Bailiffs Act, R.S.O. 1990, c. B.2

Bailiffs Act

R.S.O. 1990, CHAPTER B.2

Historical version for the period January 1, 2003 to June 16, 2004.

Amended by: 1997, c. 19, s. 27; 1998, c. 18, Sched. E, ss. 5-16; 1999, c. 12, Sched. G, s. 13; 2000, c. 26, Sched. B, s. 1; 2001, c. 9, Sched. D, s. 13; 2002, c. 8, Sched. I, s. 1; 2002, c. 17, Sched. F, Table.

Definitions

1. (1) In this Act,

“bailiff” means a person who acts, assists any person to act or holds himself or herself out as being available to act for or on behalf of any other person in the repossession or seizure of chattels or in any eviction; (“huissier”)

“business premises” does not include a dwelling; (“locaux commerciaux”)

“county” includes united counties and a territorial district; (“comté”)

“dwelling” means any premises or any part thereof occupied as living accommodation; (“logement”)

“Minister” means the Minister of Consumer and Business Services; (“ministre”)

“Registrar” means the Registrar of Bailiffs; (“registrateur”)

“regulations” means the regulations made under this Act; (“règlements”)

“Treasurer” means the Treasurer of Ontario and Minister of Economics; (“trésorier”)

“Tribunal” means the Licence Appeal Tribunal. (“Tribunal”) R.S.O. 1990, c. B.2, s. 1; 1998, c. 18, Sched. E, s. 5; 1999, c. 12, Sched. G, s. 13 (1); 2001, c. 9, Sched. D, s. 13.

Meaning of county

(2) Despite the repeal of the Municipal Act and the Territorial Division Act, in this Act and the regulations made under this Act, the term “county” has the same meaning as it did on December 31, 2002. 2002, c. 17, Sched. F, Table.

Application

2. This Act does not apply to a person while acting as a bailiff under court process. R.S.O. 1990, c. B.2, s. 2.

Registrar

2.1 The Minister shall appoint a person as the Registrar of Bailiffs. 1998, c. 18, Sched. E, s. 6.

Appointment

3. (1) No person, other than a person authorized to act as a bailiff under court process, shall act as a bailiff unless appointed by the Minister. 1998, c. 18, Sched. E, s. 7.

Idem

(2) An appointment shall designate the county for which the bailiff is appointed. R.S.O. 1990, c. B.2, s. 3 (2).

Acting outside county

4. (1) A bailiff may act as a bailiff in a county other than the county for which he or she is appointed if the consent of the Minister is first obtained. R.S.O. 1990, c. B.2, s. 4; 2000, c. 26, Sched. B, s. 1 (1).

Application for consent

(2) A person who applies for a consent mentioned in subsection (1) shall give notice of the application in the form and the manner and to the persons that the Minister specifies by order. 2000, c. 26, Sched. B, s. 1 (2).

Not regulations

(3) An order that the Minister makes under subsection (2) is not a regulation within the meaning of the Regulations Act. 2000, c. 26, Sched. B, s. 1 (2).

Factors to consider

(4) When granting a consent mentioned in subsection (1), the Minister shall consider the factors, if any, that are specified in the regulations. 2000, c. 26, Sched. B, s. 1 (2).

Costs outside county

5. (1) The costs of a bailiff for travelling or accommodation outside the county for which he or she is appointed shall not be charged as recoverable costs in a seizure, repossession or eviction unless the costs are assessed under the Costs of Distress Act and the local registrar of the Superior Court of Justice is satisfied that it was not practicable for the seizure, repossession or eviction to be made by a bailiff appointed for the county in which the repossession, seizure or eviction was made. R.S.O. 1990, c. B.2, s. 5 (1); 2000, c. 26, Sched. B, s. 1 (3).

Idem

(2) For the purpose of subsection (1), section 6 of the Costs of Distress Act applies to costs in an eviction as if such costs were costs in a seizure or repossession. R.S.O. 1990, c. B.2, s. 5 (2).

Application for appointment

6. A person applying to be appointed as bailiff shall submit an application to the Registrar that states,

(a) the name and residence of the applicant;

(b) the place where the applicant intends to carry on business;

(c) the qualifications of the applicant to act as a bailiff;

(d) any circumstance indicating that a bailiff is needed for the public convenience in the place where the applicant intends to carry on business as a bailiff; and

(e) whether the applicant has previously acted as a bailiff and, if so, where. R.S.O. 1990, c. B.2, s. 6; 1998, c. 18, Sched. E, s. 9.

7. Repealed: 1998, c. 18, Sched. E, s. 10.

Appointment by Minister

8. The Minister may appoint an applicant as a bailiff if,

(a) the applicant has complied with this Act and the regulations;

(b) the applicant is qualified to act as a bailiff; and

(c) a bailiff is needed for the public convenience in the county in which the applicant intends to carry on business as a bailiff. R.S.O. 1990, c. B.2, s. 8; 1998, c. 18, Sched. E, s. 11.

Revocation of appointment

9. Subject to section 10, the Registrar may revoke an appointment where the bailiff,

(a) has not complied with this Act or the regulations or the Costs of Distress Act; or

(b) is, in the opinion of the Registrar, incompetent or without capacity to act responsibly as a bailiff. R.S.O. 1990, c. B.2, s. 9.

Notice of proposal to revoke

10. (1) The Registrar, when proposing to revoke an appointment, shall serve notice of the proposal, together with written reasons therefor, on the bailiff. R.S.O. 1990, c. B.2, s. 10 (1).

Notice requiring hearing

(2) A notice under subsection (1) shall inform the bailiff of the entitlement to a hearing by the Tribunal if he or she mails or delivers, within fifteen days after the notice under subsection (1) is served, notice in writing requiring a hearing to the Registrar and the Tribunal, and he or she may so require the hearing. R.S.O. 1990, c. B.2, s. 10 (2).

Powers of Registrar where no hearing

(3) Where a bailiff does not require a hearing by the Tribunal in accordance with subsection (2), the Registrar may carry out the proposal stated in the notice under subsection (1). R.S.O. 1990, c. B.2, s. 10 (3).

Powers of Tribunal where hearing

(4) Where a bailiff requires a hearing by the Tribunal in accordance with subsection (2), the Tribunal shall appoint a time for and hold the hearing and, on the application of the Registrar at the hearing, may by order direct the Registrar to carry out the proposal or refrain from carrying out the proposal and to take such action as the Tribunal considers the Registrar ought to take. R.S.O. 1990, c. B.2, s. 10 (4).

Parties

(5) The Registrar, the bailiff who has required the hearing and such other persons as the Tribunal may specify are parties to proceedings before the Tribunal under this section. R.S.O. 1990, c. B.2, s. 10 (5).

Service of notice

(6) The Registrar may serve notice under subsection (1) on a bailiff personally or by registered mail addressed to his or her address last known to the Registrar and, where service is made by registered mail, the service shall be deemed to be made on the third day after the day of mailing unless the bailiff on whom service is being made establishes that he or she did not, acting in good faith, through absence, accident, illness or other cause beyond his or her control receive the notice or order until a later date. R.S.O. 1990, c. B.2, s. 10 (6).

Appeal

11. Even if a bailiff appeals an order of the Tribunal under section 11 of the Licence Appeal Tribunal Act, 1999, the order takes effect immediately but the Tribunal may grant a stay until the disposition of the appeal. 1999, c. 12, Sched. G, s. 13 (2).

Complaints

12. (1) A person may make a complaint against a bailiff to the Registrar. 1998, c. 18, Sched. E, s. 13.

Investigation

(2) The Registrar shall investigate the complaint. 1998, c. 18, Sched. E, s. 13.

Not to engage in business of collection agency

13. (1) No person shall engage in business as a bailiff while an employee of or engaging in the business of a collection agency. R.S.O. 1990, c. B.2, s. 13 (1).

Change of business address

(2) A person authorized to engage in the business of a bailiff shall notify the Registrar of any change in the address of the place of business. R.S.O. 1990, c. B.2, s. 13 (2).

Books of account

(3) Every bailiff shall keep and maintain books of account in accordance with accepted principles of double-entry bookkeeping, and shall obtain an audit of his or her books of account and financial transactions annually by a public accountant licensed under the Public Accountancy Act. R.S.O. 1990, c. B.2, s. 13 (3).

Financial statement

(4) Every bailiff shall furnish the Registrar with a financial statement in such form and at such times as the Registrar requires. R.S.O. 1990, c. B.2, s. 13 (4).

Investigation

(5) The Registrar may appoint in writing a person to investigate the business of a bailiff as a bailiff and any such person, upon the production of evidence of the appointment under this subsection, may enter between 9 o’clock in the forenoon and 5 o’clock in the afternoon the business premises of the bailiff and examine books, papers, documents and things relating to his or her business as a bailiff. R.S.O. 1990, c. B.2, s. 13 (5).

Obstruction of investigator

(6) No person shall obstruct a person appointed to make an investigation under subsection (5) or withhold or conceal or destroy any books, papers, documents or things relevant to the subject-matter of the investigation. R.S.O. 1990, c. B.2, s. 13 (6).

Trust accounts

(7) Every bailiff shall maintain an account designated as a trust account in a bank listed in Schedule I or II to the Bank Act (Canada), the Province of Ontario Savings Office, a credit union, as defined in the Credit Unions and Caisses Populaires Act or a registered trust corporation in which he or she shall deposit all money received on behalf of other persons, less any lawful fees or charges, and such money shall be kept and accounted for separately from any other money. R.S.O. 1990, c. B.2, s. 13 (7).

Note: On a day to be named by proclamation of the Lieutenant Governor, subsection (7) is amended by the Statutes of Ontario, 2002, chapter 8, Schedule I, section 1 by striking out “the Province of Ontario Savings Office”. See: 2002, c. 8, Sched. I, ss. 1, 24.

Accounting for and payment of trust money

(8) Before the fifteenth day of each month, every bailiff shall account to the persons entitled thereto for any money received in trust during the previous month and shall pay the money, less lawful fees and charges. R.S.O. 1990, c. B.2, s. 13 (8).

Disposition of unclaimed trust money

(9) Within six months after a bailiff receives money held under subsection (7), the bailiff shall make every effort to locate the person entitled to the money, and shall pay any money thereafter remaining unclaimed to the Treasurer who may pay the money to any person who satisfies the Treasurer of entitlement to it. R.S.O. 1990, c. B.2, s. 13 (9).

Bonding

14. (1) No person shall act as a bailiff unless bonded in the prescribed amount and form. R.S.O. 1990, c. B.2, s. 14 (1).

Idem

(2) The bond shall be,

(a) a personal bond accompanied by collateral security;

(b) a bond of an insurer licensed under the Insurance Act to write surety and fidelity insurance; or

(c) a bond of a guarantor, other than an insurer referred to in clause (b), accompanied by collateral security. R.S.O. 1990, c. B.2, s. 14 (2); 1997, c. 19, s. 27.

Collateral security

(3) The collateral security shall be direct or guaranteed securities of the Government of Canada or of the Government of Ontario. R.S.O. 1990, c. B.2, s. 14 (3).

Forfeiture of bond

15. (1) Where an appointment has been revoked under section 9 or 10 and,

(a) the bailiff has been convicted of an offence involving fraud, theft, assault, libel or breaking and entering under the Criminal Code (Canada) while acting as a bailiff, or of a conspiracy or an attempt to commit such an offence, and the conviction has become final; or

(b) the bailiff has had a judgment for the recovery of money paid for services not performed or based on a finding of fraud, conversion, assault, libel or trespass committed while acting as a bailiff entered against him or her and the judgment has become final,

the Minister may direct that the bond of the bailiff be forfeited. R.S.O. 1990, c. B.2, s. 15 (1).

Idem

(2) Upon a direction being made under subsection (1), the bond is forfeited and the amount of the bond becomes due and owing as a debt due to the Crown in right of Ontario. R.S.O. 1990, c. B.2, s. 15 (2).

Sale of collateral security

16. (1) Where a bond secured by the deposit of collateral security is forfeited, the Treasurer may sell the collateral security at the current market price. R.S.O. 1990, c. B.2, s. 16 (1).

Payment of proceeds

(2) The Treasurer may,

(a) assign any bond forfeited under section 15 and transfer the collateral security, if any;

(b) pay over any money recovered under the bond; and

(c) pay over any money realized from the sale of the collateral security,

to any judgment creditor of the bailiff bonded for claims arising out of the circumstance under which the bond was forfeited, or to the Accountant of the Superior Court of Justice in trust for any person who becomes such judgment creditor. R.S.O. 1990, c. B.2, s. 16 (2); 2000, c. 26, Sched. B, s. 1 (4).

Idem

(3) Where a bond has been forfeited or cancelled and the Treasurer has not received notice in writing of any claim against the proceeds of the bond or such part as remains in the hands of the Treasurer within two years of the forfeiture or cancellation, the Treasurer may pay the proceeds or part remaining to any person who made a payment under the bond. R.S.O. 1990, c. B.2, s. 16 (3).

Matters confidential

17. Every person employed in the administration of this Act, including any person making an investigation under section 13, shall preserve secrecy in respect of all matters that come to his or her knowledge in the course of his or her duties, employment or examination and shall not communicate any such matters to any other person except,

(a) as may be required in connection with the administration of this Act and the regulations or any proceedings under this Act or the regulations;

(b) to his or her counsel; or

(c) with the consent of the person to whom the information relates. R.S.O. 1990, c. B.2, s. 17.

Offence

18. (1) Every person who contravenes this Act is guilty of an offence and on conviction is liable to a fine of not more than $5,000. R.S.O. 1990, c. B.2, s. 18 (1).

Limitation

(2) No proceeding under subsection (1) shall be commenced more than one year after the facts upon which the proceeding is based first came to the knowledge of the Director designated by the Minister as the Director. R.S.O. 1990, c. B.2, s. 18 (2).

Power of Minister

18.1 The Minister may by order require the payment of fees for applications or other services under this Act and may approve the amount of those fees. 1998, c. 18, Sched. E, s. 15.

Regulations

19. The Lieutenant Governor in Council may make regulations,

(a) prescribing forms and providing for their use;

(b) Repealed: 1998, c. 18, Sched. E, s. 16 (1).

(c) prescribing the amount of bonds and collateral security to be furnished under this Act;

(d) prescribing a tariff of fees and costs payable to bailiffs under this Act or any other Act;

(e) prescribing the factors that the Minister shall consider before granting a consent mentioned in subsection 4 (1). R.S.O. 1990, c. B.2, s. 19; 1998, c. 18, Sched. E, s. 16 (1, 2); 2000, c. 26, Sched. B, s. 1 (5).

Note: Despite the repeal of clause (b), regulations made under clause (b), as that clause read immediately before March 31, 2000, continue until the Minister makes an order under section 18.1, as enacted by the Statutes of Ontario, 1998, chapter 18, Schedule E, section 15, that is inconsistent with those regulations. See: 1998, c. 18, Sched. E, s. 16 (3).

Note: Despite the repeal of clause (b), the Lieutenant Governor in Council may by regulation revoke regulations made under clause (b), as that clause read immediately before March 31, 2000, if the Minister makes an order under section 18.1, as enacted by the Statutes of Ontario, 1998, chapter 18, Schedule E, section 15, that is inconsistent with those regulations. See: 1998, c. 18, Sched. E, s. 16 (4).

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