Date: 20061016
Docket: ITA-11095-02
Citation: 2006
FC 1225
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
Applicant
and
DANIEL BABLITZ
(sometimes carrying on business as
D&D Jewellers)
Respondent
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.
“John
A. O’Keefe”
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