Halifax, Nova Scotia, October 16, 2006
PRESENT: The Honourable Mr. Justice O'Keefe
IN THE MATTER OF the Income Tax Act
AND IN THE MATTER OF an assessment or assessments by the
Minister of National Revenue under the Income Tax Act, against:
DANIEL BABLITZ
(sometimes carrying on business as D&D Jewellers)
AND IN THE MATTER OF the Civil Enforcement Act,
S.A. 1994, c. C-10.5;
AND IN THE MATTER OF a seizure made the 21st day
of November, 2003.
BETWEEN:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
AS REPRESENTED BY THE MINISTER OF NATIONAL REVENUE
and
(sometimes carrying on business as D&D Jewellers)
REASONS FOR ORDER AND ORDER
O’KEEFE J.
[1] This is a motion by the applicant for:
1. An order that the applicant shall be at liberty to instruct Consolidated Civil Enforcement Inc. to sell the property of the respondent that was seized on August 24, 2004 as listed and described in the Notice of Seizure of Personal Property and Addendum to the Notice of Seizure of Personal Property (the notices) attached as Exhibit “P” to the Affidavit of Don Bagno and to distribute the sale proceeds according to Part 5 and Part 11 of the Alberta Civil Enforcement Act, S.A. 1994, c. C-10.5 (the Act); and
2. An order for costs as set out in subsection 99(3) of the Act.
[2] The applicant has caused assessments under the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), in the amounts of $933.59 and $8,992.32 to be raised against the applicant.
[3] The applicant subsequently filed a certificate with this Court pursuant to section 223 of the Income Tax Act and a writ was issued against the goods and lands of the respondent on October 22, 2002.
[4] On November 17, 2003, the applicant obtained a warrant pursuant to the Act and a civil enforcement agent seized the chattels in question on August 12, 2004.
[5] On August 23, 2004, the respondent filed a notice of objection to the seizure which stated that the seized items were either owned or partly owned by his common-law wife.
[6] The respondent did not file any affidavit with respect to the ownership of the items nor did his common-law wife file a claim pursuant to Rule 457 of the Alberta Rules of Court, Alta. Reg. 390/1968, but she did send a letter stating her interest in the seized chattels. The letter is attached to the respondent’s notice of objection and is dated August 19, 2004.
[7] According to the notice of objection, the business, D&D Jewellers, was 49% owned by the respondent’s son, who was killed in a robbery at the store in December 1995. The respondent was hospitalized for four months and he stated that in the next two years, he spent more time in the hospital than at his store as a result of having received 12 stab wounds during the robbery. His common-law wife’s income kept the store operating. The respondent’s common-law wife received the respondent’s deceased son’s share of the business.
[8] The respondent stated that he can afford to retain counsel.
[9] There is no doubt that the applicant is entitled to sell the chattels if they are owned by the respondent. The problem, however, is that there is evidence on the record before me that others may have an interest in or own the chattels. The interests of justice would not be met if an order issued to sell the chattels without the other persons’ interests being assessed.
[10] Subsection 43(1) of the Civil Enforcement Act states:
43(1) For the purposes of enforcing a writ, all exigible personal property of an enforcement debtor is liable to seizure.
[11] It must therefore be ascertained whether the property that was seized and for which permission is now sought to sell is the debtor’s personal property. Based upon the record before me, I cannot tell whether the respondent is the owner or partial owner of the chattels in question.
[12] Section 5 of the Civil Enforcement Act reads in part as follows:
5(1) The Court may, on application by an interested party or an agency, give directions in respect of or determine any matter or issue that arises out of any civil enforcement proceedings.
(2) On considering an application under this Act, the Court may do any one or more of the following:
. . .
(h) make an order granted under this Act subject to any terms or conditions that the Court considers appropriate in the circumstances;
(i) except where this Act provides otherwise, make any other order or direction in respect of matters coming under this Act that the Court considers appropriate in the circumstances;
[13] I am of the view that this matter ought to be adjourned so as to allow the respondent the opportunity to file an affidavit with respect to the ownership of the chattels in question.
[14] The respondent shall have two weeks from the date of this order to file any such affidavit evidence and the time for filing any such material is hereby abridged. The applicant shall be at liberty to set this matter down for completion of the hearing at any time after three weeks from the date of this order.
ORDER
[15] IT IS ORDERED that:
1. The motion is adjourned sine die.
2. The respondent shall have two weeks from the date of this order to file any affidavit
material with respect to the ownership of the chattels in issue.
3. The applicant shall be at liberty to set the matter down for completion of the hearing,
if necessary, at any time after three weeks from the date of this order.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: ITA-11095-02
STYLE OF CAUSE: HER MAJESTY THE QUEEN As Represented
By THE MINISTER OF NATIONAL REVENUE
- and -
DANIEL BABLITZ
(sometimes carrying on business as
D&D Jewellers)
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: July 18, 2006
APPEARANCES:
|
George T. Christidis
|
|
|
Daniel Bablitz On His Own Behalf
|
SOLICITORS OF RECORD:
|
John H. Sims, Q.C. Deputy Attorney General
|
|
|
Daniel Bablitz Edmonton, Alberta |