Bijural Terminology Records

Common Law

sale under an order of a court

Civil Law

sale under an order of a court or by judicial authority

Title of the Legislative Text

National Energy Board Act, R.S.C. (1985), c. N-7

Provision
114. (1) It is hereby declared that nothing in this Act restricts or prohibits any of the following transactions:
  • (a) the sale under execution of any property of a company; or

  • (b) the creation of any lien, mortgage, charge or other security on the property of the company, or the sale, pursuant to an order of a court, of any property of the company to enforce or realize on any such lien, mortgage, charge or other security.

Problem

The phrase "sale, pursuant to an order of a court, of any property of the company to enforce or realize on any such lien, mortgage, charge or other security"/vente en justice de biens de la compagnie pour la réalisation de la sûreté is no longer appropriate in civil law with respect to hypothecs, given the new hypothecary recourses available. More specifically, considering the context, the hypothecary recourse of sale by judicial authority should be included in the provision.

Solution

Paragraph 114(c) is added to set out common law enforcement methods. It reiterates the existing text, indicating however its application outside of Quebec. Paragraphs 114(1)(d) and (e) are added to set out civil law enforcement methods. Paragraph 114(1)(d) outlines the sale under an order of a court and the hypothecary recourse of sale by judicial authority. Paragraph 114(1)(e) sets out particularities of the method of enforcing prior claims and rights of retention.

Harmonized Provision

114. (1) It is hereby declared that nothing in this Act restricts or prohibits any of the following transactions:

  • (a) the sale under execution of any property of a company; or

  • (b) the creation of any lien, mortgage, hypothec, charge or other security on the property of the company, or of any prior claim or right of retention within the meaning of the Civil Code of Québec or any other statute of the Province of Quebec with respect to property of the company;

  • c) the sale, elsewhere than in the Province of Quebec, under an order of a court of any property of the company to enforce or realize on any lien, mortgage, charge or other security on the property of the company;

  • (d) the sale, in the Province of Quebec, under an order of a court or by judicial authority, of any property of the company to enforce or realize on any hypothec, charge or other security on the property of the company; and

  • (e) the exercise of remedies for the enforcement and realization of any prior claim referred to in paragraph (b) or the exercise of any right of retention referred to in that paragraph.

Federal Law-Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4, s. 106.

Date modified: