for contempt be imprisoned as ordered or until further order;

(b) when a person cited for contempt fails to comply with any term or condition in an order, he be imprisoned as ordered therein;

(c) a sheriff enter upon and take possession of any property of a person cited for contempt and receive and collect the rents, profits or income thereof until the person shall clear his contempt by complying with the terms of the order;

(d) direct a person cited for contempt to pay a fine, give security for good behaviour, pay such costs and expenses or comply with such other order as the court may grant under rule 55.09.

(2) The court may order the execution of a contempt order to be modified or suspended for such period, or on such terms or conditions, as it thinks just, and, unless the court otherwise orders, a copy of the order shall forthwith be served by the applicant on any person affected by it.

(3) When a person, pursuant to a contempt order, has been detained in custody or his property taken thereunder and he continues to disobey the terms of the order, the court may make a further contempt order upon such terms as it thinks just.

(4) Where a person cannot be served with a contempt order because he is out of the jurisdiction or cannot be found by the sheriff after exercising due diligence, the court may, on an ex parte application, issue a contempt order against the property of the person and the sheriff may execute the order in the absence of the person.

Contempt by a body corporate

55.06. Where a body corporate is guilty of a contempt of court,

(a) it may be fined by the court, and the fine may be imposed in addition to any other punishment that may be imposed for contempt;

(b) a contempt order may also be made against any officer, director, employee or agent of the body corporate who directed, authorized, assented to, acquiesced or participated in the contempt.

Contempt by a person not a party

55.07. Any person not a party, who is subject to an order and disobeys it, or who commits any other contempt, is subject to the same punishment for contempt as if he were a party.

Variation of contempt order

55.08. The court may, on the application of any person committed to prison under a contempt order, and on such terms as it thinks just,

(a) modify the contempt order;

(b) limit the term of imprisonment or discharge the committed person;

(c) give direction with respect to any property of which a sheriff has taken possession under the contempt order;

(d) grant such other relief or make such other order as the court thinks just. [E. 52/8]

Other powers of court on contempt proceeding

55.09.
Nothing in Rule 55 shall limit the powers of the court to make an order requiring a person found guilty of contempt under this rule to,

(a) pay a fine;

(b) give security for his good behaviour;

(c) pay such costs and expenses as it thinks just;

(d) when he is a party to a proceeding,

(i) have his pleading, or any part thereof, struck out;

(ii) have the proceeding stayed or dismissed, or have judgment entered against him;

(iii) prohibit him from introducing into evidence any designated document, thing or testimony;

(e) do or refrain from doing any other act as the court thinks just. [E. 52/9]

FORM 55.03A
(Rule 55.03)

ORDER FOR APPEARANCE

(Title of proceeding)

BEFORE THE HONOURABLE JUSTICE __________ [in chambers],

UPON the application of ________, and upon reading the affidavit of ___________, sworn the day of ____, 20__.

It is ordered that the sheriff of , cause A.B. to appear before the court [forthwith] [on the day of ____, 20__, at the hour of ___ o'clock in the noon], to show cause why _____ should not be held in contempt of court and, if required, to perform or abide by such other order as the court may make.

It is further ordered that the sheriff may take A.B. into custody and hold him if required hereunder.

Dated at _______, Nova Scotia, this ___ day of _____, 20__.

_______________: Prothonotary.

FORM 55.05A
(Rule 55.05)

CONTEMPT ORDER

(Title of proceeding)

BEFORE THE HONOURABLE JUSTICE ___________ [in chambers],

UPON the application of _______ of Counsel for the [plaintiff][defendant] and upon reading the affidavit of __________, sworn etc., and the affidavit of , sworn etc., of service on the [defendant] [plaintiff] of a [copy of the order of this court, dated etc.], [notice of this application and any supporting affidavit].

AND UPON it appearing to the satisfaction of the court that the [defendant] [plaintiff] has been guilty of contempt of court in that [state the contempt];

[It is ordered that for his contempt, the (defendant) (plaintiff) be committed to the Prison to be there imprisoned until ________ ];

[It is ordered that this order shall not be executed if the (defendant) (plaintiff) complies with the following terms,] [state the terms];

[It is ordered that the sheriff (__________) enter upon and take possession of all the following property of the (defendant) (plaintiff) and collect and receive the rents, profits and income thereof until the (defendant) (plaintiff) clears his contempt by complying with the following provisions of the order of the Honourable Justice _______, dated the _____ day of_______, 20__, namely, etc.]

Dated at _______, Nova Scotia, this ___ day of _____, 20__.

_____________________: Prothonotary.

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