Date: 20161007
Docket: ITA-11705-15
ETA-7495-15
Citation:
2016 FC 1126
St. John’s, Newfoundland and Labrador, October 7, 2016
PRESENT: The
Honourable Madam Justice Heneghan
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Docket:
ITA-11705-15
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BETWEEN:
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IN THE MATTER OF THE INCOME TAX ACT,
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and
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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,
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AGAINST:
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DONNA MARIE NOBLE
148 Pownal Road RR 26
Mount Mellick, Prince Edward Island
C1B 3S3
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Docket: ETA-7495-15
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AND BETWEEN:
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In the matter
of the Excise Tax Act, R.S.C. 1985, c. E-15
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and
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In the matter of an assessment or assessments by the Minister of
National Revenue under the Excise Tax Act, against:
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DONNA MARIE NOBLE
148 Pownal Road RR 26
Mount Mellick, Prince Edward Island
C1B
3S3
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REASONS FOR ORDER
[1]
These Reasons are issued pursuant to Orders that
were issued on August 10, 2016.
[2]
By Notices of Motion dated February 3,
2016, Her Majesty the Queen, representing the Minister of National Revenue, sought
an order pursuant to section 56 of the Federal Courts Act,
R.S.C., 1985, c. F-7 (the “Federal Courts Act”), Rule 423 of the Federal
Courts Rules, S.O.R./98-106, (the “Rules”) and section 43 of the Land
Titles Act, S.N. B. 1981, c. L-1.1 (the “Land Titles Act”) that the
memorial of judgment registered by the Canada Revenue Agency (the “CRA”)
against the interest of Donna Marie Noble (the “Respondent-Judgment Debtor”) in
certain real property situated in New Brunswick, shall continue to bind the interest
of the Respondent until the expiry of the registration of the memorial of
judgment. The Minister sought these Orders, notwithstanding the Affidavits of Response
filed by the Respondent with the Registrar of Land Titles for the province of
New Brunswick.
[3]
The Notices of Motion were filed in
causes ITA-11705-15 and ETA-7495-15 in respect of debts arising pursuant to the
Income Tax Act, R.S.C., 1985., c. 1 (5th Supp.) (the “ITA”) and
the Excise Tax Act, R.S.C., 1985, c. E-15 (the “ETA”), respectively.
[4]
Details about the assessment of those debts and
the issuance of certificates, pursuant to the relevant legislation, are set out
in the affidavit of Heather Smith, Resource Officer/ Complex Case Officer with
the CRA.
[5]
Ms. Smith outlined the tax litigation history relative
to the subject lands, assessments, and certificates issued against David
Stanley Noble, and Glenn Royce Marney, as well as previous steps taken by the
CRA pursuant to the Land Titles Act.
[6]
In her affidavit, Ms. Smith referred to certain
orders issued by the Federal Court respecting the continued registration of
judgments under the Land Titles Act respecting the five parcels of land
referenced in the present Notice of Motion. She briefly addressed the history
of tax litigation arising in relation to assessments made pursuant to section
325 of the ETA and section 160 of the ITA. Ultimately, the appeals were
dismissed by the Federal Court of Appeal. An application for leave to appeal to
the Supreme Court of Canada from that judgment was unsuccessful.
[7]
In my opinion, it is unnecessary to go into much
detail about the various procedural steps taken under the ITA and the ETA.
There is one issue arising in this present motion and that is whether the
Minister’s motion for an order, to continue the registration of the memorials,
was made in a timely manner, in accordance with the relevant legislation.
[8]
The Minister brought his motion pursuant to
section 43 of the Land Titles Act. Subsection 43 (4) is relevant and provides
as follows:
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A memorial of
judgment ceases to be registered upon the expiration of thirty days from the
giving of the notice pursuant to subsection (3) unless, within that time, the
judgment creditor files with the registrar who gave the notice an order of
the court extending the period of registration of the memorial of judgment
and in such case the memorial of judgment remains registered for the period
determined by the order.
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L’enregistrement
d’un extrait de jugement prend fin à l’expiration de trente jours de l’avis
donné en vertu du paragraphe (3) à moins que, dans l’intervalle, le créancier
sur jugement ne dépose auprès du registrateur qui a donné l’avis une
ordonnance de la cour qui prolonge la période d’enregistrement de l’extrait
de jugement, auquel cas ce dernier demeure enregistré pour la période fixée
dans l’ordonnance.
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[9]
The Registrar of Land Titles for New Brunswick
issued a “Notice of Registration of Memorial of Judgment”, dated November 20,
2015, to the Respondent-Judgment Debtor, relative to each of five parcels of
land identified as follows: 60170560, 60157716, 60170578, 60031408, and 60142254.
[10]
The operative part of the Notices provides as
follows:
TAKE NOTICE that a memorial of judgment, a
copy of which is attached hereto, has been registered against the specified
parcel.
AND TAKE NOTICE that the registered owner of
any person claiming an interest in the parcel is entitled to request in writing
that I give the judgment creditor a notice that the judgment shall cease to be
registered upon the expiration of 30 days from the giving of the notice unless
within that time the judgement creditor files with me a court order extending
the registration period.
AND FURTHER TAKE NOTICE that such a request
must be accompanied by an affidavit of some person having knowledge of the
facts to the affect that
(a) the registered owner of the interest
against which the judgment has been registered
(i) is not the
judgment debtor, or
(ii) holds the
land as a trustee; or
(b) the judgment debt
(i) is satisfied,
or
(ii) is not
enforceable for the reasons specified in the affidavit.
[11]
The Respondent-Judgment Debtor responded with a Form
35.1 statement, pursuant to the Land Titles Act. She stated that the judgment “is not enforceable” and set out her grounds for that
position.
[12]
Subsequently, by a “Notice to Judgment Creditor”,
in Form 36 as provided by the Land Titles Act, the Registrar of Land Titles
gave the following Notice to the Judgment Creditor:
TAKE NOTICE that
the registered owner has requested, for the reasons stated in the affidavit
attached hereto, that I notify the judgment creditor that the memorial of
judgment registered against the specified parcel shall cease to be registered
upon the expiration of the 30 days from the giving of this notice unless within
that time the judgment creditor files with me a court order extending the
period of registration.
[13]
According to the affidavit of Ms. Smith, at
paragraph 19, the CRA received the Form 36 Notice on January 6, 2016.
[14]
Subsection 43 (4) of the Land Titles Act
provides as follows:
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A memorial of
judgment ceases to be registered upon the expiration of thirty days from the
giving of the notice pursuant to subsection (3) unless, within that time, the
judgment creditor files with the registrar who gave the notice an order of
the court extending the period of registration of the memorial of judgment
and in such case the memorial of judgment remains registered for the period
determined by the order.
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L’enregistrement
d’un extrait de jugement prend fin à l’expiration de trente jours de l’avis
donné en vertu du paragraphe (3) à moins que, dans l’intervalle, le créancier
sur jugement ne dépose auprès du registrateur qui a donné l’avis une
ordonnance de la cour qui prolonge la période d’enregistrement de l’extrait
de jugement, auquel cas ce dernier demeure enregistré pour la période fixée
dans l’ordonnance.
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[15]
At the commencement of the hearing, a question
was raised as to the timeliness of the Minister’s motion since the motion was
argued after the 30 day period referred to in subsection 43 (4) above.
[16]
Counsel for the Minister advised the Court that
he had been told by the Registrar of Land Titles for New Brunswick that the status
quo would be maintained until delivery of an order by the Court.
[17]
No affidavit evidence was submitted in support
of the statements made by the Registrar of Land Titles.
[18]
No request was made to seek leave to file an
affidavit after the hearing.
[19]
In these circumstances, there is no evidence
before the Court about any “practice” in New Brunswick concerning the continued
registration of a memorial of judgment, when the Judgment Creditor has failed
to obtain a court order within the time specified in the relevant statute, that
is subsection 43 (4) of the Land Titles Act.
[20]
The dispositive question is whether the Minister
brought his motion in accordance with the relevant legislation, that is the
Land Titles Act. That legislation applies in light of section 56 of the Federal
Courts Act. Subsection 56 (1) is relevant and provides as follows:
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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.
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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.
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[21]
The Form 36 Notice was received by the Judgment
Creditor on January 6, 2016. There is no dispute that the date of receipt of
the Notice is the date from which the 30 day period is to be calculated; see
the decision in St. John’s (City) v. F.W. Woolworth Co. (1981), 130
D.L.R. (3d) 171 (Nfld. C.A.).
[22]
According to the Interpretation Act, R.S.N.B.
1973, c I-13, subsection 22 (k), time periods are calculated as follows:
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where a period of
time dating from a specified day, act, or event is prescribed or allowed for
any purpose, the time shall be reckoned exclusively of such day or of the day
of such act or event.
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lorsqu’un délai
est fixé ou accordé pour un objet quelconque et qu’il est calculé à compter
d’un jour, acte ou événement particulier, le délai ne comprend pas ce jour ou
celui de cet acte ou de cet événement.
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[23]
The Minister filed his Notice of Motion on February
4, 2016. The motion was argued on February 10, 2016. No order was issued within
30 days of receipt of the Form 36 Notice by the Judgment Creditor.
[24]
In argument, the Minister submitted that the
Court could address the issue of timeliness by exercising its discretion to
apply the principle of nunc pro tunc.
[25]
This doctrine relates to the inherent
jurisdiction to issue orders nunc pro tunc. In Canadian Imperial Bank
of Commerce v. Green, [2015] 3 S.C.R. 801 at paragraph 85, the Supreme
Court of Canada said the following:
The courts have inherent jurisdiction to
issue orders nunc pro tunc. In common parlance, it would simply be said
that a court has the power to backdate its orders. This power is implied by
rule 59.01 of the Rules of Civil Procedure: “An order is effective from
the date on which it is made, unless it provides otherwise.” [emphasis
in original]
[26]
Rule 392 (2) of the Rules provides as follows:
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(2) Unless it
provides otherwise, an order is effective from the time that it is endorsed
in writing and signed by the presiding judge or prothonotary or, in the case
of an order given orally from the bench in circumstances that render it
impracticable to endorse a written copy of the order, at the time it is made.
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(2) Sauf
disposition contraire de l’ordonnance, celle-ci prend effet au moment où elle
est consignée et signée par le juge ou le protonotaire qui préside ou, dans
le cas d’une ordonnance rendue oralement en audience publique dans des
circonstances telles qu’il est en pratique impossible de la consigner, au
moment où elle est rendue.
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[27]
Courts have an inherent jurisdiction to issue
orders nunc pro tunc; see Canadian Imperial Bank of Commerce, supra
paragraph 85. This jurisdiction is related to the maxim actus curiae neminem
gravabit, meaning that an act of the Court shall prejudice no one; see Canadian
Imperial Bank of Commerce, supra at paragraph 86.
[28]
In determining whether to exercise their
inherent jurisdiction to make an order nunc pro tunc, courts should
consider the following non-exhaustive factors as outlined in Canadian
Imperial Bank of Commerce at paragraph 90:
whether the opposing party will be prejudiced by the order;
whether the order would have been granted
had it been sought at the appropriate time;
whether the irregularity was not
intentional;
whether the order will effectively achieve
the relief sought or cure the irregularity;
whether the delay has been caused by an act
of the court and the order would facilitate justice.
[29]
Courts should not grant nunc pro tunc
orders where to do so would undermine the purpose of the legislation at issue; see
Canadian Imperial Bank of Commerce, supra at paragraphs 93-94. Where the
time has expired, a Court cannot give itself jurisdiction by antedating its
judgment and ordering it to be entered nunc pro tunc; see Re
Trecothic Marsh, [1905] 37 S.C.R. 79.
[30]
In my opinion, the issuance of an order nunc
pro tunc in this case would indeed undermine the purpose of the legislation
at issue, that is the Land Titles Act of New Brunswick.
[31]
The Motions were filed too late to meet the
requirements of subsection 43 (4) of the Land Titles Act and for that reason, the
Motions were dismissed with costs to the Respondent-Judgment Debtor by Orders
issued on August 10, 2016.
[32]
These Reasons shall be filed in cause number
ITA-11705-15 and in cause number ETA-7495-15.
"E. Heneghan"
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