Dube,
J:—This
application
is
for
an
order
staying
the
execution
of
all
the
judgments
or
orders
granted
to
the
Department
of
National
Revenue
against
the
petitioner.
On
January
20,
1982,
the
Minister
of
National
Revenue
issued
notices
of
assessment
for
the
taxation
years
1978,
1979,
1980
whereby
income
taxes,
penalties
and
interest
were
levied
against
the
petitioner.
On
February
9,
1982,
the
petitioner
challenged
the
validity
of
the
said
assessments
by
notice
of
objection.
In
his
affidavit
to
the
instant
motion
the
petitioner
says
that
he
was
a
resident
of
the
Island
of
Mauritius
and
not
a
resident
of
Canada
up
to
July
1979,
that
he
did
not
earn
any
taxable
income
during
that
year,
and
therefore
that
no
income
tax
returns
were
filed
by
him
for
1978
and
1979.
He
also
claims
that
the
above
assessments
were
considered
by
the
Department
of
National
Revenue
as
“protective”
assessments
which
were
purely
arbitrary
and
without
any
foundation
whatsoever.
Pursuant
to
these
assessments
a
certificate
was
filed
by
the
Minister
in
the
Federal
Court,
a
writ
of
fieri
facias
was
issued,
provisional
orders
of
garnishment
were
served
on
the
petitioner,
safety
deposit
boxes
were
seized.
His
immoveable
properties
at
Lachute,
PQ
were
also
seized.
The
above-
mentioned
provisional
charges
were
made
absolute,
various
third
party
demands
were
made
resulting
in
the
seizure
of
various
personal
assets
owned
by
the
petitioner.
The
petitioner
claims
that
the
realization
and
sale
of
those
assets,
at
a
time
when
the
dispute
between
the
petitioner
and
the
Minister
is
not
settled,
would
cause
him
“serious
and
irreparable
prejudice”.
The
file
shows
that
on
January
20,
1982
the
Minister
caused
to
be
filed
a
certificate
to
the
effect
that
there
remains
unpaid
by
the
petitioner
the
sum
of
$28,085.85
plus
interest.
Subsection
223(2)
of
the
Income
Tax
Act
provides
that
such
a
certificate,
registered
in
the
Federal
Court
of
Canada,
has
the
same
force
and
effect,
and
all
proceedings
that
may
be
taken
thereon,
as
if
the
certificate
were
a
judgment
obtained
in
the
said
Court.
Rule
1909
of
the
Federal
Court
provides
that
a
party
against
whom
a
judgment
has
been
given
may
apply
to
the
Court
for
a
stay
of
execution
of
the
judgment
and
the
Court
may
grant
such
relief.
It
has
already
been
ruled
by
the
Federal
Court
of
Appeal
that
the
mere
challenging
of
the
validity
of
assessments
by
a
notice
of
objection
is
not
sufficient
ground
to
stay
the
execution
of
a
subsection
223(2)
income
tax
certificate.
In
The
Attorney-General
of
Canada
v
Louis-Albert
Raymond,
[1980]
CTC
520;
80
DTC
6383,
Pratte,
J
on
behalf
of
the
Court
decided
the
matter
in
these
words:
Il
nous
paraît
clair
que
ce
jugement
doit
être
infirmé.
Le
fait
qu’un
contribuable
puisse
encore
faire
opposition
à
une
cotisation
n’affecte
en
aucune
façon
l’obligation
qu'a
le
contribuable
de
payer
l’impôt
qu’on
lui
réclame
ni
le
droit
du
ministre
du
Revenu
national
de
prendre
les
mesures
d’exécution
qu'il
juge
approproiées
ni,
enfin,
le
droit
du
ministre
d’obtenir
le
paiement
des
impôts
dont
il
a
fixé
le
montant.
As
earlier
mentioned,
the
petitioner
says
that
the
realization
and
sale
of
the
assets
“would
cause
petitioner
serious
and
irreparable
preudice”.
There
is
no
further
evidence
as
to
what
serious
or
irreparable
prejudice
would
result
from
such
a
sale.
On
the
other
hand,
in
his
affidavit
in
reply,
Paul
Rail,
an
official
of
the
Department
of
National
Revenue,
states
that
the
Department
may
be
prejudiced
if
the
properties
were
not
sold.
He
further
elaborates
and
points
out
that
the
municipal
evaluation
of
the
properties
is
of
$117,000
and
that
there
is
a
first
mortgage
thereon
in
the
amount
of
$76,000.
He
says
that
the
properties
could
be
sold
by
the
municipality
for
unpaid
taxes.
Also,
that
the
Department
would
be
left
out
should
the
property
be
uninsured
and
destroyed
by
fire.
Mr
Rail
goes
on
to
say
that
the
risk
of
prejudice
to
the
Department
would
be
removed
if
proof
of
a
full
fire
insurance
value,
proof
of
mortgage
payments
and
proof
of
payment
of
taxes
were
provided
to
the
Department.
Paragraph
10
of
his
affidavit
reads
as
follows:
10.
En
conséquence
de
ce
qu’allégué
au
paragraphe
précédent,
il
faudrait
à
tout
le
moins,
pour
qu'il
puisse
être
interdit
au
Ministère
du
Revenu
National,
Impôt,
de
procéder
à
la
vente
de
la
propriété
immobilière
sans
qu'il
en
subisse
indûment
préjudice,
que:
—
preuve
d’assurance
pour
la
valeur
réelle
de
la
propriété
soit
fournie,
avec
cession
de
l’indemnité
d’assurance
au
Ministère
sous
réserve
des
droits
que
peut
avoir
le
premier
créancier
hypothécaire;
—
preuve
de
paiement
des
versements
hypothécaires
à
échéances
soit
fournie
au
Ministère;
—
preuve
de
paiement
des
taxes
à
échéance
soit
fournie
au
Ministère;
Under
the
circumstances,
the
stay
of
proceedings
will
be
granted
with
reference
to
the
real
estate
property
of
the
petitioner,
until
the
objection
to
assessments
has
been
solved,
provided
the
petitioner
produces
the
abovedescribed
guarantees
within
20
days
of
this
order.
As
to
the
seizure
of
personal
property
and
garnishees
of
moneys
owing
to
the
petitioner,
they
will
not
be
stayed
as
the
proceeds
therefrom
will
go
against
the
balance
of
income
tax
due
and
owing
by
the
petitioner
and
final
adjustments
will
be
made
in
due
course.
There
is
no
evidence
that
those
executory
measures
will
cause
the
petitioner
“irreparable
prejudice”.
ORDER
The
motion
is
granted
in
part.
The
sale
of
petitioner’s
real
property
will
be
stayed
until
his
objections
to
the
1978,
1979
and
1980
assessments
have
been
finalized,
provided
satisfactory
municipal
tax,
mortgage
payments
and
insurance
guarantees
are
provided
within
20
days
of
this
order.
The
execution
of
all
other
judgments
and
orders
granted
to
the
respondent
against
the
petitioner
will
proceed.
Each
party
will
bear
its
own
costs.
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