Judgments

Decision Information

Decision Content

T-558-78
In re the Income Tax Act, Canada Pension Plan and Unemployment Insurance Act, 1971 and in re Gero
Trial Division, Walsh J.—Montreal, June 11; Ottawa, June 14, 1979.
Income tax — Practice — Application by Crown to seize money deposited in registered retirement savings plans for taxes owing — Whether or not sums in registered retirement savings plans are seizable — Income Tax Act, S.C. 1970-71- 72, c. 63, s. 146 — Code of Civil Procedure, art. 553(7).
Robitaille v. Hins-Dion [1979] 1 S.C.R. 359, applied. Re Lifshen 25 C.B.R. (N.S.) 12, agreed with.
APPLICATION. COUNSEL:
Claude Joyal for the Queen.
No one appearing for judgment debtor.
SOLICITORS:
Deputy Attorney General of Canada for the Queen.
The following are the reasons for judgment rendered in English by
WALSH J.: This concerns a garnishee order to show cause applied for by the solicitor for Her Majesty the Queen directed to the Royal Trust Company, 630 Dorchester Boulevard West, Mon- treal, to attach the amount of approximately $10,665.49 deposited in Registered Retirement Plan number 10-242180000 in partial satisfaction of the amount of $183,118.68 due and unpaid at the time of the motion with additional interest as prescribed by subsection 161(1) of the Income Tax Act, S.C. 1970-71-72, c. 63, on the sum of $111,- 669.10 from January 25, 1978 as appears from a certificate having the same force as a judgment registered against the said Stephen Gero on Febru- ary 9, 1978. A similar garnishment is sought against the Farmers and Merchants Trust Co., 1450 St. Catherine Street West, Montreal for the amount of $4,735 deposited in Registered Retire ment Plan No. 07-05516.
Neither garnishee appeared to contest the sei zures although duly served. Nothing in section 146 of the Income Tax Act specifically provides that payments made into a registered retirement plan shall be unseizable. In the recent Supreme Court case of Robitaille v. Hins-Dion [1979] 1 S.C.R. 359 concerning the claim of a trustee in bankrupt cy to the proceeds of a life insurance policy on the life of respondent's husband which it was contend ed were unseizable, Pigeon J. in rendering the judgment of the Court stated [at page 362]:
It is quite clear that one cannot by a contract protect one's property from seizure by one's creditors except under a special enactment such as in the Supplemental Pension Plans Act (S.Q. 1965, c. 25, s. 31). Thus it is perfectly clear that one cannot make a bank deposit stipulating that the money will be exempt from seizure.
The Saskatchewan case of Re Lifshen 25 C.B.R. (N.S.) 12 held that "A registered retirement sav ings plan has certain tax deferral benefits, but that does not make it other than `property', nor does the fact that it may provide periodic payments to the owner commencing at a future date under some arrangement selected by him or, failing a selection by him, by the plan trustee. A registered retirement savings plan contract is in effect a trust for the handling of moneys belonging to the bank rupt." It was held to be vested in the trustee and did not re-vest in the bankrupt following his discharge.
It is of some interest to note that article 553(7) of the Quebec Code of Civil Procedure exempts from seizure "Pensions granted to employees out of retiring or pension funds, as well as the instal ments paid or to be paid to form such funds". It is evident that this applies only to pensions of an employee, and not to a voluntary retirement sav ings plan established by an individual for himself. Although he has the option of withdrawing the funds from time to time on paying income tax on the withdrawals in the year when they are made, or converting the deposits to a pension at any time not later than attaining the age of 71, and hence the use of the funds are subject to his control, this does not mean that they are sheltered from seizure
by his creditors, in the absence of a special provi sion to this effect. They resemble demand bank deposits made by him which are undoubtedly seizable.
On a strict interpretation of Rule 2300 of the Rules of this Court it is arguable that these sums are not debts "owing or accruing" to the judgment debtor unless and until he requests the trust com panies to make payment to him, but it would be contrary to the whole principle of garnishment proceedings to adopt such an interpretation and hence provide a means for an individual to shelter his assets from seizure by his creditors.
Whether the debtor is liable for income tax on the amounts withdrawn as the result of the seizure is another question. In the event that the seizing creditor were not the same Minister of National Revenue the issue might well arise as to the priori ty of the Minister for income tax due on the amounts withdrawn as a result of the seizure, leaving only the balance for the seizing creditor but that is not an issue which needs to be decided here.
ORDER
The garnishee orders are maintained and the Royal Trust Company and the Farmers and Mer chants Trust Co. are respectively ordered to pay to Her Majesty the Queen the sums due by them to Stephen Gero by virtue of his deposits in their respective Registered Retirement Plans Nos. 10-242180000 and 07-05516 or so much thereof as may be sufficient to satisfy the Certificate regis tered on February 9, 1978, together with the costs of the garnishee proceedings.
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.