Cattanach, J:—These are two applications based on certificates for the 1971 and 1972 taxation years the styles of which differ, made pursuant to rule 324 for orders for the removal and sale of the identical property being 141 shares of Glenalta Business Services Ltd. registered in the name of Dr. William H. Cochrane and seized by the Sheriff of the Judicial District of Edmonton, in the Province of Alberta on January 3, 1978 pursuant to two writs of execution the first dated November 29, 1976 directing the Sheriff to levy on the goods, chattels, lands and tenements of William H. Cochrane in satisfaction of the sum of $14,049.17 together with interest on the sum of $12,088.15 as certified as being owed to Her Majesty the Queen by an officer of the Department of National Revenue no doubt authorized to do so by the Minister of National Revenue also on November 29, 1976 for at least three taxation years.
The second application for the removal and sale of the identical goods relates to a seizure of those goods also on January 3, 1978 in satisfaction of an indebtedness by William H. Cochrane in the amount of $9,678.31 in respect of income tax for the taxpayer’s 1972 taxation year together with interest in the amount of $7,639.02 being the amount for income tax included in the sum of $9,678.31 as at October 12, 1977 from that date forward. The 1972 taxation year was not included in the first certificate.
This certificate is dated October 27, 1977.
Service of the notices of motion herein, both dated November 14, 1983, was non-personal by registered mail addressed to William H. Cochrane, as the registration receipts of the postmaster at Edmonton, Alberta indicate, on February 3, 1984.
There has been no evidence adduced as to when the envelope or envelopes so addressed were received by the addressee which could have been readily established by an arrival receipt card which, in the parlance of Canada Post, is also called “double registration”.
In the absence of such evidence of receipt there is no evidence when such envelope will have been received by the addressee in the ordinary course of post. In the absence of proof of receipt it may well be that the envelope was never received in which event the notice shall be considered as never sent, (see rule 313(2))
Evidence of receipt or deemed receipt is necessary in order that the Court may be satisfied that, William H. Cochrane, an interested party, has had a reasonable opportunity to make representations either in writing or orally.
A reasonable time would be the time consumed in the course of post to the addressee, a reasonable time to prepare representations in reply to the notices and the time consumed in the mail for the reply to be received.
Incidentally the notices of motion dated November 14, 1983 were received in the Registry on January 10, 1984 but the affidavit of non-personal service was not received in the Registry until February 16, 1984, that delay no doubt being prompted by the ultimatum in a letter from the solicitor for the applicant addressed to Mr. William H. Cochrane dated November 21, 1983 that if a reply was not received within 20 days from that date the present applications would be made.
It is also observed that in each of the draft orders it is requested that the costs of the respective applications shall be fixed in a lump sum of $100.
In view of the fact that each application is for the authorization of removal and sale of the identical goods already under seizure by the sheriff it is incongruous that costs should be allowed twice for the removal and sale of the same wares. There is an apparent duplication.
Rule 344 provides that the Court may direct the payment of a fixed or lump sum in lieu of taxed costs.
The basic purpose of the rule is to avoid the inconvenience and expense of a taxation of the costs but it is not to be utilized as an expedient to seek an increase of the taxable costs provided for in the tariff.
Accordingly consideration can be given to representations directed to the justification of an award in a lump sum in the judgment in excess of taxable costs, otherwise the lump sum should be the taxable costs and disbursements provided for in the tariff bearing in mind that there is to be one removal and sale.
The second paragraph of the operative portion of the draft order may well be superfluous bearing in mind that the Sheriffs duties in respect of payment to creditors is provided for by provincial statute. If inclusion of the paragraph is considered expedient then it should be qualified to indicate that the sums to be paid to Her Majesty are those to which She is entitled in accordance with the pertinent legislation to which the Sheriff is subject.
It is also observed that in the draft of the judgment sought in one instance the style of the applications is as used herein but in the other there is an inaccurate recital of a cause of action between Her Majesty as plaintiff and William H. Cochrane as defendant. There is no action between parties so named (see The Queen v Star Treck Holdings Ltd. et al,[1978] 1 F.C. 61; [1974] CTC 621; 77 DTC 5311). It is appreciated that the certificate inaccurately alleges a cause of action and the writ of execution perpetuates that error. In the circumstances that error may be further perpetuated in the order reluctantly and only in the event it can be established that there may be some difficulty in the identity of the debtor.
For the foregoing reasons the applications are denied but with leave to reapply by applications which are supported by evidence and representations which will overcome the reasons for which the present applications have been denied. Orders to this effect are endorsed on the notices of motion.
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