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T-3013-74
The Queen (Plaintiff)
v.
Arthur James Williams (Defendant)
Trial Division, Kerr J.—Vancouver, April 7; Ottawa, June 6, 1975.
Income tax—Certificate of amounts owing—Order to show cause re imposing charge on land—Defendant claiming he received notices of assessment after show cause order—Notices bearing same date as Minister's certificate—Whether certifi cate valid if no prior direction by Minister under s. 158(2) of Income Tax Act—Whether s. 223 contrary to Canadian Bill of Rights—Federal Court Rules 2400(1), (2), (7), (8)—Income Tax Act, S.C. 1970-71-72, c. 63, ss. 158, 165, 169, 172, 175, 223 and Regulations, s. 900(6)—Canada Pension Plan, R.S.C. 1970, c. C-5, s. 24—Canadian Bill of Rights, S.C. 1960, c. 44, ss. 1(a), 2(e).
On August 16, 1974 a certificate of amounts owing under the Income Tax Act and Canada Pension Plan was filed, and an order to show cause imposing a charge on defendant's land was made on August 19. Defendant maintained that he received no demand for outstanding taxes, and that he did not receive notices of assessment dated August 16 until after August 21. Defendant claims that (a) the certificate is not valid unless there was a prior direction by the Minister under section 158(2) of the Income Tax Act, and (b) section 223 of the Income Tax Act is contrary to the Canadian Bill of Rights.
Held, making the order absolute, as to (a), sections 158(2) and 223 are designed to empower effective tax collection; the fact that the certificate bears the same date as the notices does not raise doubt as to its validity, or give rise to an inference that there was no prior direction by the Minister under section 158(2). The making and registering of a section 223 certificate does not end the right to contest an assessment; Rule 2400 does not provide an additional means for determining the merits of an assessment. As to (b), according to Lambert v. The Queen, "Where the fundamental right of the taxpayer to have his liability ... ultimately determined'... is preserved, such as in the Income Tax Act, the power given the Minister ... by section 223 to ensure speedy and effective tax collection does not infringe the principle of audi alteram partem nor the Canadian Bill of Rights."
Lambert v. The Queen [1975] F.C. 548, followed. ORDER to show cause.
COUNSEL:
A. Gilchrist for plaintiff. H. A. Hope for defendant.
SOLICITORS:
Deputy Attorney General of Canada for plaintiff.
Hope, Heinrich and Hansen, Prince George B.C., for defendant.
The following are the reasons for judgment rendered in English by
KERR J.: This relates to an order to show cause, dated August 19, 1974, made by this Court pursu ant to Rule 2400 of the Federal Court Rules, which imposed a charge on land or interest in land of the defendant more fully described in the said order.
The order to show cause why the land or interest should not be charged was initially returnable on October 21, 1974, and eventually, after substitu tion of new dates, came on for hearing and further consideration at Vancouver on April 7, 1975. It was heard jointly with two other similar orders to show cause, T-3007-74 and T-3008-74, the same counsel appeared for the parties, and the argu ments were common to all three orders, mutatis mutandis.
Rule 2400(1),(2),(7) and (8) are as follows:
Rule 2400. (1) The Court may make an order imposing a charge on land or an interest in land of a judgment debtor.
(2) Any such order shall in the first instance be an order to show cause, specifying the time and place for further consider ation of the matter and imposing the charge until that time in any event.
(7) On the further consideration of the matter the Court shall, unless it appears (whether on the representation of the judgment debtor or otherwise) that there is sufficient cause to the contrary, make the order absolute with or without modifications.
(8) Where on the further consideration of the matter it appears to the Court that the order should not be made absolute, it shall discharge the order.
A certificate signed by Donald Brown Cameron, Director of Collections, Department of National Revenue, Taxation, under section 223 of the Income Tax Act, and section 24 of the Canada Pension Plan, was filed in this Court on August 16, 1974. The certificate states that it was certified on that day. The body of the certificate reads as follows:
I Donald Brown Cameron, Director of Collections, Department of National Revenue, Taxation, pursuant to section 223 of the Income Tax Act, section 24 of the Canada Pension Plan and/or section 79 of the Unemployment Insurance Act, 1971, do hereby certify that in addition to such other sums as may have been previously certified in a similar manner the following amounts are now owing and unpaid by the said ARTHUR JAMES WILLIAMS.
UNDER THE INCOME TAX ACT
TAXATION YEAR
OR
ASSESSMENT
DATE AMOUNT PENALTY INTEREST
1971 $11,907.40 $500.00 $1,661.03
1972 16,970.15 500.00 1,328.86
1973 28,335.00 500.00 499.02
UNDER THE CANADA PENSION PLAN
1971 $ 172.80 —
1972 176.40
1973 180.00 — —
Constituting a total amount of $62,730.66 together with addi tional interest at the rate of 6% per annum on the sum of $57,741.75 from the 16th day of August, 1974, to date of payment.
In support of the order to show cause there was filed an affidavit of Bertram C. Callaway, an employee of the Victoria Regional Taxation Divi sion, Collection Branch, which states, inter alia, that the said certificate remains wholly unsatisfied and that the whole amount thereof is owing to Her Majesty and is payable to the Receiver General of Canada.
Section 223 of the Income Tax Act reads as follows:
223. (1) An amount payable under this Act that has not been paid or such part of an amount payable under this Act as has not been paid may be certified by the Minister
(a) where there has been a direction by the Minister under subsection 158(2), forthwith after such direction, and
(b) otherwise, upon the expiration of 30 days after the default.
(2) On production to the Federal Court of Canada, a certifi cate made under this section shall be registered in the Court and when registered has the same force and effect, and all proceedings may be taken thereon, as if the certificate were a judgment obtained in the said Court for a debt of the amount specified in the certificate plus interest to the day of payment as provided for in this Act.
(3) All reasonable costs and charges attendant upon the registration of the certificate are recoverable in like manner as if they had been certified and the certificate had been regis tered under this section.
Section 158 of the Income Tax Act is also relevant and is as follows:
158. (1) The taxpayer shall, within 30 days from the day of mailing of the notice of assessment, pay to the Receiver Gener al of Canada any part of the assessed tax, interest and penalties then remaining unpaid, whether or not an objection to or appeal from the assessment is outstanding.
(2) Where, in the opinion of the Minister, a taxpayer is attempting to avoid payment of taxes, the Minister may direct that all taxes, penalties and interest be paid forthwith upon assessment.
At the hearing an affidavit, sworn to by the defendant, was filed, stating, in part, that prior to August 21, 1974, he received no demand for out standing tax and had no communication from or with the tax department to indicate outstanding taxes on his behalf or on behalf of the B.C. Institute of Mycology, of which he was a member; that notices of assessment, Exhibits A, B, C and D to the affidavit, were the only notices of assess ment that he received in connection with the matter, and that he received them after August 21, 1974; and that he made no income that would attract the tax alleged in the exhibits, nor did the B.C. Institute of Mycology. The said notices are dated August 16, 1974.
Counsel for the plaintiff rose to tender certain documents in support of the Crown's application for the charging order, but objection to their reception by the Court was raised by counsel for the defendant, whereupon counsel for the plaintiff withdrew the tender. I do not know whether the documents would have been informative.
Section 900 of the Income Tax Regulations provides certain delegation of the powers and duties of the Minister to specified officials. It does not expressly mention section 158 of the Act, but subsection (1) of the said section 900 provides that an official holding a position of Assistant Deputy Minister of National Revenue for Taxation may exercise all the powers and perform all the duties of the Minister under the Act. Section 900(6) of the Regulations reads, in part, as follows:
900. (6) The Director, Collections Division of the Depart ment of National Revenue, Taxation', may exercise the powers and perform the duties of the Minister under
(a) section 223 of the Act,
At the hearing on April 7, counsel for the defendant argued principally to the following effect:
A. That the notices of assessment bear the same date, August 16, 1974, as the date of the certifi cate in question; that the certificate is not valid unless there was a prior direction by the Minister under section 158(2) of the Income Tax Act (or by an authorized delegate), that it must be shown in the certificate that such direction was made, but the certificate does not show that any such direc tion was made, nor has it otherwise been shown to have been made; and it is null, void and of no effect.
B. Section 1(a) of the Canadian Bill of Rights declares the right of the individual to enjoyment of property and the right not to be deprived thereof except by due process of law, and by virtue of section 2 of that statute the Income Tax Act must be so construed and applied as not to abrogate, abridge or infringe, or to authorize the abrogation, abridgment or infringement of the said rights, and in particular, by clause (e), it shall not be con strued or applied so as to deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determi nation of his rights and obligations; that section 223 of the Income Tax Act is contrary to the Canadian Bill of Rights, and the aforesaid certifi cate registered in this Court, coupled with the charging order, constitutes an infringement of the defendant's right to enjoyment of his property and
' Donald Brown Cameron, who signed the certificate in question, was such an official.
his right not to be deprived thereof except by due process of law, and he has been unlawfully deprived of his right to a fair hearing.
As to point "A", I am not able to infer or conclude from what has been presented and sub mitted herein that the certificate was made by Cameron and registered in this Court without any prior direction having been made under section 158(2) of the Act. The certificate bears the same date, August 16, 1974, as the notices of assess ment, but sections 158(2) and 223 are designed to empower effective tax collection, and I think that the fact that this certificate bears the same date as the notices of assessment should of itself not raise any doubt as to its validity or warrant an inference that there was not any prior direction by the Minister under section 158(2). The making and registration of a certificate pursuant to section 223 does not terminate the right of a taxpayer to contest an assessment, for he may do so by serving on the Minister a notice of objection in accordance with section 165 and by appealing to the Tax Review Board in accordance with section 169 or to the Federal Court of Canada in accordance with sections 172 and 175; and I think that Rule 2400 of the Federal Court Rules does not provide an additional means or procedure for determining the merits of an assessment on the further consider ation of an order to show cause under that Rule.
As to point "B", in a recent decision Lambert v. the Queen [1975] F. C. 548, Mr. Justice Addy of this Court referred to an argument respecting section 223 of the Income Tax Act, and he said, in part, as follows:
The plaintiff argues that section 223 of the Income Tax Act is ultra vires because it violates the principle of audi alteram partem or, alternatively, that it is null, void and of no effect as being contrary to section 2(e) of the Canadian Bill of Rights on the grounds that it purports to give to the Minister of National Revenue, without the taxpayer being heard or notified, the right to issue a certificate which purports to establish the amount owed by the taxpayer and of subsequently registering the certificate in the Federal Court, following which the said certificate is purported to have the same force and effect as a judgment.
In the case of the Income Tax Act should the assets of a taxpayer be seized and should it be established at a later date that there was in fact no liability for taxes, then obviously he would be entitled to restitution. The principle of audi alteram partem applies to the question of final determination of liability which is a completely different question from the temporary deprivation of assets or even from the permanent loss of assets, providing there exists a right of restitution of the assets or of compensation for their loss.
The public policy behind the power in many taxing statutes to declare an amount payable before final liability for the amount has been determined and to take effective steps of securing such payment by means of seizure of assets and of sale of same if necessary, is of course founded on the principle that the tax collector must be furnished some means of preventing tax avoidance by dissipation of assets or by the taxpayer removing them from the jurisdiction. Where the fundamental right of the taxpayer to have his liability for taxes ultimately determined on the merits is preserved, such as in the Income Tax Act, the powers given the Minister of National Revenue by section 223 to ensure speedy and effective tax collection do not infringe the principle of audi alteram partem or the Canadian Bill of Rights. The section must, of course, be read with the other provisions of the Act to which I have referred.
I reject the argument by counsel for the defend ant that section 223 of the Income Tax Act is contrary to the Canadian Bill of Rights and that the certificate produced and registered in this Court, coupled with the subsequent charging order, has deprived or is depriving the defendant of the right to a fair hearing and constitutes an infringement of his right to enjoyment of his prop erty and his right not to be deprived thereof except by due process of law.
Therefore, on the further consideration of the matter pursuant to Rule 2400, it does not appear to me that sufficient cause has been shown why the aforesaid charging order, dated August 19, 1974, should not be made absolute. The order will accordingly be made absolute, with costs, which I fix at $75.
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