Leslie Chong is a JD Candidate at Osgoode Hall Law School
The Queen’s Bench for Saskatchewan has ruled in Wira v. Jubilee Enterprises Ltd. that The Executions Act in their province does not allow for the seizure of copyright and trademarks from judgment debtors. This decision runs contrary to the longstanding precedent set in the Ontario Supreme Court case Planet Earth Productions Inc. v. Rowlands, whereby the term ‘choses in action’ under s. 19(2) of Ontario’s Execution Act was held to include copyrights held by the debtor. In reaching the decision in Jubilee, Zarzeczny J. held that the Saskatchewan legislature had not intended for the term ‘choses in action’ under s. 5(2) of The Executions Act to include copyrights and trademarks, since patents are explicitly recognized as intellectual property eligible for seizure under a writ of execution under s. 10(1) of the same Act. Given that the legislature must have knowingly omitted copyrights and trademarks (two categories often associated with patents), Zarzeczny J. ruled that they were never meant to be exigible under a writ of execution as ‘choses in action’.
In support of his decision, the court made reference to The Enforcement of Money Judgments Act (EMJA) that has been passed in Saskatchewan to replace the current Executions Act. While not yet proclaimed, Zarzeczny J. noted that s. 47 of the EMJA allows the Sheriff to seize intellectual property (commentary and analysis here), which is defined under s. 2(z) as including copyright and trademarks. Given that these newly enacted provisions explicitly include copyright and trademarks as exigible property that may be seized from the judgment debtor, the court held that the current Executions Act had never intended for them to be covered by the term ‘choses in action’ despite the Planet Earth ruling. The Jubilee decision falls in line with Professor David Vaver’s review of the Planet Earth decision “Can Intellectual Property be Taken to Satisfy a Judgment Debt?” appearing in the Banking & Finance Law Review (1991). While Saskatchewan has endeavored to clarify the scope of the meaning ‘choses in action’, the Ontario legislature has yet to make similar amendments to expressly include copyright and trademark as exigible to seizure under their Executions Act.