Civil Procedure Rules of Nova Scotia  
To conduct a search focused only on the
Civil Procedure Rules, use this search box
   

Part 10 - Temporary Remedies

Rule 44 - Attachment

Scope of Rule 44
44.01 (1) An attachment order is available in limited circumstances to preserve assets to satisfy a judgment that may be granted in the future.
  (2) A party may obtain an order attaching assets of another party, in accordance with this Rule.
       
Motion for attachment
44.02 (1) A party who claims for damages against another party, and has evidence establishing one of the following grounds against the other party, may make an ex parte motion to the prothonotary for an attachment order:
   
(a)
the other party resides out of Nova Scotia and does not appear to have assets in Nova Scotia, or assets that can be obtained by order or request of the court, sufficient to satisfy a judgment for the amount of the claim;
   
(b)
the other party is a corporation not registered under the Corporations Registration Act;
   
(c)
the other party evades delivery of the document originating the proceeding;
   
(d)
the other party leaves, or is about to leave, Nova Scotia with intent to defraud a creditor or to avoid delivery of the document originating the proceeding;
   
(e)
the other party does anything to put an asset out of the reach of a creditor, or is about to do so;
   
(f)
the other party fraudulently incurred a debt or other liability at issue in the proceeding.
  (2) The motion must be supported by an affidavit and either the bond of a recognized surety company or, unless the prothonotary permits otherwise, the party’s own bond with two or more sureties.
       
Affidavit
44.03 (1) The party who makes a motion for an attachment order must establish all of the following by affidavit:
   
(a)
the amount of a claim for a debt or other liquidated demand, or the amount likely to be assessed on a claim for damages;
   
(b)
the amount the party proposes for a limit to the attachment order, which amount may be equal to or less than the value of the moving party’s claim;
   
(c)
that there is evidence supporting the party’s claim;
   
(d)
one or more of the grounds for obtaining an attachment;
   
(e)
retention of a lawyer to advise the party about the motion and the fact, without details, that the lawyer provided advice about the requirements for an attachment and obligations under the bond.
  (2) A party who claims the other party fraudulently incurred a debt or other liability must provide all of the following by affidavit:
   
(a)
all evidence, without hearsay, reasonably available to the party that establishes the claim of fraud;
   
(b)
reference to all information known to the party that tends to contradict the claim of fraud;
   
(c)
disclosure of information known to the party that tends to support the claim of fraud but which is not reasonably available to the party for inclusion in an affidavit.
  (3) If the party’s own bond is filed, the motion must also be supported by affidavits of two or more sureties proving that, collectively, they have sufficient net worth to cover a claim in an amount one and one quarter times the limit of the proposed attachment order.
       
Obligation and bond securing it
44.04 (1) The party who obtains an attachment order must bring the party’s claim for judgment to final determination without delay and, if the claim is dismissed or it is allowed in an amount substantially less than the limit of the order, indemnify the other party for losses caused by the attachment.
  (2) The bond supporting the attachment must be for an amount one and one quarter times the limit of the attachment order.
  (3) It must be executed by a recognized surety company, or signed and sealed by the party who makes the motion and, unless the prothonotary permits otherwise, at least two sureties.
  (4) The bond must continue until both of the following conditions are fulfilled:
   
(a)
the party who obtains the attachment order brings the claim to a final determination;
   
(b)
either the court allows the claim, or the court dismisses the claim and the party who obtains the attachment order indemnifies the other party for losses resulting from the attachment.
  (5) A party’s bond must be entitled “Bond for Attachment” and, otherwise, be as provided in Rule 43.04(5), of Rule 43 - Temporary Recovery Order, except references are to be to an attachment order rather than a recovery order.
  (6) The bond may be in Form 44.04.
  (7) A surety may take security from the moving party.
       
Attachment
44.05   The interest of a party in one of the following kinds of property is attached when a certified copy of the attachment order is recorded, registered, or delivered as follows:
   
(a)
land under the Land Registration Act, when the copy, and the description referred to in subsection 71(1) of the Land Registration Act, are recorded in accordance with that legislation;
   
(b)
land under the Registry Act, when the copy, and the description and appraisement referred to in subsection 23(1) of the Registry Act, are registered in accordance with that legislation;
   
(c)
a moveable in the actual possession of the party, when the copy is delivered to the party;
   
(d)
a moveable held by another person, when the copy is delivered to the other person;
   
(e)
a debt or obligation due, or to come due, when the copy is delivered to the person who owes the debt or obligation;
   
(f)
corporate shares or securities, when the copy is delivered to the issuing corporation;
   
(g)
other property, when the copy is delivered to the party.
       
Attachment order
44.06 (1) The party who seeks an attachment order must state an amount as the limit of the value of the property to be taken and held by the sheriff, and the amount must be equal to, or less than, the value of the party’s claim against the party whose property is to be attached.
  (2) An attachment order must contain the standard heading, be entitled “Attachment Order”, provide a reference to the motion for the order, and include all of the following:
   
(a)
a statement giving effect to the attachment, stating when it is effective, and limiting the value of property to be attached;
   
(b)
a direction to the sheriff to take and hold, as a receiver, attached property about which the sheriff becomes informed including, if information is provided about it, a debt, rent, legacy, share, bond, debenture, other corporate security, currency, fund, demand, or demand accruing due;
   
(c)
a mandatory injunction requiring the party, and a person who holds property in which the party has an interest, to immediately deliver the property to the sheriff, unless the sheriff allows otherwise in writing;
   
(d)
a mandatory injunction requiring a person who owes a debt or other obligation to the party to pay the debt to the sheriff immediately or immediately after it comes due, and to liquidate and pay to the sheriff any other liquidible obligation as soon as possible under the terms for liquidating the obligation, unless the sheriff permits otherwise in writing;
   
(e)
permission, but not a requirement, for the sheriff to make inquiries;
   
(f)
a direction for the sheriff to act on relevant and reliable information;
   
(g)
a mandatory injunction requiring a person to whom a certified copy of the order is delivered to answer the sheriff’s questions and provide information about attached property;
   
(h)
a direction to the party who obtains the attachment order to immediately deliver a certified copy of the attachment order to the party whose property is attached, and, if land is to be attached, to take steps on behalf of the sheriff to effect recording under the Land Registration Act or registration under the Registry Act;
   
(i)
permission for the sheriff to make reasonable arrangements for storage and protection of property and a direction to the sheriff to make an inventory of the property taken and held including a description of each attached item, its location, and, if land is to be attached, its value, and provide a copy of the inventory to a party on request;
   
(j)
as conditions of the sheriff acting on the order, requirements that the moving party pay the expenses of attachment, taking possession, and holding the property, and provide a reasonable advance required by the sheriff;
   
(k)
a direction that the sheriff cease taking property when the value of the attached property reaches the stated limit;
   
(l)
a provision that the attachment terminates, obligations to hold property or to make a payment to the sheriff cease, and the sheriff must return property delivered and pay to the other party debts collected under the order if the party whose property is attached delivers a prothonotary’s certificate under Rule 44.07.
   
(m)
a provision that the order continues until the claim for damages is dismissed or a judgment for the damages is satisfied, unless it is terminated by delivery of a certificate of the prothonotary or a judge orders termination;
   
(n)
a requirement the sheriff file a report of the actions taken under the order no more than seventy days after the date the order is issued and file a further report when further action is taken;
   
(o)
a statement saying “Failure to comply with this order may be punished as a contempt.”
  (3) The attachment order may be in Form 44.06.
  (4) An attachment order does not attach property exempt from execution.
       
Terminating attachment
44.07 (1) A party whose property is attached may cause the attachment order to be terminated by obtaining from the prothonotary, and delivering to the sheriff, the prothonotary’s certificate that the party has filed a bond to terminate the attachment.
  (2) A party who causes an attachment order to be terminated must promise the party will have sufficient assets to satisfy a judgement in favour of the other party of a value equal to or greater than the amount of the limit of the attachment order.
  (3) The party’s bond must conform with the requirements for a moving party’s bond as if the party seeking termination were the party seeking attachment, except for each of the following differences:
   
(a)
the bond must be entitled “Bond to Terminate Attachment”;
   
(b)
the bond must be payable when execution is levied against the party on the claim for which the attachment was issued and the execution fails to attach assets of a value equal to, or greater than, the amount of the limit of the attachment order;
   
(c)
the bond must continue until the claim for damages is dismissed, or the claim is allowed and the judgment is satisfied fully or to the extent of the limit of the attachment order.
  (4) A party who files the party’s own bond to terminate an attachment must attach to the bond affidavits of the sureties proving that, collectively, the sureties have sufficient net worth to cover a claim in the amount of the attachment order.
  (5) The party’s own bond may be in Form 44.07A.
  (6) The prothonotary’s certificate may be in Form 44.07B.
  (7) A surety may not take security from the terminating party, but may take security from another person.
       
More than one attachment
44.08   The sheriff must seize and hold property under attachment orders against the same person in chronological sequence of the orders, such that when assets are held to the limit of the first order the sheriff begins to comply with the next.
       
Disputes about attached property
44.09   Disputes about whether the party against whom an attachment order is issued has an interest in something, or an interest that must give way to another interest, may be determined under Rule 76 - Interpleader.
       
Motion to judge
44.10   A party, or sheriff, may make a motion to a judge to do any of the following about an attachment order:
   
(a)
terminate the attachment order, if the party who obtained it does not make sufficient efforts to bring the claim to a final determination;
   
(b)
terminate the order, if the judge is satisfied the order is not required to secure the party who obtained it, there were not grounds for the order, or there are other good reasons for termination;
   
(c)
vary the order;
   
(d)
amend the order, including an amendment having retroactive or retrospective affect;
   
(e)
order sale of attached property, if it is perishable, or if both of the following apply:
     
(i)
the property will be worth substantially less when the claim to judgment is finally determined,
     
(ii)
the property does not have substantial intangible value for a party opposed to the sale;
   
(f)
order a person to disclose information to the sheriff or a person on behalf of the sheriff;
   
(g)
give directions to the sheriff;
   
(h)
substitute an experienced insolvency practitioner for the sheriff;
   
(i)
direct the prothonotary to assign a bond to a party entitled to indemnification, unconditionally or on a condition that limits the amount that may be recovered under the bond.
       

<< GO BACK TO PART 10, RULE 43
TEMPORARY RECOVERY ORDER

<< GO TO INDEX OF RULES >>

GO TO PART 10, RULE 45
SECURITY FOR COSTS >>