Date: 20030218
Docket: T-2119-02
Ottawa, Ontario, February 18, 2003
Before: Pinard J.
IN RE the Income Tax Act
AND IN RE one or more assessments
by the Minister of National Revenue pursuant to
one or more of the following statutes: the Income Tax Act,
the Canada Pension Plan and the Employment Insurance Act
AGAINST:
ROGER BLOUIN
3035 rue St-Samuel
Beauport, Quebec G1C 3T3
Respondent
(Judgment debtor)
Notice of motion by the judgment debtor Roger Blouin for an order to:
Revise and quash the order made by Tremblay-Lamer J. on December 19, 2002, pursuant to s. 225.2(2) of the Income Tax Act;
Cancel certificates Nos. ITA-13319-02 and ITA-111320-02 issued on December 19, 2002, under ss. 223 et seq. of the Income Tax Act and the writs of execution accompanying them;
Invalidate and quash the seizures made from the bank accounts of Rose-Hélène Blouin, Anne-Marie Blouin and Madeleine Tradif Blouin, seizures which were made following formal requests for payment issued to the financial institutions holding the bank accounts of the said three persons.
[Rules 4, 358 et seq. and 448 of the Federal Court Rules (1998)
and s. 225.2(8) of the Income Tax Act
and arts. 596 et seq. of the Quebec Code of Civil Procedure]
ORDER
The motion is dismissed without costs.
"Yvon Pinard"
Judge
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20030218
Docket: T-2119-02
Neutral citation: 2003 FCT 178
IN RE the Income Tax Act
AND IN RE one or more assessments
by the Minister of National Revenue pursuant to
one or more of the following statutes: the Income Tax Act,
the Canada Pension Plan and the Employment Insurance Act
AGAINST:
ROGER BLOUIN
3035 rue St-Samuel
Beauport, Quebec G1C 3T3
Respondent
(Judgment debtor)
REASONS FOR ORDER
PINARD J.
[1] By his motion based on s. 225.2(8) of the Income Tax Act the applicant Roger Blouin is asking the Court to review the jeopardized recovery order made by Tremblay-Lamer J. on December 19, 2002, pursuant to s. 225.2(2) of the said Act.
[2] In Her Majesty the Queen v. Golbeck (September 20, 1990), A-613-90 and A-614-90, [1990] 2 C.T.C. 438, the Federal Court of Appeal stated the requirement for obtaining such a jeopardized recovery order as follows:
That question was not whether such an application by the Minister should only be considered after having been served on the taxpayer so as to give the taxpayer an opportunity to make representations. The question was whether, on the basis of the material put before the Court, it appeared that the Minister had reasonable grounds for believing that the taxpayer would waste, liquidate or otherwise transfer his assets so as to become less able to pay the amount assessed and thereby jeopardizing the Minister's debt.
[3] Later, in Canada (Minister of National Revenue) v. Services M.L. Marengère Inc. (November 29, 1999), T-460-99, [2000] 1 C.T.C. 229, this Court (per Lemieux J.) relying on earlier precedent noted inter alia the following with regard specifically to the question of the burden of proof in such an application for review:
(2) In terms of burden, an applicant under subsection 225.2(8) has the initial burden to show that there are reasonable grounds to doubt that the test required by subsection 225.2(2) has been met, that is, the collection of all or any part of the amounts assessed would be jeopardized by the delay in the collection. However, the ultimate burden is on the Crown to justify the jeopardy collection order granted on an ex parte basis.
(3) The evidence must show, on a balance of probability, that it is more likely than not that collection would be jeopardized by delay. The test is not whether the evidence shows beyond all reasonable doubt that the time allowed to the taxpayer would jeopardize the Minister's debt.
[4] Those are the basic rules which guide me in considering and disposing of the case at bar. After hearing counsel for the parties, reviewing the record and examining the evidence, I feel that there was sufficient evidence before Tremblay-Lamer J. to justify her in concluding that, relying on the same points, the Minister "had reasonable grounds for believing that the taxpayer would waste, liquidate or otherwise transfer his assets so as to become less able to pay the amount assessed and thereby jeopardizing the Minister's debt".
[5] Exhibit I, a document issued by a financial advisor to the applicant, filed in support of the Minister's ex parte motion record before Tremblay-Lamer J., noted that the applicant Roger Blouin was discussing ways of placing all his assets beyond the reach of his creditors. It should be noted that at the time the ex parte motion in question was filed, the Minister was not aware of the transfers of money made to the applicant's aunts, Rose-Hélène Blouin et Anne-Marie Blouin, and the applicant's mother, Madeleine Blouin. It states in the document in question that the applicant was considering the possibility, in order to protect his assets, of transferring money into the names of his aunts [TRANSLATION] "arguing that this was a loan". The document further spoke of a possible bankruptcy, the creation of a protective trust, the placing in trust of his investment portfolio and the conversion of his RRSP to a retirement plan which was not distrainable.
[6] The Minister's evidence when his ex parte motion was filed was also based on the actions of the applicant Roger Blouin relating to his assets, actions which suggested that the scenarios described in Exhibit I would be put into effect, concurrently with the sending of the relevant notices of assessment by the Canada Customs and Revenue Agency.
[7] Accordingly, based on this evidence I consider that not only has the applicant not discharged his initial burden of showing that there are reasonable grounds to believe that the test met in s. 225.2(2) was not met, but further the Minister has fully satisfied the ultimate burden of justifying the order at issue made by Tremblay-Lamer J. ex parte by establishing that in all probability it was more than likely that the granting of a delay would jeopardize the desired recovery.
[8] As regards the objection to the formal requests for payment made by the Minister to the financial institutions in respect of the bank accounts with the names of Anne-Marie Blouin, Rose-Hélène Blouin and Madeleine Blouin, on the ground that these formal requests are improper and unlawful, I consider that we are concerned here with a purely administrative decision by a federal agency based on s. 224(1) of the Income Tax Act, and that this particular decision cannot be challenged by an application for review made pursuant to s. 225.2(8) of that Act.
[9] For all these reasons, the motion is dismissed. However, in view of the fact that the Minister deducted from the administrative seizure the amounts of money held in the bank accounts of Rose-Hélène Blouin, Anne-Marie Blouin and Madeleine Blouin, except for the sums transferred on December 3, 2002, from the personal account of the applicant Roger Blouin, and in view of the fact that the Minister has lifted the execution made at the applicant's residence, no costs will be awarded.
"Yvon Pinard"
Judge
OTTAWA, ONTARIO
February 18, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: T-2119-02
STYLE OF CAUSE: INCOME TAX ACT v. ROGER BLOUIN
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: February 13, 2003
REASONS FOR ORDER BY: Pinard J.
DATED: February 18, 2003
APPEARANCES:
Sophie Matte FOR HER MAJESTY THE QUEEN
Daniel Bourgeois FOR THE JUDGMENT DEBTOR
SOLICITORS OF RECORD:
Morris Rosenberg FOR HER MAJESTY THE QUEEN
Deputy Attorney General of Canada
Ottawa, Ontario
Pothier, Delisle FOR THE JUDGMENT DEBTOR
Sainte-Foy, Quebec