Date: 20011129
Docket: ITA-8787-93
Toronto, Ontario, Thursday, the 29th day of November, 2001
PRESENT: Peter A. K. Giles, Esquire
Associate Senior Prothonotary
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 of the Income Tax Act, Canada Pension Plan, Unemployment Insurance Act, against:
GEORGE F. BESSELT
6916 5 Street North West,
of Calgary,
in the Province of Alberta.
BETWEEN:
HER MAJESTY THE QUEEN
Applicant
- and -
GEORGE F. BESSELT
Respondent
GILES A.S.P.
[1] The motion before me seeks leave to issue a (new) Writ of Execution. Presumably a Writ of Seizure and Sale in form 425 A. Once leave has been given the creditor is entitled to requisition a Writ from the Registry. The form of Writ is such as to necessitate that the amount of the debt, the rate of interest and the dates from which interest is to run are to be shown. [The amount of costs, if any, and the rate of interest on costs and the dates from which such interest runs is also to be shown where appropriate].
[2] I note that Rule 425 permits enforcement of an Order by, inter alia, a Writ of Seizure and Sale. The "Order" is the certificate filed. Leave in the ordinary way would permit the Registry to issue a Writ to collect the amounts shown in the certificate plus interest from the date shown in the certificate.
[3] If it is desired to obtain a Writ for a different amount than the amount shown in the certificate (which has the effect of an Order or Judgment of this Court) affidavit evidence to justify the deferring amount should be filed and the Order for leave will indicate any change from the amount shown in the certificate. I question whether any increase in amount shown in the certificate could be done ex parte.
[4] In this case a certificate indicates a sum owing to Her Majesty by virtue of an assessment by the Minister of National Revenue. If the creditor has assigned Her rights by statute or otherwise reference should be made to that assignment in the supporting affidavit.
[5] I note that the certificate herein was that of an official of the Department of National Revenue whereas the supporting affidavit to this motion states the debtor is indebted to Canada Customs and Revenue Agency. If that is in fact the case, some indication of the transfer in the supporting affidavit is required. If, however, the agency is merely a publican the debt remains owing to Her Majesty who will be shown in the Writ and the creditor is not the agency.
[6] As previously indicated, this matter should be clarified. It is useful to have the indication that the debt is for income tax. If it were for employment insurance repayments evidence would be required to show that the six year limitation period had not expired or was not applicable, so that the duration of the Writ could be appropriately limited.
[7] It has been a customary requirement in Toronto to be advised whether the debtor is aware of the existence of a certificate in the hope that third parties attempting to close real estate transactions will not be unnecessarily surprised.
[8] In this particular case the request for an Order relieving the applicant from complying with the record formal requirements of Rule 364 is denied. The motion is therefore dismissed with leave to reapply ex parte with a motion record containing representations explaining the circumstances.
ORDER
1. Motion dismissed.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
November 29, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: ITA-8787-93
STYLE OF CAUSE: HER MAJESTY THE QUEEN
Applicant
- and -
GEORGE F. BESSELT
Respondent
CONSIDERED AT TORONTO, ONTARIO PURSUANT TO RULE 369
AMENDED REASONS FOR
ORDER AND ORDER BY: GILES A.S.P.
DATED: THURSDAY, NOVEMBER 29, 2001
WRITTEN SUBMISSIONS BY: Mr. Michael J. Lema
For the Applicant
SOLICITORS OF RECORD: Morris Rosenberg
Deputy Attorney General of Canada
For the Applicant
FEDERAL COURT OF CANADA
Date: 20011129
Docket: ITA-8787-93
Between:
HER MAJESTY THE QUEEN
Applicant
- and -
GEORGE F. BESSELT
Respondent
AMENDED REASONS FOR
ORDER AND ORDER