Docket: A-419-13
Citation: 2015 FCA 266
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CORAM:
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NOËL C.J.
NEAR J.A.
RENNIE J.A.
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BETWEEN:
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ELI HUMBY
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First Appellant
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and
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CENTRAL
SPRINGS LTD.
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Second Appellant
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and
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A&E
PRECISION FABRICATION AND MACHINE SHOP INC.
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Third Appellant
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and
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HER MAJESTY THE
QUEEN AND
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First Respondent
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and
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HER
MAJESTY THE QUEEN IN RIGHT OF NEWFOUNDLAND AND LABRADOR, AS REPRESENTED BY
THE OFFICE OF THE HIGH SHERIFF
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Second
Respondent
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REASONS FOR
JUDGMENT
NEAR J.A.
I.
Overview
[1]
The appellants appeal a decision of a judge of
the Federal Court dated November 8, 2013 in which he dismissed the plaintiffs’
action against the Canada Revenue Agency (the CRA) and the Newfoundland and
Labrador Office of the High Sheriff (the Sheriff) with costs.
II.
Background
[2]
This case has a long and somewhat complicated
history. Eli Humby, the first appellant, was at the relevant times a director
and controlling shareholder of Central Springs Ltd. (Central Springs) and
A&E Precision Fabrication and Machine Shop Inc. (A&E), the other two
appellants. He was also at the relevant times a director and controlling
shareholder of Humby Enterprises Ltd (HEL), which is not a party to this claim.
HEL was in the logging business in central and western Newfoundland.
[3]
In 2000, HEL’s logging contract with A.L.
Stuckless and Sons Ltd. (Stuckless) to cut wood was not renewed, which resulted
in a 90% reduction in HEL’s income. HEL commenced litigation against Stuckless
and Corner Brook Pulp and Paper Ltd. (the company to which Stuckless delivered
its pulp), which was unsuccessful and concluded in 2003 (Humby Enterprises
Ltd. v. A.L. Stuckless & Sons Ltd., 2003 NLCA 20, 225 Nfld. & P.E.I.R.
268).
[4]
HEL failed to remit payroll deduction amounts,
also known as source deductions, as well as GST, in 2000. In 2001, the CRA
issued a Requirement to Pay. HEL asked the Province of Newfoundland and
Labrador for forgiveness of taxes and an allocation of wood supply on Crown
lands, claiming it was at the brink of financial ruin. HEL’s tax debts were
certified in the Federal Court and registered with the Judgment Enforcement
Registry in late 2002. Humby and HEL sued the Province for breach of a promise
to supply wood. This litigation was unsuccessful at trial (Humby v.
Department of Forest Resources, 2005 NLTD 87, 247 Nfld. & P.E.I.R. 273)
and on appeal (Humby Enterprises Ltd v. Newfoundland and Labrador, 2008
NLCA 21, 285 Nfld. & P.E.I.R. 76).
[5]
Part way through 2002, Central Springs and
A&E became the employers for certain HEL employees. In October 2002, CRA
tax collector Jerry Peddle found discrepancies in HEL, Central Springs and
A&E’s source deduction accounts. In June 2003, an agreement was reached with
the CRA pursuant to which the three companies were to keep all accounts
current, including payroll and HST. In exchange, the CRA would not file further
certificates and the outstanding tax debt repayment would wait until the
conclusion of Humby and HEL’s wood supply litigation with the Province of
Newfoundland and Labrador. Despite the agreement, the companies’ accounts were
not kept current.
[6]
In July 2003, a trust audit examination by Mr.
Peddle resulted in assessments against A&E and Central Springs for failure
to remit source deduction, interest, and penalties in respect of the tax years
2001, 2002 and 2003.
[7]
In June 2004, a meeting took place at which
Humby was advised of the amounts owed by Central Springs and A&E and the
requirement to make a lump sum payment, failing which the amounts would be
certified. Humby denied before the Federal Court that this meeting took place,
but the Federal Court judge found otherwise. No payment was made, and the CRA
certified and registered the debts of Central Springs and A&E in August and
December of 2004.
[8]
In January 2005, the CRA initiated enforcement
actions on two of the appellants’ properties: one in Gander, and one in Benton.
Mr. Peddle instructed the Office of the High Sheriff of Newfoundland and
Labrador to begin enforcement against the assets of HEL, Central Springs and
A&E by seizing and selling their equipment and inventory.
[9]
On February 2, 2005, Humby’s legal counsel wrote
to the Sheriff to obtain release from the seizure at the Benton property
because it was not owned by any of the judgment debtors. The CRA’s instructions
to sell land and buildings at Benton were withdrawn.
[10]
In April 2005, the appellants filed proceedings
in the Supreme Court of Newfoundland and Labrador challenging the executions.
The proceedings were adjourned.
[11]
On August 29, 2005, Humby signed a Release and
Discharge on behalf of himself, HEL, Central Springs and A&E in exchange
for the return of chattels located on the Benton property.
[12]
Also in August 2005, Central Springs and A&E
filed Notices of Objection with the Minister of National Revenue (the Minister)
in respect of the source deduction assessments for 2001, 2002 and 2003. The CRA
took the position that the objection was filed out of time, but on September
26, 2006, Justice Bowie ruled that the CRA had not proven that the Notices of
Assessment were sent and received and therefore the time for filing had not
expired (Central Springs Ltd v. Canada, 2006 TCC 524, [2006] T.C.J. No.
414 (QL) (Central Springs #1)).
[13]
On March 13, 2006, the CRA instructed the
Sheriff to sell the seized personal property from the Gander property. On June
28, 2006, Central Springs and A&E’s seized assets were sold by bids. Assets
which did not fetch 75% or more of their appraised value were not sold. According
to the Office of the High Sheriff, a group of items appraised at $53,000.00 was
sold for $60,000.00, and another group of items appraised at $134,001.90
received bids totalling $13,055.00 and was not sold. On October 22, 2007,
Justice Heneghan of the Federal Court dismissed a motion by the CRA to sell the
remaining property (Canada (Minister of National Revenue – MNR) v. Humby
Enterprises Ltd., 2007 FC 1085, 324 F.T.R. 11). The unsold items
were returned to the appellants at the end of October or beginning of November
2007.
[14]
In a judgment dated October 22, 2010, Justice
Boyle of the Tax Court of Canada ordered that the assessments against Central
Springs and A&E be vacated for the 2001, 2002 and 2003 taxation years (Central
Springs Ltd v. Canada, Reasons for Judgment, 2010 TCC 543, 197 A.C.W.S.
(3d) 1050 (Central Springs #2)). Justice Boyle later acknowledged that
he had made an inadvertent error in ordering that the assessments be vacated as
the reasons that he gave did not support this result (Central Springs #2,
Reasons for Amended Judgment at para. 7). In his amended judgment dated
December 13, 2010, he corrected his earlier judgment and ordered that the
Minister reconsider and reassess the taxpayers in accordance with the reasons
of his October 22, 2010 judgment. Justice Boyle’s October 22, 2010 reasons
plainly acknowledge that “[p]art way through 2002, A
& E and Central Springs became the employers of those workers who were
needed for their businesses” (Reasons for Judgment at para. 7). However,
he disagreed with the Minister’s determination that “A
& E and Central Springs should have been regarded as the employers of these
transferred employees even before the 2002 corporate payroll organization”
(Reasons for Judgment at para. 8). He held that the Minister’s assessments
should be vacated for 2001 and for the portion of 2002 prior to the
reorganization, and that the Minister’s assessments for the latter portion of
2002 and for 2003 were valid.
[15]
A&E was dissolved on August 26, 2008, and
Central Springs was dissolved on September 24, 2009. The appellants’ Statement
of Claim in this proceeding was filed on August 17, 2009.
[16]
The plaintiffs’ arguments before the Federal
Court related to the 2002-2003 assessments and the seizure and sale of assets
on the Gander and Benton properties. The Federal Court judge thoroughly
canvassed the numerous arguments made by the plaintiffs, and ultimately
rejected them all. While he was sympathetic to the difficulties encountered by
Mr. Humby, he concluded that “at the end of the day the
Plaintiffs cannot avoid the fact that they owed tax moneys, that they failed to
pay the amounts due and therefore the CRA was entitled to seize and sell assets
to satisfy the amounts due” and that the “High
Sheriff’s Office carried out its duties as required by law” (Federal
Court at para. 180).
III.
Positions of the Parties
A.
Appellants
[17]
The appellants argue that Justice Boyle’s
amended judgment of December 13, 2010 (Central Springs #2, Reasons for
Amended Judgment) did not confirm the validity of the assessments for any part
of 2001, 2002 and 2003. The appellants argue that Justice Boyle simply gave the
CRA the opportunity to reconsider the assessments made for these taxation
years. The appellants submit that the Federal Court judge reversed Justice
Boyle’s decision in this regard and rejected the Federal Court judge’s
conclusion that Justice Boyle’s judgment provided a basis upon which to find
the respondents’ actions were lawful.
[18]
The appellants also argue that the CRA is not
permitted to take enforcement action until the appeal period following a Notice
of Assessment expires. They submit that pursuant to the September 26, 2006
order of Justice Bowie in Central Springs #1, the appellants’ time to
file a Notice of Objection did not expire until September 2005, yet the CRA
initiated enforcement action in January 2005.
[19]
The appellants argue that the respondents’
actions were also excessive. The appellants assert that the assets seized were
of a value far in excess of any amounts that may have been outstanding. In addition,
the appellants state that some of the equipment sold was not properly
appraised. Further, that the costs associated with the seizure of the
appellants’ assets were greatly increased by requiring unnecessary security on
the property and by moving some these assets from one site to another.
[20]
The appellants argue that as a result of these
unlawful and excessive enforcement actions, punitive and exemplary damages
should be awarded and the Federal Court judge erred in finding that such
damages should not be awarded to them.
B.
Respondent 1—Canada Revenue Agency
[21]
The CRA argues that the Federal Court judge
correctly held that the CRA’s actions were lawful and collection was authorized
and carried out in accordance with the law. It submits that notwithstanding the
fact that the appellants did not receive the appealed assessments, these
assessments were valid and binding and existed at the time certificates were
registered in the Judgment Enforcement Registry. It argues that the collection
actions carried out by the CRA were authorized by section 223 and paragraphs
225.1(6)(b), (d) and (e) of the Income Tax Act,
R.S.C. 1985, c. 1 (5th Supp.) (the ITA), and by subsection 163(3)
of the Excise Tax Act, R.S.C. 1985, c. E-15. The CRA submits that the
appellants have not identified any error of law made by the Federal Court judge
with respect to the lawfulness of the CRA’s actions, and that he correctly
pointed out that he had no jurisdiction to review the validity of the
assessments.
[22]
The CRA also argues that the Federal Court judge
did not ignore evidence or draw erroneous conclusions from the evidence, as
alleged by the appellants. It submits that the Federal Court judge did not
commit a palpable and overriding error when he found on the evidence before him
that the actions of the CRA were reasonable in all the circumstances. It argues
that the Federal Court judge considered all of the evidence before him, and
that the appellant is asking this Court to reweigh evidence and second guess
the weight assigned to particular items of evidence, which is not the function
of an appellate court.
[23]
The CRA argues that Humby failed to establish
that any damages he suffered were caused by the actions of the CRA, and that
the appellants put no evidence before the Federal Court judge which could have
formed the legal basis for an award of damages.
C.
Respondent 2—Office of the High Sheriff
[24]
The Sheriff argues that it undertook its
enforcement proceedings in good faith and in a commercially reasonable manner,
as required pursuant to paragraph 3(5)(f) of the Judgment Enforcement
Act, S.N.L. 1996, Ch. J-1.1.
IV.
Issues
[25]
I have distilled the various issues raised as
follows:
- Were the CRA’s
assessments of the appellants valid and lawful?
- Did the CRA act
in an improper and unlawful manner?
- Did the Office
of the High Sheriff act in good faith and in a commercially reasonable
manner?
- Are the claims
made by A&E a nullity?
- Are the claims
barred by the Limitations Act, S.N.L. 1995, Ch. L-16.1?
- Are the
appellants entitled to damages?
V.
Standard of Review
[26]
The standard of review on this appeal is
governed by Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
Pursuant to that decision, questions of law and legal principles extricable
from questions of mixed fact and law are reviewed on a correctness standard, and
questions of fact and mixed fact and law are reviewed on a standard of palpable
or overriding error.
VI.
Analysis
[27]
The arguments made by the appellants before this
Court are virtually identical to those put before the Federal Court. The
appellants essentially ask that this Court re-weigh the evidence and reach a
different conclusion. This is not the role of an appellate court. Rather, the
appellants must show that the Federal Court judge erred on a question of law or
made a palpable and overriding error with respect to the judge’s assessment of
the evidence before him or the application of the law to the evidence before
him in this case.
(1)
Were the CRA’s
assessments of the appellants valid and lawful?
[28]
The foundation of the appellants’ argument is
that the Federal Court judge erred in finding that the CRA’s assessments were
valid and lawful. The evidence clearly shows that as a result of a trust audit
conducted in July 2003, which indicated that A&E and Central Springs had
failed to remit source deductions, the CRA issued assessments for taxation
years 2001, 2002 and 2003. Further, that as a result of the appellants’ failure
to pay these amounts, the CRA certified the debts of the corporate appellants
in August 2004 and December 2004 (Federal Court at para. 28).
[29]
These are the assessments which Justice Bowie of
the Tax Court of Canada determined had not been delivered to the taxpayers in Central
Springs #1. He allowed the appellants to proceed with their Notice of
Objection with the result that the amounts owing by reason of the underlying
assessments could not be subjected to immediate collection actions by reason of
section 225.1(1) of the ITA. However, Justice Bowie’s Order is of no
assistance to the appellants in this matter, as the certified amounts for the
period prior to the one contemplated by the Notice of Objection remained
outstanding.
[30]
Further, as noted by the Federal Court judge,
the outstanding certified amounts related to source deductions and as such were
not subject to the collection restrictions contained in subsection 225.1(1) of
the ITA. As stated by the Federal Court judge at paragraph 56:
Subsection 225.1(1) of the ITA provides
that, with certain exceptions, the Minister shall not take any of the listed
collection actions against a taxpayer until after the day that is 90 days after
the day that a Notice of Assessment (or Reassessment) is mailed to the
taxpayer, or if the taxpayer files a notice of objection or an appeal of the
assessment, until the objection or appeal has been dealt with finally.
[31]
Outstanding amounts owing related to source
deductions are captured by one of the relevant exceptions. These amounts are
subject to immediate collection action, as clearly set out in paragraph
225.1(6)(b). Again, per the Federal Court at paragraph 59:
As a result of paragraph 225.1(6)(b) of the
ITA, source deductions (payroll amounts) which are required to be deducted or
withheld and remitted pursuant to subsection 153(1) and Regulation 101 of the
ITA, are not subject to the collections restrictions imposed by subsection
225.1(1) of the ITA. In addition, penalties and interest payable as a result of
the failure to remit an amount referred to in paragraph 225.1(6)(b) are also
not the subject of collections restrictions.
The Federal Court judge properly concluded (at
para. 63) that
[t]he net effect of these provisions is that
in respect of the employees’ deduction from payroll of the amount for
withholding and remission to CRA, CRA can take collection action immediately
and does not have to wait the 90-day period otherwise generally preventing CRA
enforcement action.
[32]
In addition, the appellants argue that the
decision of Justice Boyle in Central Springs #2 invalidated all prior
assessments made by the CRA with respect to the appellants. However, the
Federal Court judge correctly noted at paragraph 51 of his reasons that the
assessments as they relate to part of 2002 and 2003 in respect of source
deductions were valid and confirmed in Justice Boyle’s amended decision of
December 13, 2010. The appellants did not appeal the judgment of Justice Boyle
and the Federal Court judge concluded that he had no jurisdiction to review the
validity of the tax assessments. I agree.
[33]
In my view, the Federal Court judge properly
concluded that there existed outstanding certified amounts owed by the
appellants and that the CRA was lawfully entitled to undertake enforcement
action.
(2)
Did the CRA act in an
improper and unlawful manner?
[34]
It remains to be determined if the CRA acted in
an improper or unlawful manner with respect to its collection efforts. The
Federal Court judge considered the evidence of the appellants to the effect
that Mr. Peddle, the CRA auditor, acted to “bring Humby
down” (Federal Court at para. 94). The judge concluded after considering
the enforcement actions as a whole that they were reasonable and conducted for
no other purpose than the collection of the outstanding debts (Federal Court at
para. 107). I see no reason to disturb this finding.
(3)
Did the Office of the
High Sheriff act in good faith and in a commercially reasonable manner?
[35]
Similarly, with respect to the Office of the
High Sherriff, the Federal Court judge found that the Sherriff had acted in
good faith and in a commercially reasonable manner. Just as I have found no
reviewable error with regard to the CRA’s actions, including as they relate to
its instructions to the Sheriff, I also find no error in the Federal Court
judge’s finding that there is no basis for liability on the part of the
Sheriff, on the grounds that the Sheriff followed the CRA’s instructions (Federal
Court at para. 137). The appellants also argue that the Sheriff was “excessive” in the manner in which it carried out the
seizure and sale of their property. The appellants raised these arguments
before the Federal Court judge, who dealt with, and dismissed them, in turn. I
can see no reason to disturb the Federal Court judge’s findings in this regard.
(4)
Are A&E’s claims a
nullity?
[36]
The Federal Court judge held that because
A&E was dissolved pursuant to the Newfoundland Corporations Act,
R.S.N.L. 1990, C. C-36 prior to the Statement of Claim being filed, A&E’s
claims are a nullity. He relied on Investments Ltd v. National Bank of
Greece (Canada), 37 B.L.R. (2d) 324, [1997] O.J. No. 4997 (QL) (Ct. J.) in
so holding. The Federal Court judge made no reviewable error in this regard.
(5)
Are the claims barred
by the Limitations Act?
[37]
The Federal Court judge properly held that many
of the appellants’ claims are statute-barred pursuant to sections 5(a), (c),
(d), and (g) of the Newfoundland and Labrador Limitations Act. I see no
reason to disturb the Federal Court judge’s findings in this regard.
(6)
Are the appellants
entitled to damages?
[38]
Because the appellants have failed to
demonstrate that the respondents were at fault, it follows that they are not
entitled to damages.
VII. Disposition
[39]
I would dismiss the appeal with costs.
"David G. Near"
“I agree.
Marc Noël Chief Justice”
“I agree.
Donald J. Rennie
J.A.”
APPENDIX: Relevant Legislative Provisions
A. Income Tax Act, R.S.C. 1985, c. 1
(5th Supp.)
Section 152—Assessment
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Liability not dependent on assessment
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Responsabilité
indépendante de l’avis
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(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.
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(3) Le fait qu’une cotisation est inexacte ou incomplète ou
qu’aucune cotisation n’a été faite n’a pas d’effet sur les responsabilités du
contribuable à l’égard de l’impôt prévu par la présente partie.
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…
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[…]
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Assessment deemed valid and binding
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Présomption de
validité de la cotisation
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(8) An assessment
shall, subject to being varied or vacated on an objection or appeal under
this Part and subject to a reassessment, be deemed to be valid and binding
notwithstanding any error, defect or omission in the assessment or in any
proceeding under this Act relating thereto.
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(8) Sous réserve des modifications qui peuvent y être apportées ou
de son annulation lors d’une opposition ou d’un appel fait en vertu de la
présente partie et sous réserve d’une nouvelle cotisation, une cotisation est
réputée être valide et exécutoire malgré toute erreur, tout vice de forme ou
toute omission dans cette cotisation ou dans toute procédure s’y rattachant
en vertu de la présente loi.
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Section 153—Withholding
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153. (1) Every person paying at any time in
a taxation year
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153. (1)
Toute personne qui verse au cours d’une année d’imposition l’un des montants
suivants :
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(a) salary, wages or other remuneration,
other than amounts described in subsection 115(2.3) or 212(5.1),
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a) un
traitement, un salaire ou autre rémunération, à l’exception des sommes visées
aux paragraphes 115(2.3) ou 212(5.1);
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…
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[…]
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shall deduct
or withhold from the payment the amount determined in accordance with
prescribed rules and shall, at the prescribed time, remit that amount to the
Receiver General on account of the payee’s tax for the year under this Part
or Part XI.3, as the case may be, and, where at that prescribed time the
person is a prescribed person, the remittance shall be made to the account of
the Receiver General at a designated financial institution.
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doit en
déduire ou en retenir la somme fixée selon les modalités réglementaires et
doit, au moment fixé par règlement, remettre cette somme au receveur général
au titre de l’impôt du bénéficiaire ou du dépositaire pour l’année en vertu
de la présente partie ou de la partie XI.3. Toutefois, lorsque la personne
est visée par règlement à ce moment, la somme est versée au compte du
receveur général dans une institution financière désignée.
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Section 225.1—Collection restrictions
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225.1 (1) If a
taxpayer is liable for the payment of an amount assessed under this Act,
other than an amount assessed under subsection 152(4.2), 169(3) or 220(3.1),
the Minister shall not, until after the collection-commencement day in
respect of the amount, do any of the following for the purpose of collecting
the amount:
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225.1 (1) Si un contribuable est redevable du montant d’une
cotisation établie en vertu des dispositions de la présente loi, exception
faite des paragraphes 152(4.2), 169(3) et 220(3.1), le ministre, pour
recouvrer le montant impayé, ne peut, avant le lendemain du jour du début du
recouvrement du montant, prendre les mesures suivantes :
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(a) commence legal proceedings in a court,
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a) entamer une poursuite devant un
tribunal;
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(b) certify the amount under section 223,
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b) attester le montant, conformément à
l’article 223;
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(c)
require a person to make a payment under subsection 224(1),
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c)
obliger une personne à faire un paiement, conformément au paragraphe 224(1);
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(d)
require an institution or a person to make a payment under subsection
224(1.1),
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d)
obliger une institution ou une personne visée au paragraphe 224(1.1) à faire
un paiement, conformément à ce paragraphe;
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(e) [Repealed, 2006, c. 4, s. 166]
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e) [Abrogé, 2006, ch. 4, art. 166]
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(f)
require a person to turn over moneys under subsection 224.3(1), or
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f)
obliger une personne à remettre des fonds, conformément au paragraphe
224.3(1);
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(g) give a notice, issue a certificate or make a direction
under subsection 225(1).
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g) donner un avis, délivrer un certificat
ou donner un ordre, conformément au paragraphe 225(1).
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(1.1) The
collection-commencement day in respect of an amount is
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(1.1) Le jour du début du recouvrement d’un montant correspond :
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(a) in the
case of an amount assessed under subsection 188(1.1) in respect of a notice
of intention to revoke given under subsection 168(1) or any of subsections
149.1(2) to (4.1), one year after the day on which the notice was mailed;
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a) dans
le cas du montant d’une cotisation établie en vertu du paragraphe 188(1.1)
relativement à un avis d’intention de révoquer l’enregistrement délivré en
vertu du paragraphe 168(1) ou l’un des paragraphes 149.1(2) à (4.1), un an
après la date de mise à la poste de l’avis d’intention;
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(b) in the case of an amount assessed under section 188.1,
one year after the day on which the notice of assessment was sent; and
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b) dans le cas du montant d’une cotisation
établie en vertu de l’article 188.1, un an après la date d’envoi de l’avis de
cotisation;
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(c) in any other case, 90 days after the day on which the
notice of assessment was sent.
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c) dans les autres cas, 90 jours suivant la
date d’envoi de l’avis de cotisation.
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(2) If a taxpayer has served a notice of objection under this Act
to an assessment of an amount payable under this Act, 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) until after the
day that is 90 days after the day on which notice is sent to the taxpayer
that the Minister has confirmed or varied the assessment.
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(2) Dans le cas
où un contribuable signifie en vertu de la présente loi un avis d’opposition
à une cotisation pour un montant payable en vertu de cette loi, le ministre,
pour recouvrer la somme en litige, ne peut prendre aucune des mesures visées
aux alinéas (1)a) à g) avant le quatre-vingt-onzième jour
suivant la date d’envoi d’un avis au contribuable où il confirme ou modifie
la cotisation.
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(3) Where a taxpayer has appealed from an assessment of an amount
payable under this Act to the Tax Court of Canada, the Minister shall not,
for the purpose of collecting the amount in controversy, take any of the
actions described in paragraphs 225.1(1)(a) to 225.1(1)(g)
before the day of mailing of a copy of the decision of the Court to the
taxpayer or the day on which the taxpayer discontinues the appeal, whichever
is the earlier.
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(3) Dans le cas
où un contribuable en appelle d’une cotisation pour un montant payable en
vertu de la présente loi, auprès de la Cour canadienne de l’impôt, le
ministre, pour recouvrer la somme en litige, ne peut prendre aucune des
mesures visées aux alinéas (1)a) à g) avant la date de mise à
la poste au contribuable d’une copie de la décision de la cour ou la date où
le contribuable se désiste de l’appel si celle-ci est antérieure.
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(4) Where a
taxpayer has agreed under subsection 173(1) that a question should be
determined by the Tax Court of Canada, or where a taxpayer is served with a
copy of an application made under subsection 174(1) to that Court for the
determination of a question, the Minister shall not take any of the actions
described in paragraphs 225.1(1)(a) to 225.1(1)(g) for the
purpose of collecting that part of an amount assessed, the liability for
payment of which will be affected by the determination of the question,
before the day on which the question is determined by the Court.
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(4) Dans le cas où un contribuable convient de faire statuer
conformément au paragraphe 173(1) la Cour canadienne de l’impôt sur une
question ou qu’il est signifié au contribuable copie d’une demande présentée
conformément au paragraphe 174(1) devant la Cour canadienne de l’impôt pour
qu’elle statue sur une question, le ministre, pour recouvrer la partie du
montant d’une cotisation, dont le contribuable pourrait être redevable selon
ce que la cour statuera, ne peut prendre aucune des mesures visées aux
alinéas (1)a) à g) avant la date où la cour statue sur la
question.
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(5) Notwithstanding any other provision in this section, where a
taxpayer has served a notice of objection under this Act to an assessment or
has appealed to the Tax Court of Canada from an assessment and agrees in
writing with the Minister to delay proceedings on the objection or appeal, as
the case may be, until judgment has been given in another action before the
Tax Court of Canada, the Federal Court of Appeal or the Supreme Court of
Canada in which the issue is the same or substantially the same as that
raised in the objection or appeal of the taxpayer, the Minister may take any
of the actions described in paragraphs 225.1(1)(a) to 225.1(1)(g)
for the purpose of collecting the amount assessed, or a part thereof,
determined in a manner consistent with the decision or judgment of the Court
in the other action at any time after the Minister notifies the taxpayer in
writing that
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(5) Malgré les
autres dispositions du présent article, lorsqu’un contribuable signifie,
conformément à la présente loi, un avis d’opposition à une cotisation ou en
appelle d’une cotisation devant la Cour canadienne de l’impôt et qu’il
convient par écrit avec le ministre de retarder la procédure d’opposition ou
la procédure d’appel jusqu’à ce que la Cour canadienne de l’impôt, la Cour
d’appel fédérale ou la Cour suprême du Canada rende jugement dans une autre
action qui soulève la même question, ou essentiellement la même, que celle
soulevée dans l’opposition ou l’appel par le contribuable, le ministre peut
prendre les mesures visées aux alinéas (1)a) à g) pour
recouvrer tout ou partie du montant de la cotisation établi de la façon
envisagée par le jugement rendu dans cette autre action, à tout moment après
que le ministre a avisé le contribuable par écrit que, selon le cas :
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(a) the decision of the Tax Court of Canada in that action
has been mailed to the Minister,
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a) le jugement de la Cour canadienne de
l’impôt dans l’action a été posté au ministre;
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(b) judgment has been pronounced by the Federal Court of
Appeal in that action, or
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b) la Cour d’appel fédérale a rendu
jugement dans l’action;
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(c) judgment has been delivered by the Supreme Court of
Canada in that action,
as the case may be.
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c) la Cour suprême du Canada a rendu
jugement dans l’action.
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(6) Subsections 225.1(1) to 225.1(4) do not apply with respect to
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(6) Les
paragraphes (1) à (4) ne s’appliquent pas :
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(a) an amount
payable under Part VIII;
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a) aux
montants payables en application de la partie VIII;
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(b) an amount required to be deducted or withheld, and
required to be remitted or paid, under this Act or the Regulations;
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b) aux montants à déduire ou à retenir, et
à remettre ou à payer, en application de la présente loi ou de son règlement;
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(c) an amount of tax required to be paid under section 116
or a regulation made under subsection 215(4) but not so paid;
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c) à l’impôt à payer en application de
l’article 116 ou d’un règlement d’application du paragraphe 215(4) et qui n’a
pas encore été payé;
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(d) the amount of any penalty payable for failure to remit
or pay an amount referred to in paragraph 225.1(6)(b) or 225.1(6)(c)
as and when required by this Act or a regulation made under this Act; and
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d) aux pénalités payables pour défaut de
remettre ou de payer un montant visé à l’alinéa b) ou c) de la
manière et dans le délai prévus à la présente loi ou à sone règlement;
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(e) any
interest payable under a provision of this Act on an amount referred to in
this paragraph or any of paragraphs 225.1(6)(a) to 225.1(6)(d).
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e) aux intérêts payables en application de
la présente loi sur l’un des montants visés au présent alinéa ou aux alinéas a)
à d).
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B. Excise Tax Act, R.S.C. 1985, c. E-15
Section 315—Assessment before
collection
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315. (1) The Minister may not take any collection action under
sections 316 to 321 in respect of any amount payable or remittable by a
person that may be assessed under this Part, other than interest, unless the
amount has been assessed.
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315. (1) Le
ministre ne peut, outre exiger des intérêts, prendre des mesures de
recouvrement aux termes des articles 316 à 321 relativement à un montant
susceptible de cotisation selon la présente partie que si le montant a fait l’objet
d’une cotisation.
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(2) If the Minister sends a notice of assessment to a person, any
amount assessed then remaining unpaid is payable forthwith by the person to
the Receiver General.
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(2) La partie
impayée d’une cotisation visée par un avis de cotisation est payable
immédiatement au receveur général.
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(3) The Minister may, subject to such terms and conditions as the
Minister may stipulate, postpone collection action against a person in
respect of all or any part of any amount assessed that is the subject of a
dispute between the Minister and the person.
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(3) Sous réserve
des modalités qu’il fixe, le ministre peut reporter les mesures de
recouvrement concernant tout ou partie du montant d’une cotisation qui fait
l’objet d’un litige.
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C. Newfoundland
and Labrador Judgment Enforcement Act, S.N.L. 1996, Ch. J-1.1
Section 3—Application
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(5) The following
applies to enforcement proceedings:
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…
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(f) all rights,
duties and functions of creditors and the sheriff under this Act shall be
exercised or discharged in good faith and in a commercially reasonable
manner;
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D. Newfoundland
and Labrador Limitations Act, S.N.L. 1995, Ch. L-16.1
Section 5—Limitation periods 2 years
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5. Following the expiration of 2 years
after the date on which the right to do so arose, a person shall not bring an
action
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(a) for damages in respect of injury to a person or property,
including economic loss arising from the injury whether based on contract,
tort or statutory duty;
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(b) for damages in respect of injury to person or property including
economic loss arising from negligent representation and professional
negligence whether based on contract, tort or statutory duty;
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(c) for trespass to property not included in paragraph (a);
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(d) for defamation other than defamation referred to in section 17
of the Defamation Act;
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(e) for false imprisonment;
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(f) for malicious prosecution;
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(g) for conspiracy to commit a wrong referred to in paragraphs (a)
to (e);
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(h) which is a civil action, to recover a fine or other penalty
and to recover a fine or penalty imposed by a court or law;
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(i) under the Fatal Accidents Act; or
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(j) under the Privacy
Act.
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