Where debtors own land in Ontario, a Sheriff’s sale can be a useful tool to satisfy outstanding debts under Ontario Judgments. This article reviews factors to be considered when contemplating a Sheriff’s sale, and touches on some of the steps to be taken through to sale day.

1. This article is intended for informational purposes only and should not be relied upon as legal advice.
Sheriffs’ Sales of Land in Ontario
Satisfying Judgment Debts under Rule 60.07(17) – Seizure and Sale of Land
Belinda Schubert  Ellyn Law LLP  May 28, 2015
Where judgment debtors own land, a Sheriff’s sale can be a useful tool to satisfy outstanding debts. This
article reviews the factors to be considered when contemplating a Sheriff’s sale, and touches on some of
the steps to be taken through to sale day.
Deciding on a Sheriff’s Sale
The process of a Sheriff’s sale, from start to finish, will result in disbursements well in excess of $5,000,
and involve significant legal fees depending on the efficiency and experience of counsel involved. Before
embarking on the process of a sale of land, it is necessary to ascertain the amount of equity that is
available in the property, whether there are spouses or others who could claim an interest, and that
there are no other, less costly means of recovering assets.
Depending on the means of the debtor and the existence of concealed assets, commencing a Sheriff’s
sale sometimes brings a judgment debtor to the table to discuss arrangements for payment.
Once Sheriff’s sale proceedings start, it can be very difficult for a judgment debtor to delay or prevent a
sale. See, for instance, the decision of Mr. Justice David M. Brown in Worldwide Recovery Inc. v. A.W.
Anderson Management Inc., 2012 ONSC 3657 http://canlii.ca/t/frswf.
Determining the Equity Available
Without equity, proceeding on a Sheriff’s sale becomes a waste of time and money. Funds generated by
a Sheriff’s sale are typically somewhat less than the market value of the property being sold. As a result,
a certain “buffer” of equity can help to avoid rendering the sale an expensive waste of time for everyone
involved. The worst outcome for both the debtor and creditor would be a sale where the revenue
generated only covers fees, and little or nothing goes towards the judgment.
In most cases, a Sheriff will not move forward with a sale unless approximately one-third of the equity in
the property is available for recovery towards the judgment. The exact proportion is discretionary and
varies with the value of the property in question. The staff of the relevant Sheriff’s office, or counsel for
the Sheriff, can be contacted to determine the proportion of equity that must be available in a particular
property in order for the Sheriff to proceed with a sale.
Parcel Register
Obtaining a parcel register for the debtor’s property is an important step in determining the amount of
equity available in the property. These can give a creditor a good idea of available equity, with certain
limitations, including:

2. This article is intended for informational purposes only and should not be relied upon as legal advice.
- Mortgages and other interests, including debts relating to tax and utilities arrears can be
registered against a property at any time, so from the moment a parcel register is obtained, it is
limited by the possibility that another security interest may have been registered in the interim;
- The amount reflected on a charge against the property may not reflect the amount currently
outstanding. A mortgage may have been paid down significantly since the time of registration,
and lines of credit may be largely unused. As a result, there may be a great deal more equity
available towards a judgment than a parcel register would suggest;
- There may be other court judgments against the persons on title, which would not be reflected
on the parcel register. A writ search can be done to determine whether other judgments would
need to be satisfied out of the proceeds of a sale;
- Tax and utility arrears may exist that have not been registered against the property;
- Interests in property may arise under the Family Law Act or under other statutes, and would not
be ascertainable by looking at a parcel register; and
- In some cases, PPSA registrations can attach to fixtures within the property. This topic is beyond
the scope of this article.
Judgment Debtor Examination
The next step in determining the equity available in a property is an examination in aid of execution.
While an examination under Rule 60.18 of the Rules of Civil Procedure, commonly called a “judgment
debtor examination” or “JD exam”, is a staple of debt-collection strategies, it can be invaluable on a
Sheriff’s sale. The JD exam not only offers a judgment creditor the opportunity to determine the value of
a property, but it also gives the opportunity to secure undertakings to produce documents that are
critical to later steps in a Sheriff’s sale.
In conducting a JD exam with a view to proceeding with a Sheriff’s sale, counsel has the option to
include the following items in the Notice of Examination’s list of items to be brought to the examination
(under R. 34.10(3)):
- Copies of any loan or mortgage agreements relating to all security interests registered on title;
- Current statements for all security interests registered on title;
- Copies of all documents relating to any writs or liens registered on title against the property;
and
- Copies of water and tax bills.
Where the debtor complies with the Notice of Examination and brings these documents to the
examination, counsel has the opportunity to ask questions about them. Where these documents don’t
materialize at a JD exam, counsel can rely on the information on a parcel register to obtain detailed
undertakings to provide these documents. Undertakings related to mortgage or line of credit statements
should specify that the statements produced must be the most recent available.

3. This article is intended for informational purposes only and should not be relied upon as legal advice.
In questioning the debtor, counsel can ask questions to confirm the amount of equity available in the
property, and determine whether there are any unregistered interests in the property.
At the time a creditor directs a Sheriff to proceed with a Sheriff’s sale, the Sheriff will require the
judgment creditor to provide recent statements showing the balance on all mortgages and lines of credit
registered against the property. Typically these statements cannot be more than 30 days old.
Unless the JD exam is timed to occur within a short while of proceeding with a Sheriff’s sale, there are a
number of means to use a JD exam to ensure that recent statements of balances on mortgages and lines
of credit will be available at the right time. These options include:
- Asking the debtor to undertake to provide current statements on a monthly basis, or promptly
when requested;
- Attending at the JD exam with irrevocable Authorizations and Directions from the debtor to the
lenders whose interests are registered on title, to provide counsel for the creditor with current
statements, and requesting that these be executed by the debtor;
- Obtaining an undertaking to execute Authorizations and Directions as set out above.
Where a judgment debtor cooperates by signing irrevocable Authorizations and Directions at a JD exam,
this eliminates the need for repeated requests to the debtor to comply with an undertaking in this
respect. To the extent that lenders comply with requests for statements promptly, the necessary current
statements are then readily available to be provided to the Sheriff. However, Authorizations and
Directions must be prepared with great care, as errors in dating, identifying the lender or naming the
debtor can render them useless.
The decision in Citi Cards Canada Inc. v. Pleasance, 2011 ONCA 3 (CanLII) http://canlii.ca/t/2f5t0 shows
some of the challenges creditors can face without the debtor’s cooperation in obtaining mortgage
statements. Nonetheless, on rare occasions, some banks or local branches may simply provide the
statements at the request of a creditor.
Obtaining a Valuation
A further step in determining the equity available in a property is obtaining a valuation. A look at
comparable properties in the neighborhood provides a rough idea of the utility of proceeding with a
Sheriff’s sale. When directing the Sheriff to proceed with a sale, the creditor will be required to provide
a formal letter estimating the value of the property, from either a licensed real estate broker or a
certified appraiser.
Equity and Lands Held in Joint Tenancy
Where lands of an execution debtor are held in joint tenancy with others, the Sheriff may sell the
execution debtor’s interest therein, in accordance with s. 9 of the Execution Act R.S.O. 1990, c. E.24.
Only the judgment debtor’s portion of the proceeds constitutes the equity available.
The task of severing the joint interest in land falls to the successful bidder at the Sheriff’s sale. Note that
the joint tenancy may result in fewer bidders stepping up to bid on the property at a Sheriff’s sale,
because of the additional work (and cost) to the buyer of severing the joint tenancy.

4. This article is intended for informational purposes only and should not be relied upon as legal advice.
Proceeding with a Sheriff’s Sale
Writ of Seizure and Sale
In order to proceed with a Sheriff’s sale, a Writ of Seizure and Sale must be filed in accordance with the
procedure set out in Rule 60 of the Rules of Civil Procedure. This should be done as soon as possible
after obtaining a Judgment, as a creditor must wait four months after filing the Writ of Seizure and Sale
before taking any step to begin a sale of land (R. 6.07(17)). Six months must pass between the filing of
the Writ and the holding of the sale of land (R. 6.07(18)).
Writs of Seizure and Sale should be filed in all jurisdictions in Ontario in which the debtor could
reasonably have property. The jurisdictions that come into question in this respect can best be
ascertained through answers given on judgment debtor examinations, parcel register searches, and in
cases where the expense can be justified, through hiring a private investigator.
The name of the judgment debtor and the name on the Writ must match the name registered on title to
the property. If this is not the case, it will be necessary to bring a motion to amend the writ prior to
proceeding with a Sheriff’s sale (see R. 6.07(10)-(11.1)).
Direction to Enforce Writ of Seizure and Sale
At least 40 days after the filing of the Writ, a letter is to be filed with the Sheriff of the jurisdiction in
which the property is located, instructing the Sheriff to proceed with a Sheriff’s sale, and enclosing the
following items (which may vary depending on the municipality in question):
1. Direction to Enforce Writ of Seizure and Sale (Form 60F);
2. If costs of a JD exam are sought, an Affidavit confirming that the examination was conducted,
and attaching a Bill of Costs (see Rule 60.19);
3. A completed Land Sale Proceedings Form (obtainable by contacting the Sheriff’s office);
4. Writ of Execution and any amending Orders;
5. Parcel Register and last transfer document on title;
6. Letter of opinion regarding the value of the property prepared by licensed real estate broker or
certified appraiser;
7. An affidavit setting out the encumbrances registered on title and providing statements showing
the outstanding balance for each encumbrance, dated within 30 days of the date of the letter;
8. Certified cheque for $5,000 for the cost of advertising; and
9. Certified cheque for $240.00 for the Sheriff’s cost to enforce the writ.
Upon receipt of all required documents, the Sheriff will mail notice of the time and place of the sale to
the creditor, advertise in accordance with Rule 60.07, and confirm to the creditor that this has been
done.
Sale Day
On the day of the sale, counsel for the creditor must attend in order to oversee the sale proceedings and
be available in case the Sheriff and/or his or her counsel has questions or requires instructions.

5. This article is intended for informational purposes only and should not be relied upon as legal advice.
After the Sale
Approximately 30 days after the sale, the Sheriff’s office will provide counsel for the debtor and all
parties entitled to receive funds as a result of the execution with a proposed distribution. The
distribution of funds recovered is governed by the Creditors’ Relief Act, S.O. 2010 c. 16 sch. 4.
The proposed distribution will automatically recapture the $5240.00 disbursement paid to the Sheriff
before allocating payments to the parties entitled to payment upon execution (unless a partial refund
has been made in the interim, in which case the outstanding amount will be recaptured).