Executing or contesting a decision

Further to an application to the Tribunal administratif du logement, a hearing was held and you received a decision. The decision either dismisses the application or allows it in whole or in part.

The applicant has two choices:

1. accept the decision as is, with a view to its execution;
2. contest the decision because he or she is dissatisfied with it.

The defendant also has two options:

1. freely accept the decision and execute it voluntarily;
2. contest the decision because he or she is dissatisfied with it.

If you are interested in the compulsory execution of a decision, continue reading. If you want information about contesting it, consult the section Contesting a Decision.

Executing a decision

If the defendant refuses to comply with the decision voluntarily, or all negotiations with a view to executing the decision fail, the applicant must take steps to force the defendant to comply with the decision.

Before proceeding with the compulsory execution of a decision, it is sometimes preferable to find common ground.

When does a decision become executory?

First, it must be determined whether the decision indicates a specific deadline for its execution. For example, in the case of major repairs, eviction from the premises or exceptional urgency, an administrative judge may, if he or she finds it expedient, order the provisional execution of the decision, in whole or in part, or order its execution by a specific deadline.

If the decision does not indicate a specific deadline for its execution, the deadline depends on the type of application.

It is important to note that, as with any other judgment, a decision by the Tribunal must be executed within 10 years of the date on which it is rendered. The creditor's right is prescribed (extinguished) if that time is allowed to lapse.

Procedure for a compulsory execution

Before initiating the procedure for executing a decision ordering a debtor to pay a sum of money, and to avoid unnecessary fees and steps, the creditor should have some basic information about the debtor, such as the debtor's sources of income, the type of property in the debtor's possession and whether it is worth seizing.

To obtain the compulsory execution of a decision, the applicant-creditor provides a bailiff with the instructions for execution and the decision, and pays the bailiff the amount required for the execution. The bailiff then completes a notice of execution, files it at the office of the Court of Québec with a copy of the decision, and serves it on the defendant-debtor.

However, if another creditor has already sought the compulsory execution of a decision for another judgment against the same debtor, the instructions for execution must then be provided to the bailiff who is already responsible for the case.

Small claims (20-day execution deadline)

A small claim is an application the sole object of which is to recover $15,000 or less. For example, a claim for $5 000 in unpaid rent is a small claim, whereas an application to resiliate a lease accompanied by a claim for the recovery of $5 000 in unpaid rent is not.

In the case of a small claim before the Tribunal administratif du logement, the creditor can proceed as was explained in the previous section.

Moreover, if the only execution measure planned is garnishment of the debtor’s income (garnishing wages), the applicant-creditor can prepare the notice of execution without the services of a bailiff. The notice is then filed at the office of the Court of Québec (Small Claims Division), signed by the court clerk, and notified on the debtor and garnishee by the creditor. The court clerk can assist the creditor with the execution of the judgment.

If the applicant-creditor decides to proceed with the preparation of the notice of execution on his or her own, administration of the income seized is entrusted to the court clerk of the Court of Québec, including its receipt and distribution.

The costs for the bailiff or court clerk paid by the applicant-creditor for the execution of a judgment may be claimed from the debtor, within the limits set by the tariffs prescribed for that purpose. On execution, the debt is payable immediately by the debtor.

Most common methods of execution

Garnishment

• Income

For this method of execution, the name and full address of the employer of the party against whom a decision was rendered is required. However, the full salary cannot be seized from the employer; only part of it may be seized and the amount varies according to the debtor's income and the number of dependants.

• Accounts in a financial institution

To seize amounts in the debtor's bank account, the name and full address of the debtor's financial institution must be obtained.

• Seizure by garnishment of claims

Any sum owed to the party against whom a decision was rendered may be seized (other than amounts covered by the exceptions or restrictions provided for by law). The names and addresses of the persons who owe the amounts must be provided; the amounts can then be seized directly from the persons concerned.

Seizure of movable property in execution

The debtor's movable property may be seized by a bailiff, who then must sell it by judicial sale. The proceeds from the sale will be used to reimburse the creditor in whole or in part. According to the law, the bailiff may be required to exclude certain items, in particular:

• the movable property that furnishes or decorates the debtor's main residence, used by and necessary for the life of the family, up to a market value of $7 000 established by the bailiff and, where applicable, to reach that amount, personal items that the debtor chooses to keep;
• food, fuel, linens and clothing necessary for the life of the debtor and his family;
• instruments of work needed for the personal exercise of the debtor's professional activity.

Other items that cannot be seized include family portraits, papers and other documents, as well as medals and other decorations.

If the debtor has movable property at the residence of another person, the movable property at that residence can be seized.

Eviction of the lessee and the other occupants

If a decision orders the eviction of the lessee and the other occupants of a dwelling and they refuse to comply, the lessor may instruct the bailiff to proceed with the eviction from the dwelling. A notice of execution for the eviction of a lessee and the other occupants must be served by the bailiff at least five days previously. That notice informs the lessee that he or she must remove the movable property within the time period indicated or pay the costs incurred to have it done, failing which the movable property will be considered to have been abandoned. The bailiff may then sell the movable property in favour of the lessor-creditor, give it to a charitable organization or, if it cannot be given away, dispose of it otherwise at his or her discretion.

However, an eviction cannot take place on a holiday or during the period from December 24 to January 2.

In all cases, the bailiff is authorized by law to use the force necessary to carry out an eviction, while complying with the required procedures.

Contestation of a compulsory execution

A debtor may oppose a compulsory eviction, as the case may be, for example, to have it cancelled or to have excluded a part of the property the bailiff is preparing to seize. It is then up to the Court to rule on the merits of the opposition.

Note: When a decision resiliates the lease for non-payment of the rent and if the lessee has paid the rent that is due, the costs and interest before the decision, the plaintiff cannot undertake the eviction procedure.