Judgement Enforcement in British Columbia: Pre-Judgement Remedies for Securing Recovery
Domestic Judgement Enforcement in British Columbia
Overview
British Columbia’s legal framework gives creditors options to enforce a court order in BC both pre- and post-judgement options to secure recovery, but the most decisive steps often happen before trial. The Court Order Enforcement Act (COEA) and related common-law remedies provide a toolkit for freezing assets, securing property, and increasing leverage well before a court order is issued. From garnishment and Certificates of Pending Litigation to preservation orders and Mareva injunctions, these tools demand precision, evidence, and timing – but when used correctly, they can shift the balance of power early in a dispute.
Introduction
While much attention is paid to collecting on a judgement in BC after a court victory, the groundwork for successful enforcement is often laid long before judgement. In British Columbia, creditors can use targeted pre-judgement remedies to locate, secure, or freeze assets in advance of trial. This article outlines the principal tools available under the Court Order Enforcement Act and related jurisprudence — including pre-judgement garnishment, Certificates of Pending Litigation, preservation of property orders, and Mareva injunctions — and considers how they can strengthen a creditor’s position even before the merits of a case are decided.
DOMESTIC JUDGEMENTS
This section concerns the relatively few pre-Judgement steps that can be taken prior to Trial and then collecting upon a monetary Order, followed by the steps that can be taken post-Judgement or Order.
Pre-Judgement Steps:
In British Columbia, the process used to enforce a court order in BC is primarily governed by the Court Order Enforcement Act, RSBC 1993, c. 76 (“COEA”). Currently, the COEA, long regarded as relatively toothless, is under substantial revisions. But until a new Act becomes law, the current COEA governs.
Pre-Judgement Tools
The COEA provides several mechanisms that creditors can use before judgement to secure assets and preserve recovery options.
Pre-Judgement Garnishing:
The BC Act is relatively unique in North America in that, under certain circumstances, it allows a litigant to garnish his/her opponents’ funds prior to any hearing on the merits.
In Section 3(2), the COEA sets forth the requirements for obtaining a Garnishing Order before Action, a Garnishing Order Before Judgement, and a Garnishing Order After Judgment. The Act states in part:
(1) A judge or a registrar may, on an application made without notice to any person by
(a) a plaintiff in an action, or
(b) a judgment creditor or person entitled to enforce a judgment or order for the payment of money,
on affidavit by himself or herself or his or her solicitor or some other person aware of the facts, stating,
(c) if a judgment has been recovered or an order made,
(i) that it has been recovered or made, and
(ii) the amount unsatisfied, or
(d) if a judgment has not been recovered,
(i) that an action is pending,
(ii) the time of its commencement,
(iii) the nature of the cause of action,
(iv) the actual amount of the debt, claim or demand, and
(v) that it is justly due and owing, after making all just discounts,
(e) that any other person, hereafter called the garnishee, is indebted or liable to the defendant, judgment debtor or person liable to satisfy the judgment or order, and is in the jurisdiction of the court, and
(f) with reasonable certainty, the place of residence of the garnishee,
order that all debts due from the garnishee to the defendant, judgment debtor or person liable to satisfy the judgment or order, as the case may be, is attached to the extent necessary to answer the judgment recovered or to be recovered, or the order made, as the case may be.
(2) A similar order for the attachment of debts due from a garnishee to a defendant may be made by a judge or registrar on application by or on behalf of a plaintiff who has
(a) filed an affidavit in or to the effect of Form A in Schedule 1, and
(b) issued a writ or a summons, as the case may be, for the amount of his or her claim against the defendant.
(3) An order must not be made under this Part for the attachment of a debt due to an employee for the employee’s salary or wages before a judgment or order for the payment of money has been obtained against the employee in the proceeding.
Garnishing Orders before Judgement and after Judgement are the most common. Obtaining a Garnishing Order before an Action is relatively rare.
In summary, to garnish prior to judgement:
- the claim must be for debt or a “sum certain” i.e. a liquidated claim. A claim that can be expressed in dollars and cents. Uncertain claims, or claims relying on equity, will generally be rejected;
- the target of the garnishing order is the opponent, or any third party that may owe a financial obligation to the opponent. This is usually a bank or an employer, although there is a stricture against garnishing more than 30% of the target’s wages;
- it is critical to get as much intel as possible about where the target does its banking. This is touched upon in the discussion above;
- the law has involved in such a way that good practice requires an affidavit not from the lawyer but from a representative of the client, describing the claim in sufficient detail that the Registrar can easily determine whether the amount sought to be garnished is for a debt or a liquidated sum;
- garnishing orders go by desk order – put the materials together in good order; submit them at the Registry. Cross fingers. Over the past several years, Registrars in BC are becoming increasingly strict about approving garnishing orders. Some would say too strict – until the Act is amended, the Legislature intended that there be a process to pre-judgement garnish. If judicial administration dislikes the procedure, take it up with the politicians, not the litigants. The standard that must be met is “meticulous”, although the saying “meticulous, not ridiculous” is an apt retort.
- When a bank or lender receives a valid garnishing order, affixed with a court stamp, they have no discretion. It is a valid and enforceable court order and they disobey on pain of contempt. They must pay the face value of the order into Court within seven (7) days of service of the order.
- The garnished funds sit in the court registry until they are ordered paid out to either the target or the creditor following a victory or with the consent of the parties.
- Garnishing orders are frequently attacked and in Canada there is a plethora of case law on the point. In summary however, the most usual lines of attack are that the order is flawed as the claim itself is not really for a debt or liquidated sum; that compliance with the rule was not “meticulous” i.e. there is a procedural defect; and, regardless of merits, the garnishing order is causing the target hardship. In terms of hardship, the court always has the discretion to relieve against hardship.
A garnishing order, especially one before Judgement, can have a profound effect upon the litigation, and a devastating effect upon the target, especially if it’s a business. It is akin to a tactical nuclear strike upon the opponent prior to the at times years-long slogging that comes with the discovery phase of litigation in Canada. You have tied up your opponent’s money, at least the money that could be found, and the opponent can no longer sit back and throw procedural hurdles in an effort to avoid Judgement day.
Certificates of Pending Litigation (CPL):
CPLs are another pre-judgement step. The claim must be pled in such a way that the Plaintiff claims an interest in the lands, usually a property; that money it claims has found its way into the land and that it has a prima facie claim to all or part of the land itself.
Just as with garnishing orders, CPLs are desk orders i.e.granted by a Registrar without a Hearing, and good practice is to support the Application with an Affidavit from a knowledgeable person with the client, rather than just counsel. It is also recommended that when it comes to describing the nature of the claim, do not do as is so often done and simply attach as Exhibit A the Notice of Civil Claim and aver: “this is my claim”.
Rather, realize that the Registrar either approving or disproving the application for the CPL sits at a desk and is very busy. In the affidavit in support of the application for the CPL, describe briefly why your client says they have an interest in the land i.e. that their money has found its way to property for example by way of a purchase using money usurped form your client, or renovations. That way, the Registrar does not have to go flipping through the Notice of Civil Claim (NOCC).
In other words, make it easy for the Registrar to give you what you want.
As a corollary to the above, it should be noted that in British Columbia, the judiciary is becoming ever less excited in standing behind CPLs [see for example: Nouhi v. Pourtaghi, 2019 BCSC 794]. This appears to be a brake upon an increasing trend by zealous counsel to try to dress up their claims to show an interest in land when in fact the dispute has little or nothing to with the land per se, or the evidence to show an interest in land is thin indeed. Put another way, CPLs are now being sought almost as a muscular reflex and there is now a reaction against that practice emaananting from the Bench.
The judiciary may also be sending a message to the Registrars to interpret the legislation strictly.
You can see why: a CPL, if granted, is then lodged in the Land Title Office (LTO) against the opponent’s property. The opponent cannot move the property with its title encumbered without paying the full amount of the CPL into the Court Registry. In other words, pre-judgement garnishment by another name. Further, the target cannot access any equity in the property to, for example, pay its legal fees.
CPLs in the right hands are a powerful tool.
CPLs are frequently attacked by the opponent on grounds similar to challenging a pre-judgement garnishing order – the crux of the plaintiff’s claim does not really seek an interest in land; there are procedural defects in the application. CPLs may also be defeated by paying the monetary value of the claim into Court. Painful, but it does clear the title of the Property.
Preservation of Property Orders:
If the nature of the Claim is about an interest in land, i.e. a property, or even a specific fund of money, a brokerage account for example, a somewhat neglected but potentially effective and powerful technique is a preservation of property order. BC, Ontario and Alberta have similar rules. The BC version of the Rule states:
Rule 10-1 — Detention, Preservation and Recovery of Property
Property that is the subject matter of a proceeding
(1) The court may make an order for the detention, custody or preservation of any property that is the subject matter of a proceeding or as to which a question may arise and, for the purpose of enabling an order under this rule to be carried out, the court may authorize a person to enter on any land or building.
Fund that is the subject matter of a proceeding
(2) If the right of a party to a specific fund is in dispute in a proceeding, the court may order the fund to be paid into court or otherwise secured.
Allowance of income from property
(3) If property is the subject matter of a proceeding and the court is satisfied that the property will be more than sufficient to answer all claims on it, the court at any time
(a)may allow the whole or part of the income of the property to be paid, during such period as the court may direct, to a party who has an interest in it, or
(b)in the case of personal property, may order that part of the personal property be delivered or transferred to a party.
Recovery of specific property
(4) If a party claims the recovery of specific property other than land, the court may order that the property claimed be given up to the party, pending the outcome of the proceeding, either unconditionally or on terms and conditions, if any, relating to giving security, time, mode of trial or otherwise.
Compensation for wrongful recovery
(5) Unless the court otherwise orders, if an order is made under subrule (4) in favour of a party, the order must contain the party’s undertaking to abide by any order that the court may make as to damages arising out of delivery of the property to the party or compliance with any other order.
Counsel reading this piece may ask: what is the test for achieving a preservation of property order? Or, how does this order differ from getting an injunction? Answer: not a lot. Good practice says it is advisable in seeking a Rule 10-1 Order to advise the Court that the law in the area (at least in BC) about the height of the the threshold to obtain the order is unsettled and accept the higher test for obtaining the order : that the party seeking the Order must meet the test for interlocutory injunctive relief set forth in RJR MacDonald v. Canada (Attorney General), 1994 1 SCR 311 [specifically relating to the test in the context of what used to be called in BC “Rule 44”,see also: Sutton Resources v. Sinclair, 1997 CanLii 490].
Mareva Injunctions:
Marevas are a growing area of the law. To do the jurisprudence justice would be an article on its own. Or a second-year law school class.
In short: A Mareva injunction ties up or freezes the target’s assets in the relevant jurisdiction on the basis of the applicant successfully demonstrating a prima facie case of a well-founded fear of the dissipation of assets pre-Trial.
The bar for attaining a Mareva-type order was once nearly unattainable. Today, the threshold is dropping because counsel seek Marevas more frequently, and the Canadian courts grant them more frequently.
In BC, the test for a successful Mareva is stated as follows:
- 1. establish the threshold issue of a strong prima facie or good arguable case; and,
- 2. consider all the relevant factors in balancing the interests of the parties, including – without limitation – the existence of eligible assets and a real risk of disposal or disposition of those assets.
Mareva are often sought on an ex parte basis — no notice is givento the target. The idea is that there is imminent harm that will result if the target realizes its assets are under threat by the giving of notice. As with any ex parte application in Canada, the practice is that the applicant must make full and frank disclosure to the Court when seeking the Mareva. Counsel are required to present all known facts to the Court. Favourable ones, and unfavourable ones.
These applications can work one of two ways: either the Mareva is obtained and the target is left to attack it; or the order is on a short string until it expires– 14 days or 30 days or what have you. The order, assuming it’s granted, is served upon the target and the target has an allotted amount of time to attack the Mareva.
The general rule in Canada, subject to a few exceptions [see the extraterritorial approach to anti-suit injunctions in Amchem Products Incorporated v. British Columbia (Workers Compensation Board), 1993 1 SCR 897], is that court orders do not extend beyond the territorial boundaries of the issuing court. An order pronounced in BC is not enforceable in Alberta subject to the law concerning mutual recognition of judgements discussed below. In such cases, a litigant must apply in Alberta to have its order recognized.
So it is with Mareva orders. That is, it was until the Canadian Courts’ decision in Google Inc. v. Equustek Solutions Inc., 2017 SCC 34. In that case, the plaintiff Equustek argued that it was the victim of a whole range of business torts suffered at the hands of its erstwhile distributor, Datalink. Datalink had fled the jurisdiction and abandoned the litigation. Four of Equustek’s claims were in conspiracy, passing off, theft of trade secrets and breach of confidence. There was some sparse evidence that Datalink was still in business and using a range of websites searchable on Google to do business.
Equustek argued that due to the worldwide nature of Google’s business, an order involving just BC would be ineffective and unjust. Put another way – it would not have the desired result. It would not prevent the target from peddling its allegedly pirated wares to the online public.
The BC Chambers Judge agreed with Equustek and granted a “worldwide order”, enforceable against any person and any entity the world over, most particularly, Google [2014 BCSC 134]. The BC Court of Appeal disagreed [2015 BCCA 265] and vacated the worldwide Mareva injunction. The SCC restored the Chambers Judge’s decision [2017 SCC 34].
Much ink has been spilled in Canada about the Equustek case, with proponents and detractors arguing about the legality and appropriateness of a BC Court presuming to make an order binding upon the world.
Nonetheless, in Canada, worldwide Marevas are possible.
Conclusion
Pre-judgement remedies in British Columbia are powerful but procedural minefields. The COEA offers creditors real opportunities to lock down assets early, yet each step — whether a garnishing order, CPL, preservation order, or Mareva, requires strict compliance and credible evidence. Courts expect applications that are “meticulous, not ridiculous.” Used strategically, these remedies do more than preserve recovery; they create leverage, often prompting resolution long before trial.
Related articles:
Post-Judgement Execution in British Columbia: From Paper to Payment