Buck, Re, (1997) 127 F.T.R. 9 (TD)

• Court: Federal Court (Canada)
• Case Date: January 13, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1997), 127 F.T.R. 9 (TD)

Buck, Re (1997), 127 F.T.R. 9 (TD)

MLB headnote and full text

Temp. Cite: [1997] F.T.R. TBEd. MR.030

In The Matter Of the Income Tax Act

and In The Matter Of an assessment or assessments by the Minister of National Revenue under one or more sections of the Income Tax Act against Gordon Victor Buck

(ITA-5021-95, ITA-1325-96)

Indexed As: Buck, Re

Federal Court of Canada

Trial Division

Hargrave, Prothonotary

February 21, 1997.

Summary:

Buck failed to pay arrears of income tax. The Minister of National Revenue registered tax certificates against Buck's home. Then the sheriff seized Buck's shares in his company pursuant to a writ of execution. Buck moved for the return of his goods.

A Prothonotary of the Federal Court of Canada, Trial Division, dismissed the motion.

Execution - Topic 1216

Writ of execution - Seizure - Wrongful - Liability or duty of sheriff - The Minister of National Revenue registered tax certificates against Buck's property for tax arrears - Then the Minister had the sheriff seize Buck's voting shares in his construction company pursuant to a writ of execution - Buck sought the return of the shares, asserting that cumulative enforcement was an abuse of process - A Prothonotary of the Federal Court of Canada, Trial Division, held that the Minister was entitled to have the shares seized - A sheriff's duty is to seize only sufficient assets to satisfy the debt - However, the one-valuable-asset exception permits seizure and sale of an asset of greater value than the amount owed, with the balance being held for the judgment debtor.

Cases Noticed:

Gawler v. Chaplin (1848), 2 Ex. ch. 503; 154 E.R. 590, refd to. [para. 6].

Moore v. Lambeth County Court Registrar (No. 2), [1970] 1 Q.B. 560 (C.A.), refd to. [para. 6].

Wooddye v. Coles Baily of Southwark (1595), Noy 59; 74 E.R. 1027, refd to. [para. 7].

Anderson v. Liddell (1967-1968), 117 C.L.R. 36 (Aust. C.A.), refd to. [para. 7].

Power v. Grace, [1932] 2 D.L.R. 793 (Ont. C.A.), refd to. [para. 8].

Roadburg v. Cedarhurst Properties Ltd. (1979), 93 D.L.R.(3d) 582 (B.C.S.C.), refd to. [para. 8].

Authors and Works Noticed:

Dunlop, Charles Richard Bentley, Creditor-Debtor Law in Canada (1995), p. 298 [para. 7].

Counsel:

Gordon Buck, the applicant, on his own behalf;

Michael Gianocopoulos, for Her Majesty the Queen.

Solicitors of Record:

Farris, Vaughan, Wills & Murray, Vancouver, British Columbia, for Her Majesty The Queen.

This motion was heard on January 13, 1997, at Vancouver, British Columbia, before Hargrave, Prothonotary, of the Federal Court of Canada, Trial Division, who delivered the following judgment on February 21, 1997.