Southin,
J.:
—On
December
17,
1986,
several
deputy
sheriffs
of
British
Columbia
attended
at
7914
184th
Street
in
Surrey,
the
home
of
the
petitioners,
and
seized
pursuant
to
writs
of
Fi.
Fa.
issued
out
of
the
Federal
Court
on
December
16,
all
the
petitioners’
personal
property
within
the
house
and
a
1979
Cadillac,
1981
Mercedes
and
a
motor
home.
The
underlying
issue
before
me
on
this
petition
was
whether
the
seizure
was
lawfully
made
pursuant
to
subsection
225.2(1)
of
the
Income
Tax
Act,
S.C.
1970-71-72
c.
63
as
amended:
(1)
Notwithstanding
section
225.1,
where
it
may
reasonably
be
considered
that
collection
of
an
amount
assessed
in
respect
of
a
taxpayer
would
be
jeopardized
by
a
delay
in
the
collection
thereof,
and
the
Minister
has,
by
notice
served
personally
or
by
registered
letter
addressed
to
the
taxpayer
at
his
latest
known
address,
so
advised
the
taxpayer
and
directed
the
taxpayer
to
pay
forthwith
the
amount
assessed
or
any
part
thereof,
the
Minister
may
forthwith
take
any
of
the
actions
described
in
paragraphs
225.1(1)(a)
to
(g)
with
respect
to
that
amount
or
that
part
thereof.
Having
heard
what
the
Minister
did,
I
was
of
the
opinion
that
the
act
of
seizure
was
not
authorized
by
the
section.
I
so
informed
counsel,
saying
I
would
deliver
written
reasons.
These
are
my
reasons.
When
in
these
reasons
I
refer
to
"the
Minister"
I
am
referring
to
officers
of
the
Department
of
National
Revenue
who
were
acting
on
his
behalf.
No
objection
was
taken
by
counsel
for
the
respondents
to
the
jurisdiction
of
this
Court
to
determine
whether
an
act
purportedly
done
under
the
Income
Tax
Act
is
authorized
by
it.
What
happened
as
disclosed
in
the
petition
and
affidavits
was
this:
1.
On
December
13,
1986,
the
petitioners
went
on
holiday
to
Mexico.
The
Minister
did
not
know
this.
—
See
the
affidavit
of
Richard
Leigh
at
paragraph
12.
2.
On
December
16,
the
Minister
sent
by
registered
post
to
each
petitioner
notices
of
assessment
for
certain
earlier
taxation
years
and
a
letter
dated
"Dec
161986".
The
letter
to
Mrs.
Chudina
said
this:
In
this
document
"the
amount
assessed"
means
"the
Aggregate
Amount
of
Assessment"
shown
below:
|
Date
|
|
Amount
of
|
|
of
|
of
Assessment
|
Taxation
Year
|
Assessment
|
|
December
16,
1986
|
1983
|
$73,000.00
|
|
December
16,
1986
|
1984
|
77,889.00
|
|
December
16,
1986
|
1984
|
46,116.00
|
|
Aggregate
Amount
of
Assessment
=
$197,005.00
|
|
You
are
hereby
advised
that
it
may
reasonably
be
considered
that
collection
of
the
amount
assessed
in
respect
of
you
would
be
jeopardized
by
a
delay
in
the
collection
thereof,
and
you
are
hereby
directed
to
pay
forthwith
the
amount
assessed.
This
document
has
been
executed
under
one
or
more
of
the
following
Acts:
..
.
.
The
Income
Tax
Act
of
Canada;
.
.
..
You
may
be
entitled,
under
Section
225.2
of
the
Income
Tax
Act
of
Canada,
to
apply
for
a
judicial
determination
of
the
question
whether
the
direction
contained
herein
was
justified
in
the
circumstances.
You
must
first,
upon
3
days
notice
to
the
Deputy
Attorney
General
of
Canada,
apply
to
a
judge
of
a
superior
court
having
jurisdiction
in
the
province
in
which
you
reside
or
to
a
judge
of
the
Federal
Court
of
Canada
for
an
order
fixing
a
time
and
place
for
the
determination.
Such
application
must
be
made
within
(30)
days
after
the
date
of
this
document,
or
within
such
further
time
as
the
judge,
upon
being
satisfied
that
the
application
was
made
as
soon
as
circumstances
permitted,
may
allow.
The
assessment
was
posted
at
8:25
a.m.
and
the
letter
at
8:35
a.m.
The
evidence
of
the
Minister
does
not
disclose
where
the
documents
were
posted
nor
is
there
any
evidence
that
the
Minister
expected
that
they
or
either
of
them
would
be
delivered
the
following
day.
3.
On
the
same
day,
the
Minister
issued
certificates
against
the
petitioners
pursuant
to
subsection
223(1)
of
the
Income
Tax
Act:
(1)
An
amount
payable
under
this
Act
that
has
not
been
paid
or
such
part
of
an
amount
payable
under
this
Act
as
has
not
been
paid
may
be
certified
by
the
Minister.
Also
on
that
day,
the
certificates
were
registered
in
the
Federal
Court
pursuant
to
subsection
223(2):
(2)
Judgments.
On
production
to
the
Federal
Court
of
Canada,
a
certificate
made
under
this
section
shall
be
registered
in
the
Court
and
when
registered
has
the
same
force
and
effect,
and
all
proceedings
may
be
taken
thereon,
as
if
the
certificate
were
a
judgment
obtained
in
the
said
Court
for
a
debt
of
the
amount
specified
in
the
certificate
plus
interest
to
the
day
of
payment
as
provided
for
in
this
Act.
4.
Thereafter,
but
also
on
that
day,
the
Minister
obtained
from
the
Federal
Court,
as
part
of
its
process
of
execution
on
its
judgment,
writs
of
Fi.
Fa.
to
which
I
have
referred.
5.
On
December
17,
the
sheriff
executed
the
writs.
6.
The
reason
the
Minister
sent
letters
instead
of
serving
the
petitioners
personally
was
to
ensure
surprise.
As
Mr.
Casey,
the
solicitor
for
the
petitioners,
put
it
in
his
affidavit:
5.
When
I
asked
those
officials
why
they
did
not
give
actual
notice
to
my
clients
of
the
assessments
and
reassessments
and
of
the
Minister's
direction
under
Section
225.2
of
the
Income
Tax
Act
prior
to
taking
execution
proceedings,
I
was
advised
in
words
to
the
effect
that
Revenue
Canada
purposely
refrained
from
giving
the
Petitioners
actual
notice
because
Revenue
Canada
feared
that
such
notice
defeats
the
purpose
of
section
225.2
of
the
Income
Tax
Act
by
removing
the
element
of
surprise.
The
reference
to
"officials"
is
to
those
officers
of
the
Department
of
National
Revenue
with
whom
Mr.
Casey
met
on
December
30,
1986.
The
substance
of
paragraph
5
is
not
controverted
in
the
evidence
adduced
by
the
respondents.
I
conclude
that
the
officials
of
the
Department
knew
full
well
when
the
process
was
invoked
that
the
taxpayer
would
have
no
opportunity
whatever
to
pay
up
the
assessment.
I
hold:
1.
That
the
Minister
could
not
have
had
any
rational
belief
that
either
or
both
of
the
documents
could
come
into
the
hands
of
the
petitioners
before
execution
proceedings
began
on
December
17.
2.
That
when
the
Minister
began
on
the
17th
to
take
actions
described
in
paragraphs
225.1(a)
to
(g)
he
had
no
belief
that
the
petitioners
could
not
conveniently
be
found.
He
believed
that
the
petitioners
were
at
home.
So
what
it
comes
to
is
that
all
in
one
day,
the
Minister
assessed
for
tax
asserted
due,
sent
a
letter
of
assessment
with
a
demand
for
payment,
obtained
a
judgment,
and
obtained
process
of
execution,
and
the
next
day
executed
that
process.
Of
all
this,
the
petitioners
had
no
knowledge
until
they
returned
home
from
their
holiday.
The
question
is
whether
the
section
authorizes
this
course
of
conduct.
Section
225.2
is
part
of
the
enforcement
provisions
of
the
Act
and
can
only
be
properly
understood
within
the
scheme:
(1)
Notwithstanding
section
225.1,
where
it
may
reasonably
be
considered
that
collection
of
an
amount
assessed
in
respect
of
a
taxpayer
would
be
jeopardized
by
a
delay
in
the
collection
thereof,
and
the
Minister
has,
by
notice
served
personally
or
by
registered
letter
addressed
to
the
taxpayer
at
his
latest
known
address,
so
advised
the
taxpayer
and
directed
the
taxpayer
to
pay
forthwith
the
amount
assessed
or
any
part
thereof,
the
Minister
may
forthwith
take
any
of
the
actions
described
in
paragraphs
225.1(1)(a)
to
(g)
with
respect
to
that
amount
or
that
part
thereof.
1.
By
Part
XV,
all
tax,
interest
and
penalties
payable
under
the
Act
are
debts
due
to
Her
Majesty
and
recoverable
in
the
Federal
Court
or
any
other
Court
of
competent
jurisdiction.
2.
An
amount
assessed
under
the
assessment
provisions
is
an
amount
payable.
3.
The
Minister
may
certify
the
amount,
obtain
a
judgment
on
a
certificate
and
obtain
execution
thereon
(section
223).
4.
Before
1985,
the
Minister
could
collect
the
amount
assessed
even
though
the
taxpayer
disputed
the
assessment.
Of
course,
if
the
taxpayer
ultimately
succeeded,
the
Minister
gave
him
back
his
money.
5.
By
the
1985
amendments
(S.C.
1985,
c.
45)
execution
is
postponed
until
the
appeal
process
if
invoked
by
the
taxpayer
is
exhausted
to
the
level
of
trial
e.g.
as
to
the
appeal
to
the
Minister,
see
subsection
225.1(2):
(2)
Idem.
Where
a
taxpayer
has
served
a
notice
of
objection
under
this
Act
to
an
assessment
of
an
amount
payable
under
this
Act,
other
than
an
amount
payable
under
Part
VIII
or
subsection
227(9),
the
Minister
shall
not,
for
the
purpose
of
collecting
the
amount
in
controversy,
take
any
of
the
actions
described
in
paragraphs
(1)(a)
to
(g)
before
the
day
that
is
90
days
after
the
day
on
which
notice
is
mailed
to
the
taxpayer
that
the
Minister
has
confirmed
or
varied
the
assessment.
This
was
a
significant
change
in
the
legal
rights
of
the
“creditor”
against
the
alleged
"debtor".
6.
But
by
section
225.2
which
I
have
quoted
earlier,
the
Minister
retained
the
power
"where
it
may
reasonably
be
considered,
collection
would
be
jeopardized"
to
invoke
the
process
of
certification,
registration
and
collection.
It
is
not,
I
think
fanciful
to
say
that
this
is
a
kind
of
statutory
Mareva
injunction,
albeit
one
with
even
more
potentially
devastating
effects
than
such
an
injunction
has.
In
my
opinion,
the
concept
underlying
section
225.2
is
simple.
The
taxpayer
must
pay
up
right
away
or
the
Minister
will
use
the
full
panoply
of
his
powers.
The
amount
assessed
is
effectively
treated
as
a
demand
debt
upon
the
non-payment
of
which
then
and
there
the
taxpayer
is
in
the
position
he
was
before
the
1985
amendments.
But
how
can
the
taxpayer
avoid
the
seizure
of
his
property
by
paying
up
unless
he
knows
that
he
owes
the
money
(i.e.
has
been
assessed)
and
that
the
Minister
insists
on
having
it?
In
the
case
before
me,
the
assessment
and
the
demand
for
payment
were
both
posted
on
December
16,
and
the
seizure
took
place
the
next
day.
This
course
of
action
was
deliberately
adopted
so
that
the
taxpayer
would
not
have
a
chance
to
pay
up.
To
adopt
a
course
of
action
deliberately
intended
as
this
was
to
deprive
the
taxpayer
of
the
opportunity
however
brief
of
paying
up
before
the
seizure
of
all
his
property
is,
in
my
opinion,
to
misuse
the
power
conferred.
It
is
a
subversion
of
Parliamentary
intention.
The
thrust
of
these
sections
is
that
the
taxpayer
is
to
be
given
the
opportunity
to
appeal
and
the
opportunity
to
pay.
Section
225.2
is
a
special
power
for
a
limited
purpose.
The
concept
that
a
power
must
be
exercised
to
carry
out
the
purpose
of
the
donor
and
not
to
subvert
that
purpose
applies
not
only
in
public
law
but
also
in
private
law.
The
remarks
of
Lord
Westbury,
L.C.
in
Portland
v.
Topham
(1864),
11
H.L.
Cas.
32
at
54
are
apposite:
Without
farther
dwelling
on
the
matter,
inasmuch
as
your
Lordships
concur
in
opinion,
I
think
we
must
all
feel
that
the
settled
principles
of
the
law
upon
this
subject
must
be
upheld,
namely,
that
the
donee,
the
appointor
under
the
power,
shall,
at
the
time
of
the
exercise
of
that
power,
and
not
for
any
purpose
for
which
it
is
used,
act
with
good
faith
and
sincerity,
and
with
an
entire
and
single
view
to
the
real
purpose
and
object
of
the
power,
and
not
for
the
purpose
of
accomplishing
or
carrying
into
effect
any
bye
or
sinister
object
(I
mean
sinister
in
the
sense
of
its
being
beyond
the
purpose
and
intent
of
the
power)
which
he
may
desire
to
effect
in
the
exercise
of
the
power.
The
application
of
this
principle
when
the
power
is
one
conferred
by
Parliament
for
a
public
purpose
is
adverted
to
in
Padfield
v.
Minister
of
Agriculture,
[1968]
1
All
E.R.
694
at
701
by
Lord
Reid:
If
it
is
the
Minister’s
duty
not
to
act
so
as
to
frustrate
the
policy
and
objects
of
the
Act
of
1958,
and
if
it
were
to
appear
from
all
the
circumstances
of
the
case
that
that
has
been
the
effect
of
the
Minister’s
refusal,
then
it
appears
to
me
that
the
court
must
be
entitled
to
act.
Now
of
course
the
facts
in
the
authorities
to
which
I
have
referred
are
very
different
indeed
from
the
facts
before
me,
but
they
are
statements
of
a
principle
just
as
applicable
throughout
the
whole
of
the
law
as
is
the
maxim
delegatus
non
potest
delegare.
Here
the
plain
purpose
of
the
section
is
to
give
the
erring
taxpayer
an
opportunity
no
matter
how
brief
to
pay.
To
choose
a
method
of
notification
deliberately
intended
to
deprive
him
of
that
opportunity
is
to
frustrate
the
object
of
section
225.2
of
the
Income
Tax
Act
and
the
related
sections.
As
I
understood
him,
counsel
for
the
Minister
argued
that
literal
compliance
is
all
that
is
necessary.
If
literal
compliance
is
all
that
is
required,
then
the
Minister
could
put
a
registered
letter
in
the
post
at
8:00
a.m.
in
Cape
Dorset
addressed
to
a
taxpayer
whose
“last
known
address"
was
Sandspit,
B.C.
and
have
a
sheriff's
officer
in
the
taxpayer's
home
in
the
Queen
Charlotte
Islands
at
5:00
a.m.
Pacific
Time.
I
have
purposely
given
an
exaggerated
example.
But
I
see
no
difference
in
principle
between
that
example
and
what
happened
here.
Each
is
an
example
of
the
taxpayer
being
deliberately
deprived
of
the
chance
to
pay.
In
other
words,
the
condition
precedent
cannot
be
held
to
have
been
performed
when
the
Minister
knew
that
because
of
the
course
of
post
the
taxpayer
cannot
have
received
the
direction
to
pay.
If
Parliament
had
intended
the
Minister
to
have
the
right
to
take
the
actions
described
in
section
225.1
without
notice
or
a
genuine
attempt
at
notice
to
the
taxpayer,
it
could
easily
have
said
"The
Minister
may
if
he
deems
it
advisable
without
notice
to
the
taxpayer,
forthwith
take
any
of
the
actions
described,
etc."
What
is
at
stake
here
is
the
validity
of
the
act
of
the
Minister,
not
the
behaviour
of
the
petitioners.
This
judgment
is
not
in
any
way
a
determination
of
what
the
position
would
be
in
law
had
the
Minister
known
before
the
events
in
question
that
the
petitioners
were
in
Mexico,
a
fact
which
was
known
to
the
Royal
Canadian
Mounted
Police
by
virtue
of
a
letter
which
had
been
left
with
the
Royal
Canadian
Mounted
Police
detachment
in,
I
believe,
Vancouver
before
the
petitioners
departed.
Nor
is
it
in
any
way
a
determination
of
the
position
where
to
the
knowledge
of
the
Minister
the
taxpayer
cannot
be
found.
I
wish
to
make
it
clear
that
I
am
not
in
this
judgment
making
any
finding
on
whether
“it
may
reasonably
be
considered
that
collection
of
an
amount
assessed
.
.
.
would
be
jeopardized
by
a
delay..
.
.”
Nor
am
I
making
any
finding
as
to
whether
the
direction
to
pay
by
the
Minister
was
justified
in
the
circumstances.
The
petitioner
in
the
petition
asks
for
"such
further
and
other
relief
as
to
this
Court
seems
just".
My
view
is
that
the
relief
which
is
just
is
a
declaration
that
as
of
December
17,
1986
the
Minister
had
no
lawful
right
to
take
any
of
the
actions
so
described.
I
am
willing
to
hear
counsel
further
on
the
appropriate
remedy.
For
that
purpose
they
may
if
they
so
desire
make
arrangements
through
the
Registry.
Declaration
accordingly.
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