Date: 20071022
Dockets: ITA-12276-02
ITA-8992-04
ITA-13404-04
ITA-13163-04
GST-4304-04
Citation: 2007 FC 1085
Ottawa, Ontario,
October 22, 2007
PRESENT: The Honourable Madam Justice Heneghan
In
the matter of the Income Tax Act,
and
In
the matter of an assessment or assessments by the Minister of National Revenue
under one or more of the Income Tax Act, Canada Pension Plan, Employment
Insurance Act, against
HUMBY
ENTERPRISES LIMITED
Box
342, 325 Garrett Drive, Gander, NL A1V 1W7
(Court
File No. ITA-12276-02)
A
& E PRECISION FABRICATING AND MACHINE SHOP INC.
Post
Office Box
342,
Gander, Newfoundland and Labrador, A1V 1W7
(Court
File No. ITA-8992-04)
A
& E PRECISION FABRICATING AND MACHINE SHOP INC.
Post
Office Box
342, Gander, Newfoundland and Labrador, A1V 1W7
(Court
File No. ITA-1340404)
CENTRAL
SPRINGS LIMITED
Post
Office Box 342325
Garrett Drive,
Gander, Newfoundland and Labrador, A1V 1W7
(Court
File No. ITA-13163-04)
In
the matter of the Excise Tax Act, R.S.C., 1985, c. E-15,
and
In
the matter of an assessment or assessments by the Minister of National Revenue
under the Excise Tax Act, against:
A
& E PRECISION FABRICATING AND MACHINE SHOP INC.
Post
Office Box
342, Gander, Newfoundland and Labrador, A1V 1W7
(Court
File No. GST-4304-04)
REASONS FOR ORDER AND ORDER
I. Introduction
[1]
In cause
number ITA-12276-02, the Canada Revenue Agency (the “CRA” or the “Applicant”)
certified a debt owing by Humby Enterprises Limited (“Humby”) pursuant to the Income
Tax Act, R.S.C., 1985, c. 1 (5th Supp.) (the “Income Tax Act”) in the
amount of $98,805.47. The certificate was filed on November 21, 2002.
[2]
On
November 21, 2002, the Applicant filed a request for the issuance of a Writ of
Seizure and Sale pursuant to the Federal
Courts Rules, SOR-98/206 (the “Rules”). On November 21, 2002, a Writ of
Seizure and Sale was issued by the Registry of this Court directed to the
Sheriff of Newfoundland and Labrador.
[3]
On January
5, 2007, the Applicant filed a Notice of Motion seeking an order that the
Sheriff continue the seizure of property seized pursuant to the Writ of Seizure
and Sale and further, that the Sheriff proceed to sell the seized property of
Humby.
[4]
In cause
number GST-4304-04, the Applicant certified a debt owing by A & E Precision
Fabricating and Machine Shop Inc. (“Precision”) pursuant to the Excise Tax Act,
R.S., 1985, c. E-15 (the “Excise Tax Act”) in the amount of $16,668.42. The certificate
was filed on August 12, 2004.
[5]
On the
same day, that is August 12, 2002, a request was filed for the issuance of a
Writ of Seizure and Sale pursuant to the Rules. On
August 16, 2002, a Writ of Seizure and Sale was issued by the Registry of this Court
directed to the Sheriff of Newfoundland and Labrador.
[6]
On
February 5, 2007, the Applicant filed a Notice of Motion seeking an order that
the Sheriff continue the seizure of the seized property and to proceed to sell
the said property of Precision.
[7]
In cause
number ITA-8892-04, the Applicant certified a debt owing by Precision pursuant
to the Income Tax Act in the amount of $2,046.14. The certificate was
filed on August 16, 2004.
[8]
On August
16, 2004, a Writ of Seizure and Sale
was issued by the Registry of this Court pursuant to the Rules. It was directed
to the Sheriff of Newfoundland and Labrador.
[9]
In cause
number ITA-13163-04, the Applicant certified a debt owed by Central Springs
Limited (“Central”) pursuant to the Income Tax Act in the amount of $73,664.16.
The certificate was filed with the Court on December 17, 2004. On February 17,
2004, a Writ of Seizure and Sale was issued by the Registry of this Court
directed to the Sheriff of Newfoundland and Labrador.
[10]
On
February 5, 2007, a Notice of Motion was filed by the Applicant, seeking an
Order that the Sheriff continue the seizure of the seized property and further,
that he proceed to sell the seized property of Central.
[11]
In cause
number ITA-13404-04, the Applicant certified a debt owing by Precision pursuant
to the Income Tax Act in the amount of $62,441.91. The certificate was filed
with this Court on December 29, 2004.
[12]
On
December 29, 2004, a Writ of Seizure and Sale was issued by this Court, directed to
the Sheriff of Newfoundland and Labrador
in respect of the said debt of Precision. On January 5, 2007, the Applicant
filed a Notice of Motion seeking an Order that the Sheriff continue in
possession of the seized property and further, that he proceed to sell the
seized property of Precision.
[13]
The
motions were originally set down for hearing on February 23, 2007. By Direction
issued by Prothonotary Morneau on March 3, 2007, the hearing was re-scheduled
for April 18, 2007. The Prothonotary characterized the remedies sought by the Applicant
as being in “the nature
of an injunction and mandamus against a provincial board”
and said that such remedies were matters to be adjudicated before a Judge, not
a Prothonotary, of this Court.
[14]
Humby,
Precision, and Central are jointly referred to as the “Judgment Debtors”.
II. The Evidence
[15]
In support
of the motions, the Applicant filed the affidavit of Mr. Jerry Peddle, Collection
Enforcement Officer for the CRA, located in St. John’s, Newfoundland and Labrador. In his
affidavit, Mr. Peddle recounted the history of the proceedings instituted under
the Income Tax Act and the Excise Tax Act against Precision, Humby and Central.
He also deposed to the facts concerning instructions given to the Sheriff to
seize property pursuant to the Writs of Seizure and Sale that had been issued by this Court
relative to the Certificates that had been filed. These instructions were given
by a letter dated January 17, 2005 from the CRA, as representative of the
judgment creditor, that is Her Majesty in Right of Canada as represented by the
Minister of National Revenue. Those instructions were issued pursuant to the Judgment
Enforcement Act, S.N.L. 1996 c. J-1.1 (the “JEA”) and the Federal Courts
Act, R.S.C. 1985, c. F-7 (the “Federal Courts Act”).
[16]
Mr. Peddle
stated that after goods were seized, the Sheriff returned some of those goods
to those parties who had filed effective Notices of Claim, pursuant to the JEA.
[17]
The
Sheriff then proceeded to obtain appraisals of the property that remained seized
from the Judgment Debtors. One appraisal was provided by Rideout Tool and
Machine Inc. and estimated the value of certain goods to be approximately
$77,300.00. This written appraisal was received by the Sheriff’s Office on or
about May 4, 2005.
[18]
On May 17,
2005, the Sheriff’s office received correspondence from Western Star Trails
Newfoundland Limited, containing an estimate of goods seized from one of the Judgment
Debtors. These goods were assessed at approximately $85,800.00.
[19]
In July
2005, the Applicant instructed the Sheriff to sell the seized property. The
sale was advertised in the local newspaper “The Telegram” and the date of the
sale was September 9, 2005. However, on September 1, 2005, the CRA instructed
the Sheriff to postpone the sale. On March 6, 2006, the CRA instructed the
Sheriff to proceed with the sale.
[20]
Again, the
Sheriff advertised the sale by publishing a “Notice of Sheriff’s Sale” in “The Evening Telegram”. The sale was
scheduled to be held on June 28, 2006.
[21]
The
Sheriff’s Office designated the chattels seized from the Judgment Debtors into
54 lots. Following a further auction held on June 28, 2006, a number of the
seized items were sold. The Sheriff declined to sell the remaining goods on the
grounds that the price offered was less than the “appraised” value of the
property.
[22]
On June
28, 2006, a bid in the amount of $13,055.00 was made relative to the remaining
property. On July 12, 2006, a further bid was made in the amount of $19,600.00
plus HST for the remaining property.
[23]
On January
23, 2007, the Office of the High Sheriff of Newfoundland and Labrador notified the CRA that the
Sheriff will be releasing the remaining property identified in Schedule “A”
attached to the letter of January 23, 2007.
[24]
The
Sheriff sent further correspondence to the CRA on January 25, 2007 relative to
his reasons for releasing the remaining property.
[25]
The
Judgment Debtors filed two affidavits of Mr. Eli Humby, the President and owner
of Humby, Precision and Central. Mr. Humby takes issue with the process by
which the CRA issued assessments. Mr. Humby deposed to his understanding of the
circumstances surrounding the assessments made by the CRA under the Income Tax
Act. He also provided information about an application that he made to the Tax
Court of Canada concerning the validity of the assessments upon which the
actions of the Minister are founded.
[26]
He also
referred to proceedings that had been undertaken in the Supreme Court of
Newfoundland and Labrador and an alleged undertaking by the CRA to defer
collection proceedings pending the outcome of that litigation.
[27]
Mr. John
MacDonald, the High Sheriff of Newfoundland and Labrador filed an affidavit in
which he outlined the steps that had been taken by the Office of the High
Sheriff following receipt of the Writs of Seizure and Sale on behalf of the CRA,
including the various instructions to proceed with a sale of seized goods, to
defer the sale, and then to proceed. In his affidavit, Mr. MacDonald also
refers to his decision, set out in his letter of January 23, 2007, to return
the remaining seized goods to the Judgment Debtors. This decision was repeated
in the letter dated January 27, 2007 from the Office of the High Sheriff.
[28]
The
Sheriff also referred to an application that he brought before the Supreme
Court of Newfoundland and Labrador, Trial Division, seeking an
order pursuant to the JEA for the sale of the remaining property for the best
obtainable price. That application was adjourned sine die on December
18, 2006.
III. Submissions
[29]
The
Applicant argues that the Sheriff is subject to a duty to act in a
“commercially reasonable manner” in discharging his obligations pursuant to the
JEA. In this regard, the Applicant relies on subsection 3(5)(f) of the JEA. The
Applicant submits that the meaning of the words “commercially reasonable
manner” can be interpreted by analogy with the interpretation of the Personal
Property Security Act, S.N.L. 1998 c. P-7.1, the Bankruptcy and
Insolvency Act, R.S., 1985, c. B-3 and the Canada Business Corporations
Act, R.S.C. c. C-44.
[30]
The
Applicant further argues that the Sheriff is wrong to base his decision not to
proceed to sale of the remaining property on the grounds that the last offer
does not reflect the appraised value of the goods. In this regard, the
Applicant submits that the appraisal of the goods obtained by the Sheriff is
not reflective of the value of the goods and that the value of those goods has
been established by the market, that is by the amount offered by the last
prospective buyer.
[31]
The
Applicant argues that the JEA does not require the Sheriff to obtain an
appraisal. It submits that the Sheriff should be guided by the principle of
acting in a “commercially reasonable manner”, as discussed in National Bank
of Canada v. Marguis Furs Ltd., [1987] O.J. No. 1220.
[32]
The
Applicant filed further submissions shortly before the hearing of these
motions. In these submissions, the Applicant said that it was seeking judicial review
of the Sheriff’s decision to return the remaining property. The Applicant
purports to rely on subsection 80(3) of the JEA that allows a creditor affected
by a decision to return goods to “apply to the court”.
[33]
The
Respondents argue that this Court should not exercise jurisdiction since the
Applicant has already commenced proceedings in the Supreme Court of
Newfoundland and Labrador relative to the claims here in issue. Further, they
submit that the Applicant did not act fairly in giving instructions to the
Sheriff relative to the enforcements of the judgments obtained by the
Applicant.
[34]
The
Sheriff made no written representations with respect to his affidavit or his
position. He was represented by counsel at the hearing of the motion but no
submissions were made on his behalf.
IV. Discussion and Disposition
[35]
The
Applicant seeks relief in the nature of an injunction that is requiring the
Sheriff to prohibit the return of the remaining goods to the Judgment Debtors,
and in the nature of an order of mandamus, that is an order compelling
the Sheriff to sell the remaining goods.
[36]
For the
purposes of this proceeding, the Sheriff is acting as an officer of the Federal
Court of Canada. In that regard, I refer to subsection 13(2) of the Federal
Courts Act which provides as follows:
|
13(2)
If no sheriff is appointed under subsection (1) for a court for a
geographical area, the sheriff and deputy sheriffs of the county or other
judicial division or part of the county within that geographical area who are
appointed under provincial law are ex officio sheriff and deputy sheriffs,
respectively, of the Federal Court of Appeal and of the Federal Court.
|
13(2)
À défaut de nomination d'un shérif sous le régime du paragraphe (1) pour un
secteur géographique donné, les titulaires, nommés sous le régime de lois
provinciales, des charges de shérif et shérifs adjoints pour le comté ou tout
ou partie d'une autre circonscription judiciaire de ce même secteur sont de
droit respectivement shérif et shérifs adjoints de la Cour d'appel fédérale
ou de la Cour fédérale, selon le cas.
|
[37]
Pursuant
to section 56 of the Federal Courts Act, judgments of the Court can be enforced
in a manner analogous to the enforcement of judgments in the province where
execution of the judgment is sought. Subsection 56(1) and (3) of the Federal
Courts Act provide as follows:
|
56.
(1) In addition to any writs of execution or other process that are
prescribed by the Rules for enforcement of its judgments or orders, the
Federal Court of Appeal or the Federal Court may issue process against the
person or the property of any party, of the same tenor and effect as those
that may be issued out of any of the superior courts of the province in which
a judgment or an order is to be executed, and if, by the law of that province,
an order of a judge is required for the issue of a process, a judge of that
court may make a similar order with respect to like process to issue out of
that court.
56(3)
All writs of execution or other process against property, whether prescribed
by the Rules or authorized by subsection (1), shall
(
a) unless otherwise provided by the Rules, be executed, with respect to the
property liable to execution and the mode of seizure and sale, as nearly as
possible in the same manner as similar writs or process that are issued out
of the superior courts of the province in which the property to be seized is
situated are, by the law of that province, required to be executed; and
(
b) bind property in the same manner as similar writs or process issued by the
provincial superior courts, and the rights of purchasers under the writs or
process are the same as those of purchasers under those similar writs or
process.
|
56.
(1) Outre les brefs de saisie-exécution ou autres moyens de contrainte
prescrits par les règles pour l'exécution de ses jugements ou ordonnances, la
Cour d'appel fédérale ou la Cour fédérale peut délivrer des moyens de
contrainte visant la personne ou les biens d'une partie et ayant la même
teneur et le même effet que ceux émanant d'une cour supérieure de la province
dans laquelle le jugement ou l'ordonnance doivent être exécutés. Si, selon le
droit de la province, le moyen de contrainte que doit délivrer la Cour
d'appel fédérale ou la Cour fédérale nécessite l'ordonnance d'un juge, un de
ses juges peut rendre une telle ordonnance.
56(3)
Sauf disposition contraire des règles, les brefs de saisie-exécution ou
autres moyens de contrainte visant des biens — qu’ils soient prescrits par
les règles ou autorisés aux termes du paragraphe (1) — sont, quant aux
catégories de biens saisissables et au mode de saisie et de vente, exécutés
autant que possible de la manière fixée, pour des moyens de contrainte
semblables émanant d’une cour supérieure provinciale, par le droit de la
province où sont situés les biens à saisir. Ils ont les mêmes effets que ces
derniers, quant aux biens en question et aux droits des adjudicataires.
|
[38]
In Newfoundland and Labrador, the JEA governs
the enforcement of judgments. Paragraph 2(bb) defines “judgment” as follows:
(bb) “judgment” includes an order,
decree, certificate, duty or right that may be enforced as or in the same
manner as a judgment of the court including a judgment made under the Small
Claims Act and the Federal Court Act, but does not include a support order registered
with the director under the Support Orders Enforcement Act, 2006, except as
provided in section 3;
[39]
The
Applicant relies on paragraph 3(5)(f) of the JEA which provides as follows:
3.
…
(5) The following applies to enforcement
proceedings:
..
(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;
..
[40]
Section 80
of the JEA provides as follows:
80. (1) Where personal property is
seized, it remains under seizure until
(a) sold or otherwise disposed of under
this Act; or
(b) released from seizure by the sheriff.
(2) Where personal property has been
seized and
(a) the sheriff has been unable to serve
the debtor as required by subsection 75(2); or
(b) the personal property has been seized
for not fewer than 60 days and, in the opinion of the sheriff, it is
appropriate that the property be released from seizure,
the sheriff shall give notice of the
proposed release to every creditor who, at the time that the notice is given,
has a related notice of judgment of his or her intention to release the
property from seizure.
(3) A creditor served with a notice under
subsection (2) may apply to the court within 15 days of receiving that notice for
a continuance of the seizure on the terms and conditions that the court may
impose.
(4) Property shall not be released from
seizure or returned to the debtor under subsection (2) until
(a) the period for an application to the
court has elapsed with no application being made; or
(b) the application is dismissed.
[41]
The
parties did not address the status of the JEA as a statute affecting
substantive rights or as a statute regulating procedures. In light of
subsection 3(1) of the JEA, I would characterize the JEA
as legislation addressing the procedures for judgment
enforcement. Subsection 3(1) provides as follows:
3(1) All money judgments shall be
enforced in accordance with this Act.
[42]
According
to the decision in Maple Leaf Mills Limited. v. “Baffin Bay” (The), [1973] F.C. 1097 (T.D.),
subsection 56(3) sets out the scheme for enforcement of judgments of the
Federal Court. The status of a provincial sheriff as an ex officio
sheriff of the Federal Court was addressed by the Federal Court of Appeal in Forest
v. Hancor Inc., [1996] 1 F.C. 725 (C.A.); leave to S.C.C. refused (1996),
203 N.R. 398n (S.C.C.) where the Court held that judgments can be enforced
pursuant to the mechanism provided for in provincial legislation governing the
enforcement of judgments.
[43]
In Chartier
v. Chartier et al. (1989), 21 F.T.R. 76, the Federal Court commented on the
meaning of sub-section 56(1) and said the following at paragraph 9:
With regard to judgment creditor's second
argument that s. 56(1) of the Federal Court Act and the Weniuk
case can be used to permit the Court to resort by analogy to provincial
enforcement mechanisms and make an order binding on the Crown in right of
Ontario; as Mr. Justice Muldoon said in Weniuk, the analogy may only
occur by way of adaptation of a provincial superior court process. The Federal
Court may not adopt provincial processes. In addition, s. 56(1) deals
with procedural provisions; the combining of provincial superior court
processes with those of the Federal Court would not be sufficient to confer
express jurisdiction over the Crown in right of Ontario as a matter of substantive law. The
jurisdiction of the Federal Court is entirely statutory and as such the Court
may only entertain those claims against the Crown that have been provided for
by statute law [emphasis in original].
[44]
This is
the background against which the Applicant’s motions for injunctive and
mandatory relief are to be assessed. The test for obtaining injunctive relief
is set out in RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. An
applicant must show a serious issue for trial, irreparable harm and that the
balance of convenience lies in his favour. All three elements must be
established in order to obtain this relief.
[45]
I am not
persuaded that the Applicant has shown that a serious issue arises here. The
Applicant is seeking enforcement of its judgments; there is no pending trial.
[46]
Further, I
am not satisfied that the Applicant has shown that it will suffer irreparable
harm if the relief sought is denied. The judgments still exist. The Applicant
has not shown that it enjoys an absolute right to determine the manner in which
those judgments can or will be enforced. Since the Applicant has failed to
establish the first two elements of the tripartite test for the issuance of an
injunction, it is not necessary for me to address the issue of balance of
convenience.
[47]
I turn now
to the Applicant’s request for an order of mandamus.
[48]
The test
for obtaining an order of mandamus is set out in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742; affirmed
[1994] 3 S.C.R. 1100. The essential elements of the test are the existence of a
public legal duty requiring the decision maker to act; proof that performance
of the duty is owed; an absence of discretion as to whether the duty must be
performed; and proof of a demand that the duty be performed and refusal of
performance.
[49]
The first
issue to be addressed is whether the Sheriff of Newfoundland and Labrador, in his capacity as a Sheriff
of this Court, is subject to a public legal duty to sell the remaining goods of
the Respondents, as requested by the Applicant. In my opinion, he is not.
[50]
From my
reading of the relevant provisions of the JEA, the Sheriff is responsible for
the enforcement of judgments. I refer to section 5 of the JEA which provides as
follows:
5.(1) The Sheriff shall supervise the
registry and the system of enforcement of judgments under this Act.
(2) The Sheriff may designate an employee
of his or her office or another employee of the government of the province to
assist in the supervision of the judgment enforcement system under this Act and
to co-ordinate enforcement proceedings conducted under this Act.
[51]
Some
examples of the discretion available to the Sheriff with respect to the
enforcement of judgments can be found in sections 6, 8 and 9 of the JEA.
[52]
According
to section 3 of the JEA, the Sheriff is to exercise his discretion in
accordance with the criteria set out in subsection 3(5), including the
obligation to act in good faith and in a commercially reasonable manner.
[53]
The
Applicant, relying on the decisions in National Bank of Canada and Thoms
v. Louisville Sales and Service Inc., [2006] 11 W.W.R. 486 (SKQB), argues
that acting “in a commercially reasonable manner” means that the Sheriff must
accept whatever is offered and submits that the price offered is to be accepted
as the fair market value of the goods.
[54]
The
decisions relied on by the Applicant with respect to the interpretation of
“commercially reasonable manner” involved the interpretation of provincial
legislation. In my view, these decisions have limited relevance to the issues
raised in the present motions.
[55]
The obligations
to act in a “commercially reasonable manner” for the purposes of the JEA, lie
upon a creditor such as the Applicant, as well as upon the Sheriff in the
discharge of his duties. However, any duty in that regard is overtaken by the
discretion conferred upon the Sheriff by subsection 80(2) of the JEA. Pursuant
to this subsection, if the Sheriff is “of the opinion” that goods should be
returned, he can take such action. The language of paragraph 3(5)(f) does not
fetter the Sheriff ’s discretion that is granted by subsection 80(2). Rather,
the language of paragraph 3(5)(f) informs the manner in which the Sheriff shall
act.
[56]
The JEA
authorizes the Sheriff, not a creditor, to enforce judgments. A creditor may
give instructions but ultimately, the Sheriff chooses the course of action. In
the present case, he is authorized to exercise discretionary power to return
the goods. The availability of this discretion means that mandamus will
not lie to make him act otherwise.
[57]
Although
section 11 of the JEA authorizes applications to the Supreme Court of
Newfoundland and Labrador or to the Court of Appeal for that province for directions
with respect to administration of the JEA by the Sheriff, the availability of
such judicial remedies does not change the discretionary nature of the powers
conferred upon the Sheriff. However, in any event, the definition of “court” in
the JEA is specifically limited to the superior courts of Newfoundland and Labrador.
[58]
The
language of subsection 80(3) of the JEA says that a creditor “may apply to” the
Court. In the present case, the Sheriff is acting as an officer of the Federal
Court. This means that his decisions are those of a “federal board, commission
or other tribunal” as defined in subsection 2(1) of the Federal Courts Act.
[59]
Subsection
80(2) of the JEA clearly gives the Sheriff discretion over the matter of
retaining or releasing goods that have been seized. That subsection speaks of
“the opinion of the sheriff”.
[60]
The remedy
of mandamus is available to direct performance of a duty. It is not
available to direct the manner of performance of such duty. In that regard, I
refer to the decisions in Maple Lodge Farms Ltd. v. Canada, [1981] 1
F.C. 500 (Fed. C.A.); affirmed [1982] 2 S.C.R. 2
and NsC Diesel Power Inc. (Bankrupt), Re (1995), 101 F.T.R. 97.
[61]
The
Applicant argues that the Sheriff erroneously based his decision to return the
goods upon his assessment of the appraisals that were obtained by his office.
The Applicant argues that the Sheriff was under no obligation to obtain
appraisals and consequently, the Sheriff should not take those appraisals into
consideration in deciding whether to return the goods.
[62]
In my
opinion, the fact that the JEA does not specifically address the issue of
obtaining appraisals for property to be sold pursuant to a writ of seizure and
sale is irrelevant to the present motion.
[63]
The
decision of the Sheriff to obtain appraisals is not the subject of this motion.
The manner in which the Sheriff exercised his discretion, vis-à-vis appraisals
or otherwise, can only be challenged by means of an application for judicial
review pursuant to sections 18 and 18.1 of the Federal Courts Act. No such
application was taken in the present case. The fact that the Applicant filed
further written submissions in which it argued that it was seeking judicial
review of the Sheriff’s decision upon this motion does not convert this motion
into a judicial review of the Sheriff’s decision.
[64]
The
Applicant has not shown that there is a public legal duty upon the Sheriff to act,
that is to retain possession of the goods for the purpose of selling them. It
has also failed to show that it is entitled to performance of a duty. The
Sheriff is vested with a discretion to act and he did so, pursuant to
subsection 80(2) of the JEA, in deciding to return the goods. It is not
necessary to address the remaining elements of the test in Apotex.
[65]
In the
result, the Applicant’s motion for an order of mandamus is dismissed.
[66]
In their
submissions, the Respondents requested costs on a solicitor-client basis, as
well as an order for punitive damages. The criteria for making an award of
solicitor and client costs are discussed in the decision of Merck & Co.
et al v. Apotex Inc. (2002), 225 F.T.R. 285; affirmed (2003), 305 N.R. 68;
leave to appeal refused (2004), 329 N.R. 198n. I am not persuaded that an order
for solicitor and client costs is justified or appropriate in the present case
and the Respondents shall have their costs to be taxed.
[67]
The
Respondents’ request for an order for damages is likewise dismissed. The remedy
of damages is not available upon a motion. If I were to treat this motion as an
application for judicial review, damages are equally unavailable; see Ross
v. Mohawk Council of Kanesatake (2003), 232 F.T.R. 238.
[68]
These
reasons will be filed in cause number ITA-1276-02 and placed on the files in
ITA-8992-04, ITA-13404-04, ITA-13163-04 and GST-4304-04.
ORDER
The
motions are dismissed with taxed costs to the Respondents.
“E. Heneghan”
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