A/S Nordlandsbanken v. Nor-Fisk I ( The )
T-295-91
Muldoon J.
5/3/93
22 pp.
Process-Court bailiff, Krochenski, seeking "poundage" and "attendance fees" for services in executing Court's order for sale and commissions for sale of two vessels -- Federal Court Act, s. 55(5) providing where no sheriff or marshal, process of Court shall be directed to such other person as may be provided by Rules, and such person entitled to take and retain for own use such fees as may be provided by Rules -- R. 352 providing sheriffs entitled to fees and poundage prescribed in Tariff A -- R. 360 providing in any case where no sheriff or marshal or sheriff or marshal unable or unwilling to act, any process may be issued to any person to whom process of superior court of province in which process to be executed could be issued -- No federal marshal and no provincial sheriff able to execute process of Federal Court pursuant to RR. 360, 1003 -- Civil execution services in British Columbia privatized -- Private court bailiffs replacing provincially employed sheriffs -- Contracting to perform civil execution services in various areas of province -- Exercise powers formerly exercised by sheriffs -- Designated "court bailiffs" pursuant to Sheriff Act, s. 2.1 -- Under s. 2.1(1) court bailiff to exercise powers of sheriff for sole purpose of executing writs and warrants issued in civil proceeding -- S. 2.1(2) providing court bailiff may collect fees sheriff entitled to collect, retain portion thereof as provided under contract and remit balance to government -- (1) Order for sale and commission for sale "process" within meaning of R. 360 -- R. 360 made as contemplated by Federal Court Act, s. 55(5) -- "Process" expressed in R. 360 must be "process" contemplated in s. 55(5) which is comprehensive, generic "moyens de contrainte" -- Two versions of section and of Rule equally authoritative and Rule creature of s. 55(5) -- "Process" meaning metaphysical determinations, instrumentalities and measures of constraint, forcible restraint and compulsion issued to exact compliance with Court's orders, seizures, warrants, subpoenas, injunction and all other coercive measures emanating from Court -- Whole continuity of arresting, seizing and selling vessel regardless of owner's wishes effected through process of Court -- (2) Krochenski person to whom process of superior court for province in which process to be executed could be issued within R. 360 -- Whether Krochenski qualifies to have process of Federal Court issued to him in consonance with laws of Canada determined by that legislation's adoption of test of being one to whom process of particular provincial superior court could be issued -- As writs and warrants (Sheriff Act, s. 2.1) included in definition of "process", court bailiff person to whom process of superior court of B.C., province in which Federal Court's process to be executed could be issued, in contemplation of R. 360 and s. 55(5) -- Need not be person to whom all process of provincial superior court could be issued -- (3) In discharging responsibilities imposed upon him by commission for sale and order for sale Krochenski not exercising powers of sheriff for sole purpose of executing writs and warrants in civil proceedings within Sheriff Act, s. 2.1 -- Merely derived qualification to be empowered pursuant to federal legislation (Federal Court Act and Rules) from Sheriff Act, but then exercised full, original federal powers -- (4) Sheriff Act, ss. 2.1 and 9 not prohibiting Krochenski from demanding or receiving any remuneration for work done in discharging responsibilities imposed by commission for sale and order for sale -- Once qualified to be federal marshal or sheriff, by virtue of provincial status, adopted by indirect reference in Federal Court Act and Rules, no provincial empowerments or prohibitions apply unless also adopted in federal law by reference to Sheriff Act -- Sheriff Act, s. 2.1(2) operating only in province for provincial, not federal purposes -- S. 55 and R. 360 not adopting ss. 2.1(2), 9 -- Krochnenski bound by R. 1008 and Tariff A -- Federal Court Rules, C.R.C., c. 663, RR. 352, 360 (as am. by SOR/79-58, s. 2), 1008, Tariff A, ss. 7, 9 -- Federal Court Act, R.S.C., 1985, c. F-7, ss. 13, 40, 55, 56 -- Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C. 1985, Appendix II, No. 5], ss. 92(14), 101 -- Sheriff Act, R.S.B.C. 1979, c. 386, ss. 1 (as am. by S.B.C. 1989, c. 38, s. 37), 2.1 (as enacted idem, c. 72, s. 25), 9 -- Interpretation Act, R.S.C., 1985, c. I-21 -- Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, ss. 6, 7, 13.