Piccott v. Minister of National Revenue, (2004) 326 N.R. 177 (FCA)

• Judge: Desjardins, Nadon and Pelletier, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: June 22, 2004
• Jurisdiction: Canada (Federal)
• Citations: (2004), 326 N.R. 177 (FCA);2004 FCA 291

Piccott v. MNR (2004), 326 N.R. 177 (FCA)

MLB headnote and full text

Temp. Cite: [2004] N.R. TBEd. OC.005

Her Majesty the Queen (appellant) v. James Andrew Piccott (respondent)

(A-651-02; 2004 FCA 291)

Indexed As: Piccott v. Minister of National Revenue

Federal Court of Appeal

Desjardins, Nadon and Pelletier, JJ.A.

September 14, 2004.

Summary:

The Minister of National Revenue executed certificates pursuant to the Income Tax Act and the Excise Tax Act for amounts due by Piccott under those Acts. A sheriff, pur­portedly acting on instructions from the Canada Customs and Revenue Agency pur­suant to the provisions of the Newfound­land and Labrador Judgment Enforcement Act, seized property from Piccott. Piccott moved for an order quashing the certificates. Alter­natively, he sought a stay of enforce­ment of the certificates and an order varying the amounts sought to be collected.

The Federal Court of Canada, Trial Divi­sion, in a decision reported at 224 F.T.R. 112, held that the Minister should have obtained writs from the Federal Court to enforce payment of the amounts allegedly due from Piccott. As the Minister did not do so, the seizure of Piccott's goods was improper and should be set aside. The Minis­ter appealed.

The Federal Court of Appeal allowed the appeal and set aside the decision of the court below. The court's reasons dealt with the issues arising under the Income Tax Act. In a decision reported at [2004] N.R. Uned. 170, the court allowed the Minister's appeal dealing with the same issues as they arose under the Excise Tax Act.

Courts - Topic 4055

Federal Court of Canada - Jurisdiction - Trial Division - Execution of judgments - [See Income Tax - Topic 9326 ].

Income Tax - Topic 9326

Enforcement - Judgments - Certificate of Minister - General - Pursuant to s. 223 of the Income Tax Act (ITA), the Minister issued a certificate certifying an amount owed by Piccott - The certificate was reg­istered in the Federal Court, which made it enforceable as a judgment of that court - A notice of judgment and the certi­ficate of judgment were filed with the sheriff in Newfoundland and Labrador with instruc­tions to seize Piccott's property - The sheriff seized property from Piccott - A motions judge held that since the certifi­cate was enforceable as a judgment of the court, enforcement proceedings had to be conducted in accordance with the Federal Court Act and the Federal Court Rules, which required that a writ of execution be issued - Since no writ was issued, the seizure was improper - The motions judge also held that a certified copy of a certifi­cate was not a "memorial" as defined in s. 223(5) of the ITA and it could not author­ize seizure of a tax debtor's goods - The motions judge noted that a memorial re­quired that the document be issued by the Federal Court - The Minister appealed - The Federal Court of Appeal allowed the appeal - Section 223 of the ITA provided a specific method of enforcement of certi­ficates and the Minister could rely on those provisions even if they differed from the enforcement provisions of the Federal Court Act - The original certificate of judgment was a document issued by the court which satisfied the requirements of s. 223(5) - Accordingly, the notice of judg­ment and certificate of judgment were properly filed with the sheriff and the execu­tion was regular and proper.

Cases Noticed:

Marcel Grande Cirque Inc. v. Minister of National Revenue (1995), 107 F.T.R. 18 (T.D.), refd to. [para. 8].

Olympia Interiors Ltd. et al., [1998] F.T.R. Uned. 530; 98 D.T.C. 6306 (T.D.), refd to. [para. 8].

Ross v. Canada Customs and Revenue Agency (2002), 218 F.T.R. 276; 2002 D.T.C. 6884 (T.D.), affd. (2002), 301 N.R. 23 (F.C.A.), refd to. [para. 8].

Hancor Inc. et al. v. 118353 Canada Ltée et al., [1996] 1 F.C. 725; 191 N.R. 360 (F.C.A.), refd to. [para. 30].

TransGas Ltd. v. Mid-Plains Contractors Ltd. et al., [1994] 3 S.C.R. 753; 187 N.R. 317; 137 Sask. R. 241; 107 W.A.C. 241; [1995] 1 W.W.R. 1; 120 D.L.R.(4th) 715; 25 C.R.R.(2d) 179; 18 C.L.R.(2d) 157, affing. 105 Sask.R. 211; 32 W.A.C. 211; 101 D.L.R.(4th) 238 (C.A.), refd to. [para. 32].

Statutes Noticed:

Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1, sect. 223(2), sect. 223(3) [para. 7]; sect. 223(5) [para. 11].

Counsel:

Gregory MacIntosh, for the appellant;

Olga R. McWilliam Benson, for the re­spondent.

Solicitors of Record:

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the appellant;

Barry Heywood, Mount Pearl, Newfound­land and Labrador, for the respondent.

This appeal was heard on June 22, 2004, at St. John's, Newfoundland and Labrador, be­fore Desjardins, Nadon and Pelletier, JJ.A., of the Federal Court of Appeal. The fol­lowing judgment of the Court of Appeal was delivered by Pelletier, J.A., on Septem­ber 14, 2004.