Nova Scotia Annotated Civil Procedure Rules
Part 10 - Temporary Remedies
Rule 43 - Temporary Recovery Order
Educational Notes (Skip educational note)
43.01 Scope of Rule 43
(1) A temporary recovery order is available in limited circumstances, before a proceeding is heard and determined, to obtain possession of property claimed in the proceeding.
(2) A party may obtain temporary possession of property, in accordance with this Rule.
43.02 Motion for temporary recovery order
(1) A party who claims possession of property in an action or application may make a motion to the prothonotary for a temporary recovery order.
(2) The motion must be supported by an affidavit and either of the following:
(a) the bond of a recognized surety company;
(b) the party’s own bond with, unless the prothonotary permits otherwise, two or more sureties.
(3) If the party’s own bond is filed with sureties, the motion must also be supported by affidavits of the sureties proving that, collectively, they have sufficient net worth to cover a claim in an amount one and a quarter times the value of the property.
The party who seeks a temporary recovery order must provide reliable evidence of the value of the property and establish all of the following:
(a) the party is entitled to possession of the property, the party who has possession of the property is not entitled to withhold possession from the party seeking the order, a demand for possession has been made, and the demand has been refused;
(b) the party has retained a lawyer to advise the party about the motion, and received advice about the party’s entitlement to possession and the party’s obligation under the bond.
43.04 Obligation and bond securing it
(1) A party who obtains a temporary recovery order must bring the party’s claim for possession to final determination without delay and, if the party’s claim is dismissed, do both of the following:
(a) deliver the property to the party determined to be entitled to it;
(b) indemnify the party for losses resulting from the party having been deprived of possession.
(2) The bond supporting the motion for the order must be for an amount one and a quarter times the value of the property and be payable when the party fails to return property, or to indemnify another party, as required by this Rule 43.04.
(3) The bond must be executed by a recognized surety company, or be 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 either the court allows the claim of the party who makes the motion, or the court dismisses the claim and the party who obtains the temporary recovery order delivers the property to the party determined to be entitled to it and indemnifies the other party for losses resulting from having been deprived of the possession.
(5) A party’s own bond must contain the standard heading, be entitled “Bond for Temporary Recovery Order”, be signed by the party, the sureties, and a subscribing witness, and include all of the following:
(a) a reference to the motion and statement of the purpose of the bond;
(b) a description of the property;
(c) the bond of the party seeking the order and of the sureties;
(d) the conditions of the bond;
(e) a term that the bond is for the benefit of each other party to the proceeding and the parties’ heirs, representatives, successors, and assigns;
(f) a term that the bond is assignable at the direction of the court.
(6) The bond may be in Form 43.04.
(7) A surety may take security from the party who makes the motion for the temporary recovery order.
43.05 Form of order
(1) A temporary recovery order must contain the standard heading, be entitled “Temporary Recovery Order”, provide a reference to the motion made for the order, and include all of the following provisions:
(a) a direction to the sheriff to immediately take possession of the property;
(b) a description of the property;
(c) authority to come on land, open a building, take control of a moveable, and break a lock or other barrier;
(d) an injunction to restrain a person who has notice of the order from obstructing the seizure and to require a person who has a means of access to provide access;
(e) authority for the sheriff to store and protect the property, a requirement the party who obtained the order pay all expenses of enforcing it, and permission for the sheriff not to act on the order if the party fails to make a payment or provide a reasonable advance;
(f) a direction to the party who obtains the order to deliver a certified copy of the order to the party from whom the property is recovered and immediately advise the sheriff in writing of the time, date, and place of the delivery;
(g) if the property is land, a direction to the party who obtains the order to deliver a certified copy of the order to each person who has a recorded interest in the land and, on behalf of the sheriff, to record the order under the Land Registration Act or register it under the Registry Act;
(h) a provision allowing the party from whom the property is recovered to reacquire possession of the property by filing a bond and obtaining a prothonotary’s certificate in accordance with these Rules before the sheriff turns the property over to the party who obtains the order;
(i) a direction to the sheriff to turn the property over to the party who obtains the order, unless the certificate is delivered no more than five days after the day of the seizure, or the day a certified copy of the order is delivered to the party from whom the property is recovered, whichever is later;
(j) a requirement that the sheriff file a report of the actions taken under the order no more than fifty days after the date the order is issued and file a further report when further action is taken.
(2) The temporary recovery order may be in Form 43.05.
43.06 Party reacquiring property
(1) A party who wishes to keep property that is the subject of, or reacquire property taken under, a temporary recovery order must obtain a prothonotary’s certificate that the party has filed the required bond, and deliver the certificate to the sheriff before the property is turned over to the party who obtains the temporary recovery order.
(2) A party who keeps or reacquires property by obtaining and delivering a prothonotary’s certificate has the same duties as the party who obtains the recovery order to bring the party’s claim for possession to final determination, to deliver the property to the other party if the claim is dismissed, and to indemnify the other party if the claim is dismissed.
(3) The reacquiring party’s bond must be in the same amount as the bond to obtain the temporary recovery order and conform with the requirements for a bond for a temporary recovery order as if the reacquiring party were the party who obtains the order, except the bond must be entitled “Bond to Retain Property” and describe the location, at which and the way the party holds or held, the property.
(4) A party who files the party’s own bond to reacquire or keep property 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 moving party’s bond.
(5) The party’s bond may be in Form 43.06A.
(6) The prothonotary’s certificate may be in Form 43.06B.
(7) A surety may take security from the reacquiring party.
43.07 Other person reacquiring property
A person who is not a party and claims an interest in property seized, or to be seized, under a temporary recovery order may make a motion to be joined as a party or a motion for directions under Rule 43.11.
43.08 How land is seized
The sheriff may take possession of land by any reasonable means, such as changing locks or boarding up premises.
43.09 How corporate shares or securities are seized
(1) The sheriff may seize corporate shares, or securities such as bonds or debentures, by delivering a copy of the recovery order to the issuing corporation and providing sufficient information about the holder that the corporation can identify the share, or security, to which the temporary recovery order relates.
(2) A corporation to whom a temporary recovery order is delivered must do all of the following:
(a) freeze transactions in reference to shares or securities described in the recovery order;
(b) deliver to the sheriff a statement providing details of the shares or securities, including the measures that are required to record a transfer;
(c) abide by the sheriff’s directions, or make a motion for directions by a judge;
(d) take all steps necessary to prevent an interest in the shares or securities from being transferred, except a transfer permitted by the sheriff or a judge.
43.10 Sheriff to deliver property
(1) The sheriff must hold property seized under a temporary recovery order until five days after the day the property is recovered or the day a copy of the order is delivered to the party from whom the property is recovered, whichever is later.
(2) The sheriff must deliver the property to one of the following parties, in the following circumstances:
(a) the party who obtains the order, if no prothonotary’s certificate is delivered during or before the five day period;
(b) the party who delivers a prothonotary’s certificate to the sheriff before the property is delivered to the party who obtains the order.
(3) A sheriff who is unsure to whom property should be delivered, or how to make delivery, may hold the property while the sheriff requests directions of a judge.
43.11 Judge’s directions
(1) A judge may give directions on any subject regarding the enforcement of a temporary recovery order, the seizure of property, or the delivery of property, including on the following subjects:
(a) protection of property claimed to be unique;
(b) delivery of corporate shares or securities;
(c) disclosure of information about the property;
(d) sale of property that is perishable or likely to depreciate in value;
(e) sufficiency of a bond;
(f) a deadline for compliance with a provision in the temporary recovery order.
(2) The directions prevail over the terms of the temporary recovery order.
(3) A party, interested non-party, prothonotary, or sheriff may make a motion for directions.
43.12 Termination by judge
(1) A judge may terminate a temporary recovery order and give directions for release, assignment, or other disposition of the bond.
(2) The judge who terminates a temporary recovery order may, instead, grant an interlocutory injunction or a preservation order.
43.13 Final order, damages, and assignment
(1) The court may grant a remedy available at law on final disposition of a claim to recovered property, such as any of the following remedies:
(a) an order for possession of the property;
(b) an injunction requiring one party to deliver the property to another;
(c) a declaration of interests in the property;
(d) damages for the value of the property, if it can no longer be delivered and the claim to possession of the party who temporarily acquired or reacquired the property is dismissed;
(e) damages for losses caused to a party deprived of the property but found to be entitled to possession.
(2) A judge may direct the prothonotary to assign a bond to a party entitled to indemnification, and the judge may permit the party to recover up to the full limit of the bond or order a limit on the amount that may be recovered.
N.S. Gaz. Pt. 1, 12/16/2009