Walsh,
J:—This
action
which
seeks
a
declaratory
judgment
from
the
Court
interpreting
the
collection
proceedings
which
can
be
adopted
by
the
Minister
of
National
Revenue
to
enforce
payment
of
taxes
allegedly
due
following
a
notice
of
reassessment
when
the
said
reassessment
has
been
objected
to
came
to
trial
on
the
basis
of
an
agreed
statement
of
facts
with
neither
party
calling
any
witnesses.
The
agreed
statement
of
facts
sets
out
inter
alia
that
the
two
individual
plaintiffs
are
sole
shareholders
of
the
plaintiff
corporation
which
carries
on
the
business
of
commercial
and
industrial
building
and
repair
in
the
Windsor
area
in
Ontario.
All
appellants
received
notices
of
assessment
for
the
taxation
years
1967
through
1971
and
paid
tax
pursuant
to
the
assessments
made
at
that
time.
On
January
16,
1976
plaintiffs
Sam
and
Vince
Pupatello
received
notices
of
reassessment
and
on
January
20,
1976
the
plaintiff
corporation
also
received
a
notice
of
reassessment.
An
examination
of
these
discloses
that
this
appears
to
have
arisen
from
undeclared
profits
on
sales
of
real
estate
in
each
of
the
years
in
question
and
that
a
penalty
was
also
levied
in
each
year
under
the
provisions
of
subsection
163(2)
of
the
Income
Tax
Act
as
well
as
a
similar
penalty
under
section
17
of
the
Income
Tax
Act
of
Ontario
based
on
wilful
omissions
in
the
returns.
In
any
event
no
issue
was
raised
arising
from
the
application
of
subsections
152(4)
and
(5)
of
the
Act
as
a
result
of
the
reassessments
having
been
made
more
than
four
years
after
the
original
assessments
if
in
fact
this
was
the
case,
which
the
record
does
not
disclose.
Following
the
sending
of
the
notices
of
reassessment
the
agreed
statement
of
facts
discloses
that
plaintiffs
were
sent
remittance
forms
in
February,
March,
May,
June
and
July
and
in
reply
to
the
earlier
of
these
forms
the
solicitors
for
plaintiffs
sent
letters
advising
defendant
they
did
not
consider
any
taxes
owing
as
a
result
of
the
mailing
of
the
notices
of
reassessment.
On
April
19,
1976
formal
notices
of
objection
to
the
reassessments
were
filed.
On
September
16,
1976
the
plaintiff
corporation
received
a
demand
on
third
parties
from
defendant
requiring
it
to
pay
each
month
50%
of
all
moneys
for
which
it
was
about
to
become
liable
to
each
of
the
other
plaintiffs.
On
September
28,
1976
the
Bank
of
Montreal
received
a
demand
on
third
parties
requiring
it
to
pay
to
the
Receiver
General
of
Canada
$3,150
from
all
amounts
due
or
about
to
become
owing
to
the
plaintiff
corporation.
As
a
result
of
these
notices,
on
October
4,
1976
plaintiffs
paid
to
the
Receiver
General
of
Canada
$32,904.40
on
account
of
Sam
Pupatello
and
$26,451.87
on
account
of
Vince
Pupatello,
being
all
the
moneys
plus
interest
claimed
in
the
notices
of
reassessment
addressed
to
them,
and
on
October
4,
1976
the
Bank
of
Montreal
remitted
$3,150
to
the
Receiver
General
of
Canada
on
behalf
of
the
plaintiff
corporation
pursuant
to
the
demand.
Plaintiffs
in
their
amended
statement
of
claim
contend
that
the
section
of
the
Act
that
enables
the
defendant
to
issue
such
a
demand
has
as
a
fundamental
pre-condition
that
a
person
first
be
liable
to
make
payment
under
the
Act
before
the
garnishment
may
commence,
that
these
demands
were
sent
to
collect
money
set
out
in
the
notices
of
reassessment,
and
that
a
person
is
not
liable
to
make
the
payment
following
the
mailing
of
a
notice
of
reassessment,
but
only
following
the
mailing
of
a
notice
of
assessment.
It
is
further
submitted
that
there
is
a
fundamental
difference
between
a
notice
of
assessment
and
a
notice
of
reassessment
and
that
the
Act
provides
no
collection
procedures
or
liability
for
payment
following
the
mailing
of
a
notice
of
reassessment.
They
therefore
ask
for
a
declaration
that
no
moneys
were
payable
to
the
Receiver
General
of
Canada
by
plaintiffs
as
a
result
of
the
mailing
of
the
notices
of
reassessment,
that
defendant
be
ordered
to
repay
to
plaintiffs
all
said
moneys
totalling
$62,506.27
plus
interest,
and
that
an
injunction
issue
restraining
defendant
from
exercising
any
and
all
of
the
collection
provisions
of
the
Income
Tax
Act
against
plaintiffs
with
respect
to
the
moneys
claimed
in
the
said
notices
of
reassessment.
Defendant
in
its
statement
of
defence
invokes
subsections
152(1),
(2),
(3)
and
(4),
158(1),
248(1)
and
sections
222
and
224
of
the
Income
Tax
Act
which
sections
read
as
follows:
152.
(1)
The
Minister
shall,
with
all
due
despatch,
examine
each
return
of
income
and
assess
the
tax
for
the
taxation
year
and
the
interest
and
penalties,
if
any,
payable.
(2)
After
examination
of
a
return,
the
Minister
shall
send
a
notice
of
assessment
to
the
person
by
whom
the
return
was
filed.
(3)
Liability
for
the
tax
under
this
Part
is
not
affected
by
an
incorrect
or
incomplete
assessment
or
by
the
fact
that
no
assessment
has
been
made.
(4)
The
Minister
may
at
any
time
assess
tax,
interest
or
penalties
under
this
Part
or
notify
in
writing
any
person
by
whom
a
return
of
income
for
a
taxation
year
has
been
filed
that
no
tax
is
payable
for
the
taxation
year,
and
may
(a)
at
any
time,
if
the
taxpayer
or
person
filing
the
return
(i)
has
made
any
misrepresentation
that
is
attributable
to
neglect,
carelessness
or
wilful
default
or
has
committed
any
fraud
in
filing
the
return
or
in
supplying
any
information
under
this
Act,
or
(ii)
has
filed
with
the
Minister
a
waiver
in
prescribed
form
within
4
years
from
the
day
of
mailing
of
a
notice
of
an
original
assessment
or
of
a
notification
that
no
tax
is
payable
for
a
taxation
year,
and
(b)
within
4
years
from
the
day
referred
to
in
subparagraph
(a)(ii),
in
any
other
case,
reassess
or
make
additional
assessments,
or
assess
tax,
interest
or
penalties
under
this
Part,
as
the
circumstances
require.
158.
(1)
The
taxpayer
shall,
within
30
days
from
the
day
of
mailing
of
the
notice
of
assessment,
pay
to
the
Receiver
General
of
Canada
any
part
of
the
assessed
tax,
interest
and
penalties
then
remaining
unpaid,
whether
or
not
an
objection
to
or
appeal
from
the
assessment
is
outstanding.
248.
(1)
In
this
Act,
“assessment”
includes
a
reassessment;
222.
All
taxes,
interest,
penalties,
costs
and
other
amounts
payable
under
this
Act
are
debts
due
to
Her
Majesty
and
recoverable
as
such
in
the
Federal
Court
of
Canada
or
any
other
court
of
competent
jurisdiction
or
in
any
other
manner
provided
by
this
Act.
224.
(1)
When
the
Minister
has
knowledge
or
suspects
that
a
person
is
or
is
about
to
become
indebted
or
liable
to
make
any
payment
to
a
person
liable
to
make
a
payment
under
this
Act,
he
may,
by
registered
letter
or
by
a
letter
served.
personally,
require
him
to
pay
the
moneys
otherwise
payable
to
that
person
in
whole
or
in
part
to
the
Receiver
General
of
Canada
on
account
of
the
liability
under
this
Act.
(2)
The
receipt
of
the
Minister
for
moneys
paid
as
required
under
this
section
is
a
good
and
sufficient
discharge
of
the
original
liability
to
the
extent
of
the
payment.
(3)
Where
the
Minister
has,
under
this
section,
required
an
employer
to
pay
to
the
Receiver
General
of
Canada
on
account
of
an
employee’s
liability
under
this
Act
moneys
otherwise
payable
by
the
employer
to
the
employee
as
remuneration,
the
requirement
is
applicable
to
all
future
payments
by
the
employer
to
the
employee
in
respect
of
remuneration
until
the
liability
under
this
Act
is
satisfied
and
operates
to
require
payments
to
the
Receiver
General
out
of
each
payment
of
remuneration
of
such
amount
as
may
be
stipulated
by
the
Minister
in
the
registered
letter.
(4)
Every
person
who
has
discharged
any
liability
to
a
person
liable
to
make
a
payment
under
this
Act
without
complying
with
a
requirement
under
this
section
is
liable
to
pay
to
Her
Majesty
an
amount
equal
to
the
liability
discharged
or
the
amount
which
he
was
required
under
this
section
to
pay
to
the
Receiver
General
of
Canada,
whichever
is
the
lesser.
An
issue
which
might
well
have
been
raised
but
was
not
is
whether
the
Minister
of
National
Revenue
is
properly
named
as
defendant
rather
than
Her
Majesty
the
Queen.
In
the
case
of
Mastino
Developments
Limited
v
The
Queen,
[1972]
CTC
249;
72
DTC
6211,
dealing
with
a
proposed
appeal
by
the
Minister
of
National
Revenue
from
a
decision
of
the
Tax
Review
Board
directions
were
sought
in
the
Court
as
to
the
proper
party
in
proceedings
instituted
in
appeals
from
assessments
by
the
Minister
of
National
Revenue
and
appeals
from
decisions
of
the
Tax
Review
Board.
Associate
Chief
Justice
Camil
Noël
found
that
they
should
be
brought
by
or
against
Her
Majesty
the
Queen
as
the
case
might
be.
In
another
similar
case
of
Joseph
M
Weintraub
v
Her
Majesty
the
Queen,
[1972]
CTC
302;
72
DTC
6262,
he
made
a
similar
finding
in
a
case
dealing
with
plaintiff's
appeal
from
an
income
tax
assessment.
The
present
proceedings
do
not
deal
with
appeals
from
the
assessments
but
seek
a
declaratory
judgment
as
to
the
collection
procedure
adopted
by
the
Minister
following
a
reassessment.
However,
in
the
Weintraub
case
Associate
Chief
Justice
Noël
stated
at
page
304
[6263]
in
reference
to
one
of
the
arguments
raised
by
the
Attorney
General
for
having
the
Minister
of
National
Revenue
named
as
the
defendant
rather
than
Her
Majesty
the
Queen:
The
provisions
of
the
Income
Tax
Act,
according
to
the
Attorney
General
draw
a
distinction
between
the
duty
to
assess,
which
is
imposed
upon
the
Minister
of
National
Revenue,
and
the
taxes
payable
which
by
section
222
of
the
Act,
are
payable
to
Her
Majesty
the
Queen
with
the
consequence
that
Her
Majesty
is
not
an
interested
party
when
the
Court
is
exercising
its
jurisdiction
to
review
by
way
of
a
trial
assessments
made
by
the
Minister.
At
page
305
[6264]
he
refers
to
a
statement
he
made
in
the
Mastino
case
to
the
effect
that
there
is
“an
indication
of
a
trend
in
Canada
towards
eliminating
nominated
parties
and
towards
leaving
Her
Majesty
as
the
party
where
She
is
the
person
whose
legal
rights
or
obligations
are
involved”.
It
would
appear
in
the
present
case
that
where
the
merits
of
the
appeal
are
not
involved
but
merely
the
collection
procedures
adopted
by
the
Minister
following
notices
of
reassessment
and
where
plaintiffs
seek
to
collect
back
moneys
already
paid
to
the
Receiver
General
of
Canada,
Her
Majesty
the
Queen
is
very
directly
involved
and
should
have
been
named
as
a
defendant
rather
than
the
Minister
of
National
Revenue.
In
any
event
it
can
be
stated
that
plaintiffs
can
have
no
right
to
seek
an
injunction
against
the
defendant
in
the
present
proceedings.
Plaintiffs’
contentions
are
based
on
the
wording
of
subsection
158(1)
(supra)
which
requires
payment
within
30
days
from
the
day
of
the
mailing
of
the
‘‘notice
of
assessment”
and
goes
on
to
state
that
this
applies
whether
or
not
an
objection
to
or
an
appeal
from
the
assessment
is
outstanding.
Plaintiffs
argue
that
this
section
does
not
use
the
word
‘‘reassessment”
and,
since
taxation
statutes
must
be
interpreted
Strictly,
the
requirement
of
payment
within
30
days
notwithstanding
a
notice
of
objection
only
applies
to
the
original
notice
of
assessment
and
not
to
the
notice
of
reassessment.
Reference
was
made
to
the
judgment
of
former
President
Thorson
in
the
case
of
Pure
Spring
Company
Limited
v
MNR,
[1946]
CTC
169;
2
DTC
844,
in
which
at
page
198
he
makes
a
distinction
between
the
assessment
and
the
notice
of
assessment
stating:
The
assessment
is
different
from
the
notice
of
assessment;
the
one
is
an
operation,
the
other
a
piece
of
paper.
Reference
was
also
made
to
the
judgment
of
Thurlow,
J,
as
he
then
was,
in
the
case
of
Lawrence
B
Scott
v
MNR,
[1960]
CTC
402;
60
DTC
1273,
in
which
the
question
raised
was
whether
reassessment
was
made
within
the
four-year
delay,
the
notice
of
same
having
been
mailed
(although
improperly
as
it
was
found)
to
the
solicitor
who
had
formerly
acted
for
the
taxpayer
rather
than
to
the
taxpayer
himself
exactly
four
years
after
the
mailing
of
the
notice
of
the
original
assessment.
It
was
subsequently
remailed
to
the
appellant
at
an
address
where
it
reached
him
beyond
the
four-year
delay.
In
rendering
judgment
Justice
Thurlow
referred
to
the
Pure
Spring
case.
He
then
stated
at
pages
413-14
[1279]:
“It
is
the
opinion
as
formed,
and
not
the
material
on
which
it
was
based,
that
is
one
of
the
circumstances
relevant
to
the
assessment.
The
assessment,
as
I
see
it,
is
the
summation
of
all
the
factors
representing
tax
liability,
ascertained
in
a
variety
of
ways,
and
the
fixation
of
the
total
after
all
the
necessary
computations
have
been
made.”
See
also
Provincial
Paper
Ltd
v
MNR,
[1955]
Ex
CR
33;
[1954]
CTC
367.
But
it
does
not,
in
my
opinion,
follow
from
the
foregoing
that
the
giving
of
a
notice
of
assessment
is
not
itself
part
of
the
fixation
operation
or
procedure
which
is
compendiously
referred
to
in
the
statute
as
an
“assessment”,
or
if
the
giving
of
notice
is
not
strictly
part
of
the
assessment
itself
that
the
assessment
itself
is
complete
until
the
notice
has
been
effectively
given.
This
judgment
was
however
also
referred
to
by
counsel
for
defendant
who
cited
a
passage
at
page
417
[1281]:
.
.
.
It
was
not
disputed
that
Section
46(2),*
which
requires
the
Minister
to
send
“a
notice
of
assessment
to
the
taxpayer”,
applies
as
well
to
a
re-assessment
as
to
an
original
assessment.
From
the
procedural
point
of
view
therefore
he
makes
no
distinction.
There
are
certainly
some
differences,
however,
between
a
notice
of
assessment
and
a
notice
of
reassessment
and
this
issue
has
been
considered
in
a
number
of
cases,
a
distinction
having
been
made
between
a
notice
of
reassessment
which
replaces
the
original
notice
of
assessment
rendering
the
latter
void,
and
a
notice
of
reassessment
which
merely
adds
additional
sums
to
the
original
assessment.
In
the
present
case
the
original
assessments
were
paid
and
the
notice
of
reassessment
adds
additional
amounts
including
penalties
and
is
in
effect
a
new
assessment.
The
cases
which
discuss
these
questions,
to
which
I
refer,
are
Coleman
C
Abrahams
v
MNR,
[1966]
CTC
690;
66
DTC
5451,
a
judgment
of
Jackett,
P
as
he
then
was
which
has
Subsequently
been
followed
in
many
cases
including
that
of
Mary
E
Walkem
v
MNR,
[1971]
CTC
513;
71
DTC
5288;
Her
Majesty
the
Queen
v
Oneil
Lambert,
[1974]
CTC
516;
74
DTC
6368,
and
the
appeal
from
that
judgment
which
sustained
it
although
expressing
doubt
as
to
the
Trial
Court
finding
that
the
new
assessments
were
not
reassessments
but
were
further
assessments
([1976]
CTC
611;
76
DTC
6373).
This
latter
case
concerned
the
taxpayer’s
attempt
to
have
a
section
223
certificate
nullified
as
the
result
of
the
reassessment.
At
pages
614-15
[6375-6]
of
the
appeal
decision
the
learned
Chief
Justice
states:
As
appears
from
our
review
of
the
provisions
of
the
Act,
there
is
a
difference
between
(a)
a
liability
under
the
Act
to
pay
tax,
and
(b)
an
“assessment”
(including
a
reassessment
or
a
further
assessment),
which
is
a
determination
or
calculation
of
the
tax
liability.
It
follows
that
a
reassessment
of
tax
does
not
nullify
the
liability
to
pay
the
tax
covered
by
the
previous
assessment
as
long
as
that
tax
is
included
in
the
amount
reassessed.
As
there
can
be
no
basis
for
the
appellant’s
contention
on
this
motion
unless
the
“amount
payable”
on
which
the
certificate
was
based
had
ceased
to
be
“payable”
and
as
the
material
before
us
does
not
show
that
it
had
ceased
to
be
payable,
in
our
view,
the
appeal
had
to
be
dismissed.
I
think
it
is
clear
from
the
definition
of
“assessment”
in
subsection
248(1)
of
the
Act
(supra)
that
although
it
is
well
established
that
an
assessment
is
not
the
same
thing
as
a
notice
of
assessment,
and
that
a
reassessment
does
not
always
replace
an
original
assessment,
the
requirement
of
subsection
158(1)
that
the
taxpayer
shall
make
payment
within
30
days
of
the
mailing
of
the
notice
of
assessment
must
also
be
applicable
to
the
notice
of
reassessment.
Certainly
even
plaintiffs
do
not
contend
that
the
requirement
of
subsection
152(2)
that
the
Minister
shall
send
a
notice
of
assessment
to
the
person
by
whom
the
return
was
filed
does
not
similarly
apply
to
the
sending
of
a
notice
of
reassessment,
and
it
would
be
absurd
to
conclude
that
the
Act
makes
no
provision
setting
a
time
limit
within
which
the
amount
claimed
by
a
notice
of
reassessment
must
be
paid
whether
or
not
a
notice
of
objection
has
been
made
or
an
appeal
filed.
If
such
were
the
case
a
taxpayer
could
avoid
making
payment
of
the
amount
demanded
in
the
notice
of
reassessment
indefinitely
by
simply
filing
no
notice
of
objection
or
not
appealing
and
merely
ignoring
all
notices
demanding
payment,
as
plaintiffs
did
in
this
case,
until
the
third
party
notices
were
sent.
Plaintiffs
suggested
that
this
danger
is
not
a
real
one
since
by
section
222
of
the
Act
Her
Majesty
can
recover
the
amounts
due
in
the
Federal
Court
or
any
other
court
of
competent
jurisdiction.
This
section
goes
on
to
state
“or
in
any
other
manner
provided
by
this
Act”,
however,
and
it
would
be
preposterous
to
suggest
that
Her
Majesty
should
have
to
sue
to
collect
taxes
following
a
reassessment,
in
which
proceedings
the
defence
would
presumably
be
that
the
taxes
claimed
by
the
reassessment
are
not
due,
when,
as
a
result
of
the
notice
of
objection
the
same
issue
of
tax
liability
will
be
litigated
elsewhere
in
the
normal
manner.
Plaintiffs
also
argue
that
by
section
223
of
the
Act
Her
Majesty
has
protection
by
registering
a
certificate
in
the
Court.
This
would
then
normally
be
followed
up
by
proceedings
in
garnishment
of
the
taxpayer’s
assets.
In
sending
the
third
party
notices
which
have
the
effect
of
a
garnishment
pursuant
to
section
224
of
the
Act
the
Minister
acted
as
he
is
entitled
to
do,
this
being
one
of
the
alternative
collection
procedures
available.
Plaintiffs
further
argue
that
the
Minister’s
insistence
on
payment
within
30
days
following
the
reassessment
and
the
subsequent
garnishment
proceedings
to
enforce
this
imposed
hardship
on
plaintiffs,
the
plaintiff
corporation
having
to
incur
a
debt
and
borrow
money
to
make
the
payment,
and
this
despite
the
fact
that
the
reassessment
had
been
objected
to
and
would
in
due
course
be
appealed.
This
argument,
based
on
the
inconvenience
caused
the
plaintiffs
as
taxpayers
cannot
of
course
be
sustained.
The
same
would
apply
to
the
enforcement
of
the
initial
assessment
within
30
days
for
which
the
Act
provides
in
express
term,
and
no
significant
difference
can
be
found
between
being
required
to
pay
sums
due
under
an
initial
assessment
which
may
be
under
appeal
and
being
required
to
pay
additional
sums
due
by
a
reassessment
which
may
also
be
under
appeal.
Plaintiffs
also
relied
on
the
case
of
Cyrus
J
Moulton
Ltd
v
Her
Majesty
the
Queen,
[1975]
CTC
631;
75
DTC
5440,
in
the
Federal
Court
of
Appeal,
in
which
Thurlow,
J
stated
at
page
635
[5442]:
With
respect,
the
de
facto
existence
of
the
indebtedness
of
Micucci
to
the
Crown
for
monies
payable
under
the
statute
at
the
time
of
the
giving
of
a
notice
under
subsection
224(2)
appears
to
me
to
be,
on
the
wording
of
the
section,
a
fundamental
fact
upon
which
any
liability
of
the
appellant
under
section
224
depends
and
I
know
of
no
reason
or
authority
for
the
proposition
that
the
defendant
is
not
entitled
to
put
the
existence
of
such
a
fact
In
issue.
The
issue
raised
however
was
whether
summary
judgment
could
be
rendered
on
the
Crown’s
application
for
judgment
against
the
garnishee
appellant
pursuant
to
Federal
Court
Rule
341
without
waiting
for
the
determination
of
any
other
question
between
the
parties.
The
garnishee
had
contended
that
any
payments
which
it
had
made
following
the
garnishment
to
the
taxpayer
were
in
trust
as
a
result
of
the
existence
of
a
mechanics’
lien
in
favour
of
the
taxpayer’s
workmen.
The
facts
were
evidently
substantially
different
from
the
present
case,
as
the
plaintiff
company
did
not
dispute
it
had
sums
payable
to
plaintiffs
nor
did
the
bank
that
it
had
sums
payable
to
plaintiff
company,
the
issue
being
whether
the
three
plaintiffs
are
liable
for
the
taxes
claimed
in
the
notice
of
reassessment,
which
is
not
in
my
view
an
issue
which
is
to
be
raised
or
decided
in
proceedings
arising
out
of
third
party
notices
sent
by
virtue
of
section
224
of
the
Act.
One
final
case
of
interest
is
that
of
Her
Majesty
the
Queen
v
Margaret
Catherine
Williams,
[1975]
CTC
392;
75
DTC
5258,
in
which
it
had
been
argued
that
the
registration
of
a
certificate
under
section
223
of
the
Act
followed
by
the
garnishment
of
the
taxpayer’s
lands
was
contrary
to
the
Canadian
Bill
of
Rights.
In
this
case
Kerr,
J
in
finding
that
this
argument
could
not
be
sustained
referred
to
a
decision
of
Addy,
J
in
the
case
of
Oneil
Lambert
v
Her
Majesty
the
Queen,
[1975]
CTC
120;
75
DTC
5065,
in
which
he
stated
at
pages
122,
126
[5066,
5069]:
The
plaintiff
argues
that
section
223
of
the
Income
Tax
Act
is
ultra
vires
because
it
violates
the
principle
of
audi
alteram
partem
or,
alternatively,
that
it
is
null,
void
and
of
no
effect
as
being
contrary
to
paragraph
2(e)
of
the
Canadian
Bill
of
Rights
on
the
grounds
that
it
purports
to
give
to
the
Minister
of
National
Revenue,
without
the
taxpayer
being
heard
or
notified,
the
right
to
issue
a
certificate
which
purports
to
establish
the
amount
owed
by
the
taxpayer
and
of
subsequently
registering
the
certificate
in
the
Federal
Court,
following
which
the
said
certificate
is
purported
to
have
the
same
force
and
effect
as
a
judgment.
.
.
.
In
the
case
of
the
Income
Tax
Act
should
the
assets
of
a
taxpayer
be
seized
and
it
should
be
established
at
a
later
date
that
there
was
in
fact
no
liability
for
taxes,
then
obviously
he
would
be
entitled
to
restitution.
The
principle
of
audi
alteram
partem
applies
to
the
question
of
final
determination
of
liability
which
is
a
completely
different
question
from
the
temporary
deprivation
of
assets
or
even
from
the
permanent
loss
of
assets,
providing
there
exists
a
right
of
restitution
of
the
assets
or
of
compensation
for
their
loss.
The
public
policy
behind
the
power
in
many
taxing
statutes
to
declare
an
amount
payable
before
final
liability
for
the
amount
has
been
determined
and
to
take
effective
steps
of
securing
such
payment
by
means
of
seizure
of
assets
and
of
sale
of
same
if
necessary,
is
of
course
founded
on
the
principle
that
the
tax
collector
must
be
furnished
some
means
of
preventing
tax
avoidance
by
dissipation
of
assets
or
by
the
taxpayer
removing
them
from
the
jurisdiction.
Where
the
fundamental
right
of
the
taxpayer
to
have
his
liability
for
taxes
ultimately
determined
on
the
merits
is
preserved,
such
as
in
the
Income
Tax
Act,
the
powers
given
the
Minister
of
National
Revenue
by
section
223
to
ensure
speedy
and
effective
tax
collection
do
not
infringe
the
principle
of
audi
alteram
partem
or
the
Canadian
Bill
of
Flights.
The
section
must,
of
course,
be
read
with
the
other
provisions
of
the
Act
to
which
I
have
referred.
For
all
the
above
reasons
plaintiffs’
action
is
dismissed
with
costs.
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