The New Brunswick Judgment Enforcement Act: Has Its Time Finally Come?

Article excerpt

1. INTRODUCTION

Our democracy provides a legal system that enables judicial involvement in the event of a disagreement and a final determination of the rights of the parties is usually embodied in the form of a judgment. Creditors often believe that once a judgment is obtained, the judgment debtor will in turn pay the debt. The reality is far different. A judgment from the court does not guarantee that the judgment creditor will be fully, or even partially, reimbursed. Unfortunately, a money judgment rarely results in its immediate execution, thus forcing the plaintiff to undertake additional proceedings to overcome additional obstacles on the path to debt recovery. According to the British Columbia Law Institute, these legal impediments "can be as time-consuming, elaborate, and expensive as the steps required to establish liability". (2) As a result, an effective and just civil justice system must provide the process by which individuals can enforce their judgments and obtain payment of monies they are owed. (3)

Although the mandate of the New Brunswick Department of Justice and Consumer Affairs is to promote the impartial administration of justice and to ensure protection of the public interest, (4) one questions whether these objectives are actually attained by creating a legal system to determine and recognize rights without providing adequate means to enforce those rights. (5) What is a judgment worth if one cannot enforce it? If members of the public and the business community do not have access to a fair and just legal system that includes an efficient and effective judgment enforcement component, their confidence in the system is damaged, and thus becomes a matter of public interest. (6)

The Law Reform Commission of Nova Scotia recently emphasized the vital role of judgment enforcement law within our justice system, and its impact on the public's confidence in the civil justice system:

   An enforcement system that is unduly complicated or costly, or that
   simply fails to deliver results, is certain to undermine the
   confidence of the public and foster cynicism about the
   administration of justice. Put simply, it is the responsibility of
   the state--part and parcel of the duty to maintain and promote the
   rule of law--to uphold its courts' judgments with strong and
   effective enforcement action. (7)

This declaration reflects a growing consensus in Canada on the types of reform necessary to create a "modern, efficient and balanced enforcement system". (8) This is in addition to three New Brunswick reports resulting from studies undertaken in 1976, 1985 and again in 1994, all advocating a complete overhaul of the current system of enforcement of judgments in the province via the enactment of modern judgment enforcement legislation. Kerr observed, in 1976, that our objective to strive for the pursuit of justice compels the enactment of a new judgment enforcement system which, on one hand, enables judgment creditors to recover their judicially recognized debts from recalcitrant judgment debtors while, on the other hand, protects cooperative debtors who simply do not have the means to pay. (9)

To this end, three other provinces--Newfoundland and Labrador, (10) Alberta (11) and Saskatchewa--(12) have already enacted legislation consolidating judgment creditor remedies and modernizing their respective judgment enforcement laws. Moreover, the Uniform Law Conference of Canada ("ULCC") released a Uniform Civil Enforcement of Money Judgments Act (13) in 2004, which was endorsed, albeit with reservations, by the British Columbia Law Institute in 2005 and the Law Reform Commission of Nova Scotia in 2011. (14)

Although a complete historical and legal analysis of judgment enforcement law is outside the scope of this study, this article aims to examine various issues within New Brunswick's current legal and administrative framework by reviewing current legislation in other provinces as well as the Uniform Act and the judgment enforcement act proposed in the province's 1994 report. …