Pinard
J.:—This
is
an
appeal
from
an
order
of
the
prothonotary,
dated
November
23,
1994,
which
dismissed
Howard
D.
Milne’s
motion
for
a
stay
of
execution
proceedings.
The
grounds
of
the
appeal
are:
1.
The
prothonotary
erred
in
law
by
failing
to
recognize
the
mandatory
provisions
of
Federal
Court
Rule
2100.
2.
The
prothonotary
erred
in
law
by
holding
that
an
appeal
of
the
taxpayer’s
tax
account
is
a
pre-condition
to
the
application
of
Rule
2106.
3.
The
prothonotary
erred
in
law
by
holding
that
section
158
of
the
Income
Tax
Act
takes
precedence
over
Rule
2100.
4.
The
prothonotary
erred
in
fact
and
law
by
failing
to
find
that
the
circumstance
relating
to
Howard
Milne
are
special
circumstances
within
the
meaning
of
Rule
2100(9).
5.
The
prothonotary
erred
in
fact
and
law
by
finding
that
Howard
Milne
was
unwilling
rather
than
unable
to
pay
and
therefore
did
not
fit
within
Rule
2100(1)
(b).
The
first
ground
is
set
aside
because
Rule
2100,
wherein
the
word
"may"
is
employed,
is
clearly
permissive
and
not
mandatory.
The
second
and
third
grounds
are
also
set
aside
because
I
do
not
read
the
prothonotary’s
decision
as
holding
that
"an
appeal
of
the
taxpayer’s
tax
account
is
a
pre-condition
to
the
application
of
Rule
2100"
or
that
"section
158
of
the
Income
Tax
Act,
R.S.C.
1985,
c.
1
(5th
Supp.)
(the
"Act")
takes
precedence
over
Rule
2100".
In
my
view,
the
prothonotary
merely
did
as
he
was
entitled
to
do
in
the
exercise
of
the
discretion
vested
in
him
by
Rule
2100,
which
is
to
take
into
account
section
158
of
the
Income
Tax
Act
and
the
absence
of
an
appeal
by
the
taxpayer
of
the
assessment
of
the
Minister
of
National
Revenue.
Finally,
when
the
fourth
and
fifth
grounds
were
argued
before
me,
counsel
for
the
applicant
simply
disputed
the
findings
made
by
the
prothonotary
with
respect
to
facts
as
they
relate
to
Rules
2100(l)(a)
and
(b).
In
that
regard,
the
prothonotary
expressed
the
following
in
the
written
reasons
filed
in
support
of
his
decision:
In
the
present
situation
special
circumstances
exist
which
may
do
harm
to
the
applicant,
although
the
Crown
urges
otherwise.
Equally,
harm
may
also
occur
to
the
Crown.
To
release
the
seized
shares,
in
return
for
the
promise
of
token
monthly
payments
and
an
agreement
to
try
to
renegotiate
those
payments
every
three
months,
and
to
pay
lump
sums
in
addition
when
possible,
might
not
be
a
prudent
course.
If
the
Crown
gives
up
a
secured
position
for
very
little
in
return,
that
could
result
in
harm
to
the
Crown
if
Revenue
Canada
had
to
collect
the
tax
assessment
in
the
future
and
were
unable
to
find
any
assets,
for
presently
Howard
Milne’s
situation
is
not
good.
Counsel
for
Howard
Milne
also
points
out
that
at
present
his
client
fits
into
the
second
branch
of
Rule
2100,
in
that
he
is
unable
to
pay,
although
considering
Mr.
Milne’s
shareholdings
and
their
present
value,
it
may
be
more
of
a
case
of
unwilling
to
pay,
given
his
view
that
for
the
end
of
the
1994
tax
year
he
and
Revenue
Canada
will
be
about
even.
On
balance
and
given
Howard
Milne’s
purported
financial
situation,
there
could
be
substantially
more
harm
to
the
Crown
should
the
execution
proceedings
be
stayed,
for
there
is
no
guaranty
that
if
Revenue
Canada
gives
up
its
present
secure
position,
as
proposed
by
Howard
Milne,
that
they
will
be
able
to
collect
the
tax
presently
owed.
In
the
present
instance
no
appeal
has
been
taken,
or
can
now
be
taken,
of
the
underlying
assessment.
It
is
neither
for
Revenue
Canada
to
have
to
speculate
on
what
its
balance
with
Howard
Milne
might
be
at
the
end
of
1994,
or
some
future
tax
year,
when
Howard
Milne
might
have
an
offsetting
loss,
nor
to
have
to
give
up
a
position
secured
by
seizures
under
the
writ
of
execution.
Rather,
on
the
basis
of
the
case
law
built
around
section
158
of
the
Income
Tax
Act
and
because
there
is
no
compelling
reason
to
depart
from
that
case
law,
the
Minister
of
National
Revenue
is
entitled
to
the
tax
balance
due
now.
Upon
review
of
all
the
evidence,
given
the
discretion
vested
in
me
by
Rule
2100,
I,
like
the
prothonotary,
am
not
satisfied
that
there
are
special
circumstances
which
render
it
inexpedient
to
enforce
the
certificate
herein,
which
is
sufficient
to
deny
the
requested
stay
of
execution
proceedings.
Moreover,
I
have
not
been
convinced
that
the
applicant
"is
unable
from
any
cause
to
pay
the
money’.
Consequently,
the
appeal
will
be
dismissed
with
costs.
Appeal
dismissed
with
costs.
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