Hart and Gunther's Building Centre Ltd. v. Minister of National Revenue, (1986) 4 F.T.R. 176 (TD)

• Judge: Walsh, J.
• Court: Federal Court (Canada)
• Case Date: May 08, 1986
• Jurisdiction: Canada (Federal)
• Citations: (1986), 4 F.T.R. 176 (TD)

Hart v. MNR (1986), 4 F.T.R. 176 (TD)

MLB headnote and full text

Hart and Gunther's Building Centre Ltd. v. Minister of National Revenue

(No. T-556-86)

Indexed As: Hart and Gunther's Building Centre Ltd. v. Minister of National Revenue

Federal Court of Canada

Trial Division

Walsh, J.

May 20, 1986.

Summary:

Hart obtained judgment against Polar for damages for wrongful dismissal. The amount of the judgment was paid into court and Hart filed a writ of fi. fa. with the sheriff. Revenue Canada caused a certificate and a writ of fi. fa. to issue against Polar for income taxes assessed. The sheriff was ordered to distribute the monies pursuant to the Execution Creditors Act. Polar did not challenge the assessment, but Hart and another Polar creditor claimed they were adversely affected. Hart and the creditor applied for certiorari to quash the assessment, the "requirement to pay" and the certificate, and for prohibition to prohibit the Minister from continuing with the assessment or collection.

The Federal Court of Canada, Trial Division, dismissed the application on the ground that Hart and the creditor had no status to challenge the assessment. The court also held that s. 29 of the Federal Court Act precluded proceedings under s. 18 to challenge an assessment where the appeal provisions of the Income Tax Act were not first exhausted.

Courts - Topic 4046

Federal Court of Canada - Jurisdiction - Trial Division - Requirement of lack of other appeals - The Federal Court of Canada, Trial Division, referred to conflicting Federal Court decisions concerning whether s. 29 of the Federal Court Act precluded an application under s. 18 for certiorari to quash an income tax assessment, where the appeal provisions of the Income Tax Act were not first exhausted - The court favoured the decision that s. 29 did preclude the s. 18 application.

Practice - Topic 225

Persons who can sue and be sued - Individuals and corporations - Status or standing - Non-party to tax assessment - An execution creditor of a taxpayer applied to quash an assessment by the Minister - The taxpayer did not challenge the assessment - The assessment reduced the monies execution creditors would receive on a distribution - The Federal Court of Canada, Trial Division, held that the execution creditor had no proprietary interest in the funds assessed as owing in taxes, because that would involve an assumption that the assessment was invalid - Therefore, the court held that the execution creditor did not have standing to apply to quash the assessment.

Cases Noticed:

R. v. Thames Magistrates' Court ex. p. Greenbaum (1957), 55 L.G.R. 129, refd to. [para. 6].

R. v. Paddington Valuation Officer ex p. Peachey Property Corporation, [1966] 1 Q.B. 380, refd to. [para. 6].

Rothmans of Pall Mall Canada Limited and Imperial Tobacco Limited v. Minister of National Revenue et al., [1976] 2 F.C. 500; 10 N.R. 1531 (F.C.A.), consd. [para. 6].

Solosky v. The Queen, [1978] 1 F.C. 609; 22 N.R. 34 (F.C.A.), consd. [para. 6].

Canadians for Abolition of the Seal Hunt and Harrison v. Minister of Fisheries and Environment, [1981] 1 F.C. 733 (F.C.C.), refd to. [para. 6].

Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; 1 N.R. 225, refd to. [para. 6].

Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265; 5 N.R. 43; 12 N.S.R.(2d) 85; 6 A.P.R. 85, refd to. [para. 6].

Kiist v. Canadian Pacific Railway Co., [1980] 2 F.C. 650, refd to. [para. 6].

Inland Revenue Commission v. National Federation of Self-Employed and Small Businesses Limited, [1981] 2 All E.R. 93, dist. [para. 8].

WTC Western Technologies Corporation v. Minister of National Revenue (1986), 1 F.T.R. 119, disagreed with [para. 12].

Parsons et al. v. M.N.R., [1984] 84 D.T.C. 6345; 54 N.R. 227 (F.C.A.), folld. [para. 12].

Bechthold Resources Limited v. Minister of National Revenue (1986), 1 F.T.R. 123, agreed with [para. 14].

Queen, The v. Beaudry et al., 71 D.T.C. 55, refd to. [para. 14].

Lambert v. The Queen, 76 D.T.C. 6373, refd to. [para. 14].

Queen, The v. Cyrus J. Moulton Limited, 76 D.T.C. 6239, refd to. [para. 14].

Abrahams v. M.N.R., 66 D.T.C. 5451, refd to. [para. 14].

Authors and Works Noticed:

Wade, H.W.R., Administrative Law (4th Ed.), pp. 401, 544, 545 [para. 6].

Counsel:

Michael Wedekind, for the applicants;

Patrick Hodgkinson, for the respondent.

Solicitors of Record:

Foster, Wedekind, Calgary, Alberta, for the applicants;

F. Iacobucci, Deputy A.G. for Canada, Ottawa, Ontario, for the respondent.

This application was heard on May 8, 1986, at Calgary, Alberta, before Walsh, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on May 20, 1986.