Rothstein,
J.:—
This
is
a
motion
by
the
Attorney
General
of
Canada
on
behalf
of
the
Minister
of
National
Revenue
for
an
order
directing
the
Canadian
Imperial
Bank
of
Commerce
to
deliver
up
to
the
sheriff
of
the
Winnipeg
Judicial
District
the
contents
of
the
safety
deposit
box.
These
reasons
apply
to
both
this
action
and
to
the
action
in
respect
of
Sharon
Asselin
in
court
file
ITA-1256-92.
On
September
30,
1991
a
certificate
was
registered
in
the
Federal
Court
certifying
as
payable
by
Murray
Michael
Bruce
Boyce
to
Her
Majesty
the
Queen
the
sum
of
$174,842.27
plus
interest.
On
February
13,
1992
a
similar
certificate
was
registered
in
the
Federal
Court
in
respect
of
Sharon
Asselin
certifying
that
she
was
indebted
to
Her
Majesty
for
the
sum
of
$17,077.36
plus
interest.
These
certificates
are
deemed
to
be
judgments
of
the
Federal
Court.
The
indebtedness
appears
to
arise
under
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act"),
the
Canada
Pension
Plan
and
the
Unemployment
Insurance
Act,
1971.
On
February
13,
1992
writs
of
fieri
facias
were
issued
by
the
Federal
Court
with
respect
to
Boyce
and
Asselin.
The
writs
were
served
on
the
Manager,
Canadian
Imperial
Bank
of
Commerce,
1075
Autumnwood
Drive
branch,
Winnipeg,
on
February
14,
1992.
When
the
sheriff
attended
at
the
branch
on
February
24,
1992
to
access
the
contents
of
the
safety
deposit
box
under
contract
to
Boyce
and
Asselin,
the
sheriff
was
advised
by
the
bank
manager
that
she
would
not
allow
access
to
the
safety
deposit
box
by
the
sheriff
unless
a
"drilling
order”
was
obtained.
Counsel
for
the
bank
asserted
that
in
the
case
of
access
to
a
safety
deposit
box
a
writ
of
fieri
facias
is
insufficient.
A
specific
drilling
order"
is
necessary.
No
authority
was
cited
in
support
of
this
proposition,
although
counsel
produced
certain
correspondence
with
the
sheriff
which
indicated
that
the
practice,
at
least
in
Winnipeg,
is
for
the
sheriff
to
obtain
a
"drilling
order"
when
a
bank
refuses
access
to
a
safety
deposit
box.
Counsel
for
the
bank
further
argued
that
based
upon
the
authority
in
Eccles
v.
Bourque,
27
C.R.N.S.
325
that
if
the
safety
deposit
box
is
empty,
the
sheriff
will
be
guilty
of
trespass.
Counsel
asserted
that
the
law
in
this
area
derives
from
a
balancing
of
rights
between
debtors
and
creditors
and
that
the
balance
requires
a
specific
drilling
order"
in
the
case
of
a
safety
deposit
box.
Counsel
for
the
Attorney
General
makes
the
following
argument
which
I
take
from
the
written
statement
of
fact
and
law
submitted.
6.
The
eminent
jurist,
G.V.
La
Forest,
now
with
the
Supreme
Court
of
Canada,
published,
as
a
member
of
the
Faculty
of
Law
at
the
University
of
New
Brunswick,
the
following
with
respect
to
the
writ
of
fieri
facias:
The
writ
of
fieri
facias
(or
fi
fa)
is
the
maid
of
all
work
in
the
law
of
execution.
So
much
is
this
so
that
in
ordinary
parlance
when
we
speak
of
issuing
execution
we
mean
the
fieri
facias.
It
commands
the
sheriff
to
cause
to
be
made
(fieri
facias)
out
of
the
lands
and
chattels
of
the
judgment
debtor
an
amount
sufficient
to
pay
the
judgment
creditor
with
costs.
The
writ
has
been
the
most
usual
mode
of
execution
for
a
long
time,
it
is
of
great
antiquity,
dating
to
the
earliest
days
of
the
common
law.
["Some
Aspects
of
the
Writ
of
Fieri
Facias",
G.V.
La
Forest,
1959,
U.N.B.
Law
Journal,
page
38]
7.
In
Halsbury's
Laws
of
England,
4th
Edition,
Volume
17,
at
paragraph
468,
the
text
reads
as
follows:
The
writ
is
said
to“
bind”
the
property
in
the
goods
of
the
judgment
debtor
in
the
bailiwick.
When
it
is
said
that
the
goods,
or
the
property
in
them,
are
''bound",
what
is
meant
is
that
the
sheriff
acquires
a
legal
right
to
seize
the
goods.
8.
It
is
the
submission
of
Her
Majesty
the
Queen
that
it
is
the
sheriff's
duty
under
a
writ
of
fieri
facias
to
ascertain
where
the
judgment
debtor's
goods
are
and
to
seize
them.
For
this
purpose,
the
sheriff
can
legally
enter
the
dwelling
house
and
premises
of
the
judgment
debtor,
or
of
any
stranger
to
whose
premises
the
debtor's
property
has
been
removed,
but
the
law
dealing
with
the
sheriff's
right
of
entry
under
civil
process
is
subject
to
the
overriding
rule
that
he
must
not
gain
entry
by
force
against
the
will
of
the
judgment
debtor
or
such
stranger.
[Halsbury's,
supra,
at
paragraph
465]
9.
In
regard
to
the
last
phrase
of
the
previous
paragraph,
the
Halsbury's
text
goes
on
to
state
the
following:
The
privilege
is
confined
to
dwelling
houses.
The
outer
door
premises
occupied
by
the
debtor,
but
not
being
his
dwelling
house,
nor
within
the
curtilage
of
his
dwelling
house,
may
lawfully
be
broken
open.
[Halsbury's,
supra,
paragraph
466]
10.
Once
an
entry
has
been
made,
the
doors
of
particular
rooms,
cupboards
or
trunks
may
be
broken
open,
in
order
to
complete
the
execution.
It
is
not
necessary
to
demand
that
inner
doors,
cupboards
or
trunks
be
opened
but
for
the
breaking.
[Halsbury's,
supra,
paragraph
467]
11.
The
Canadian
Imperial
Bank
of
Commerce
is
not
objecting
to
the
drilling
of
the
safety
deposit
box
because
it
is
not
leased
to
the
judgment
debtors.
It
is
clear
from
the
affidavit
of
Francine
Hollingworth,
sworn
November
2,
1992,
that
she
is,
in
fact,
satisfied
that
the
safety
deposit
box
is
leased
to
the
judgment
debtors.
[Affidavit
of
Francine
Hollingworth,
paragraph
3]
12.
There
does
not
appear
on
the
face
of
the
affidavit
material,
nor,
indeed,
does
it
appear
to
be
the
contention
of
the
Canadian
Imperial
Bank
of
Commerce
that
the
bank
premises
located
at
1075
Autumnwood
Drive,
Winnipeg,
Manitoba,
is
a
dwelling.
As
indicated
in
the
text
from
Halsbury's,
the
privilege
only
extends
to
dwelling
houses.
[Hodder
v.
Williams,
[1895]
2
Q.B.
663
(C.A.)]
13.
Although
there
appears
to
be
no
case
exactly
on
point,
the
learned
authors
of
Debtor-Creditor
Law:
Practice
and
Doctrine,
Springman
and
Gertner,
1985,
Butterworth
&
Co.
(Canada)
Ltd.,
state
the
following
at
page
152
of
the
text:
Property
owned
by
the
debtor
but
secreted
in
the
hands
of
third
parties
is
seizable
by
the
sheriff.
Even
the
dwelling
house
of
such
a
stranger
could
be
broken
into
by
the
sheriff
if
the
debtor
had
hidden
himself
or
his
goods
there
and
commercial
premises
have
no
such
protection
at
common
law.
The
legality
of
the
entry
is
determined
by
an
actual
finding
of
the
debtor’s
property.
Applying
these
principles,
there
is
no
reason
in
law
to
prevent
the
sheriff
from
breaking
a
safety
deposit
box.
Practically,
however,
depositing
a
certificate
in
a
safety
deposit
box
guarantees
virtual
immunity,
because
even
if
the
sheriff
happens
to
learn
of
the
box
and
its
contents,
the
costs
of
executing
must
be
balanced
against
possible
returns
from
seizure
and
sale.
Even
the
most
cooperative
bank
has
no
choice
but
to
drill
the
box
if
the
debtor
does
not
disgorge
the
key,
and
debtors
are
not
known
for
their
co-operation.
The
best
the
bank
can
do
is
seal
the
box.
14.
This
excerpt
from
the
Springman
and
Gertner
text
is
apposite
here,
as
well.
If
the
Canadian
Imperial
Bank
of
Commerce's
position
is
accepted,
then
the
execution
creditor
must,
in
addition
to
paying
the
costs
of
the
drilling
of
the
safety
deposit
box,
pay
for
a
solicitor
to
make
an
application
to
the
Court
to
obtain
a
further
order.
Neither
the
present
state
of
the
law,
nor
public
policy,
should
dictate
such
a
result.
While
I
cannot
fault
counsel
for
the
bank
for
wishing
to
proceed
cautiously
in
view
of
the
fact
that
this
precise
issue
has
not
been
specifically
decided
(at
least
neither
counsel
were
unable
to
refer
me
to
any
authorities
directly
on
point)
I
am
unable
to
accede
to
his
position.
There
does
not
seem
to
be
any
special
reason
why
in
addition
to
a
writ
of
fieri
facias
a
judgment
creditor
must
also
obtain
a
“drilling
order".
There
is
nothing
new
that
must
be
addressed
by
a
Court
when
the
sheriff
is
instructed
to
obtain
the
contents
of
a
safety
deposit
box.
Counsel
mentioned
that
to
obtain
a"
drilling
order"
it
would
be
necessary
to
establish
that
a
judgment
had
been
obtained,
and
that
the
specific
location
of
the
safety
deposit
box
be
ascertained.
However,
the
writ
of
fieri
facias
could
not
be
obtained
without
a
preceding
judgment.
Nor
has
any
cogent
reason
been
advanced
for
requiring
the
Court
to
have
specific
evidence
of
the
location
of
a
safety
deposit
box
before
it
could
be
accessed.
Under
the
circumstances,
I
see
no
purpose
nor
necessity
for
obtaining
a
further
“
drilling
order"
in
addition
to
a
writ
of
fieri
facias.
Nor
am
I
of
the
view
that
the
sheriff
would
be
trespassing
if
the
safety
deposit
box
was
empty.
There
is
no
dispute
in
this
case
that
the
judgment
debtors
did
have
a
safety
deposit
box
at
the
branch
of
the
bank
in
question.
The
judgment
debtors
have
the
right
to
the
use
of
the
safety
deposit
box.
That
right
is
itself
an
asset
which
is
present
at
the
branch
in
question.
In
my
opinion,
this
is
not
a
circumstance
analogous
to
that
referred
to
by
Dickson,
J.
(as
he
then
was)
in
Eccles
v.
Bourque,
supra.
I
am
therefore
of
the
opinion
that
the
writs
of
fieri
facias
were
sufficient
to
authorize
the
sheriff
to
gain
entry
to
the
safety
deposit
box
in
this
case.
Having
said
this,
it
must
recognize
that
the
bank
is
a
third
party
as
between
the
judgment
creditor
and
the
judgment
debtors.
It
should
be
kept"
whole”
by
the
judgment
creditor
where
it
co-operates
to
allow
the
sheriff
to
execute
the
writ
of
fieri
facias.
In
these
circumstances,
a
bank
would
be
justified
in
insisting
that
it
be
indemnified
for
the
reasonable
cost
of
drilling
the
safety
deposit
box
and
restoring
it
to
usable
condition
thereafter.
Since
drilling
must
be
a
fairly
common
practice,
e.g.,
where
customers
lose
their
keys,
the
cost
involved
should
be
readily
ascertainable.
Counsel
for
the
Attorney
General
argued
that
the
bank
would
incur
the
cost
of
drilling
and
restoration
in
any
event
because
the
judgment
debtors
were
not
co-operating
and
eventually
the
bank
would
have
to
drill
the
box
to
secure
its
return
to
its
own
use.
On
the
material
before
me,
I
have
no
basis
for
making
these
assumptions,
and
I
am
of
the
view
that
the
bank
should
not
be
"out
of
pocket"
when
it
co-operates
to
allow
access
by
a
sheriff
to
the
safety
deposit
box.
The
application
of
the
Attorney-General
is
granted.
Considerable
argument
took
place
with
respect
to
the
matter
of
costs.
While
the
Attorney
General
was
successful
in
this
case,
and
there
was
little
to
support
the
bank's
position,
the
bank
is
an
innocent
third
party.
In
the
absence
of
precedents
and
the
apparent
practice
of
obtaining
“drilling
orders"
in
Winnipeg
in
some
circumstances,
it
was
not
unreasonable,
in
my
opinion,
for
the
bank
to
be
uncertain
of
its
position
in
this
case.
Accordingly,
I
will
make
no
order
as
to
costs.
Application
granted.
Email this Content