Collier,
J:—The
plaintiff
sues
to
recover
from
both
defendants
the
sum
of
$1,715
alleged
to
be
owing
to
the
Crown
by
virtue
of
certain
provisions
of
the
Excise
Tax
Act,
RSC
1970,
c
E-13
and
amendments.”
To
understand
the
problem,
it
is
necessary
to
set
out
the
facts.
An
agreed
statement
of
facts
was
filed
at
the
opening
of
the
trial.
Additional
facts
were
agreed
upon
during
argument.
I
shall
set
out
the
agreed
statement.
I
have
added,
in
the
appropriate
places,
the
additional
facts
referred
to:
1.
Creative
Graphic
Services,
a
partnership
between
one
Carl
Hans
Kristensen
and
one
Robert
Bruce
Douglas
applied
for
and
received
Sales
Tax
Licence
No
85-2102
pursuant
to
the
Excise
Tax
Act,
RSC
1952,
c-100,
now
RSC
1972,
on
July
26th,
1967.
The
license
was
issued
in
the
name
of
Creative
Graphic
Services.
2.
Creative
Graphic
Services
was
in
the
business
of
printing
and
upon
the
sale
and
delivery
by
it
of
printing
became
liable
to
taxation
under
the
Excise
Tax
Act.
3.
During
the
period
between
June
1st,
1967
and
April
30th,
1969
Creative
Graphic
Services
reported
but
failed
to
pay
to
Her
Majesty
the
Queen
sales
tax
in
the
amount
of
$9,482.22.
4.
The
said
Carl
Hans
Kristensen
and
Robert
Bruce
Douglas
were
individually
but
not
jointly
prosecuted
pursuant
to
the
provisions
of
the
Excise
Tax
Act
for
the
failure
of
Creative
Graphic
Services
to
pay
the
required
sales
tax.
On
the
9th
day
of
April,
1970,
Kristensen
appeared
before
His
Honour
Provincial
Judge
Bolsby
and
pleaded
guilty
to
10
charges
of
failure
to
pay
Sales
tax
of
a
total
amount
of
$6,845.78.
Pursuant
to
his
plea
of
guilty
before
the
Provincial
Court
Judge,
Kristensen
was
ordered
to
pay
fines
in
the
total
sum
of
$1,000
and
the
sum
of
$6,845.78
(the
latter
being
an
amount
equal
to
the
tax
that
should
have
been
paid).
The
taxes
and
fines
have
been
paid.
On
the
same
date,
Douglas
was
convicted
in
absentia
with
respect
to
8
counts
of
failure
to
pay
tax
and
a
fine
of
$100.00
on
each
count
was
imposed.
In
addition,
Douglas
was
ordered
to
pay
a
sum
equal
to
the
difference
between
$6,845.78
(the
amount
Kristensen
was
ordered
to
pay)
and
the
sum
of
$9,482.22
set
out
in
paragraph
3.
5.
On
or
about
August
17th,
1971
the
said
Carl
Hans
Kristensen
was
president
and
an
employee
of
Craft
Graphic
Services
Ltd,
and
earning
in
excess
of
$50.00
per
week.
6.
The
said
Carl
Hans
Kristensen
continued
to
be
employed
by
Craft
Graphic
Services
Ltd,
as
president
or
vice
president
until
February,
1973,
during
which
period
he
earned
in
excess
of
$50.00
per
week.
Each
week
during
the
period
August
17,
1971
to
February
1,
1973,
the
defendant
Craft
Graphic
Services
Ltd,
was
indebted
to
and
paid
Carl
Kristensen
in
excess
of
$50.00
per
week.
7.
On
or
about
August
17th,
1971,
the
officers
of
the
Department
of
National
Revenue
made
demand
upon
Craft
Graphic
Services
Ltd.,
pursuant
to
Section
50
of
the
Excise
Tax
Act
for
payment
by
the
said
Craft
Graphic
Services
Ltd,
of
an
amount
sufficient
to
retire
the
liability
of
Creative
Graphic
Services
and/or
Carl
Kristensen
shown
in
the
amount
of
$4,210.51,
or
the
amount
by
which
you
are
or
may
become
indebted,
whichever
is
the
lesser
amount.
A
copy
of
the
said
demand
is
annexed
as
Exhibit
“A”
to
this
Agreed
Statement
of
Facts.
8.
To
date
no
money
has
been
paid
by
Craft
Graphic
Services
Ltd,
to
the
Plaintiff.
9.
The
amount
presently
owed
by
Creative
Graphic
Services
is
$1,715.00.
The
relevant
portion
of
the
demand
referred
to
(Exhibit
A)
is
as
follows:
It
is
believed
you
are,
or
are
about
to
become,
indebted
to
Creative
Graphic
Services,
and/or
Carl
Kristensen,
36
Dunsany
Crescent,
Weston,
Ontario.
hereinafter
called
the
licensee.
You
are
hereby
required
to
pay
over
to
the
Receiver
General
of
Canada
an
amount
sufficient
to
retire
the
liability
of
the
licensee,
as
hereinafter
shown,
or
the
amount
by
which
you
are
or
may
become
indebted,
whichever
is
the
lesser
amount.
The
liability
of
the
licensee
is
as
follows:
$4,210.51
federal
sales
tax
and
accrued
penalty
interest.
(Payment
at
the
rate
of
$50.00
per
week
from
salary,
income
or
other
monies
received
will
be
satisfactory
to
the
Department).
Payments
may
be
made
to
Regional
Chief,
Excise
Tax
Collections,
PO
Box
460,
Stn
“Q”,
Toronto
290,
Ontario.
who
will
furnish
you
with
receipts
therefor.
Discharging
any
liability
to
the
licensee
after
receipt
hereof
renders
you
personally
liable
to
the
extent
of
the
liability
discharged
or
the
amount
claimed
herein,
whichever
is
the
lesser
amount.
This
demand
is
made
pursuant
to
section
50,
subsections
(6),
(7),
and
(8),
of
the
Excise
Tax
Act,
RSC
1952,
Chapter
100,
as
amended,
which
follows
below.
Counsel
for
the
plaintiff
states
the
amount
now
claimed,
$1,715
is
penalties
and
interest
only.
How
that
sum
is
arrived
at
was
not
disclosed.
The
plaintiff’s
claim
for
relief,
as
I
now
understand
it
(and
I
use
paragraphs
8
to
10
of
the
statement
of
claim
as
a
guide),
as
against
the
defendant
Creative
Graphic
Services
is
for
$1,715
plus
any
additional
penalties
and
interest
which
may
be
owing.
As
against
the
other
defendant,
the
limited
company,
the
plaintiff
claims
payment
in
the
sum
of
$1,715
pursuant
to
the
demand
referred
to
as
Exhibit
A
and
a
declaration
that
the
company
“is
liable
to
make
payment
of
sums
due
and
owing
by
it
to
Carl
Kristensen
to
the
Receiver
General
of
Canada
pursuant
to
the
said
demands”.
As
against
both
defendants,
the
plaintiff
claims
further
“a
declaration
that
.
.
.
[Kristensen]
.
.
.
and
.
.
.
[Douglas]
.
.
.
are
partners
in
the
firm
Creative
Graphic
Services”.
A
defence
was
filed
on
behalf
of
Creative
Graphic
Services
by
Mr
Dunn’s
firm.
Mr
Dunn,
at
trial,
said
he
appeared
as
counsel
for
Mr
Kristensen
and
spoke
only
for
him.
The
defences
raised
are:
(1)
to
the
extent
the
plaintiff
is
seeking
to
recover
a
penalty,
the
proper
plaintiff
Should
have
been
the
Minister
of
National
Revenue;
and
(2)
the
plaintiff
is
estopped
because
she
took
the
proceedings
referred
to
in
paragraph
4
of
the
agreed
facts
to
recover
the
monies
owing.
It
is
said
that
the
previous
proceedings
exhausted
all
of
the
plaintiff’s
remedies,
or
in
any
event,
the
plaintiff
should
be
restricted
in
her
remedies
to
the.
one
already
exercised.
The
defence
of
the
limited
company
is
as
follows:
Kristensen
was
not
a
licensee
under
the
Excise
Tax
Act,
the
partnership
Creative
Graphic
Services
was
the
licensee;
the
company
was
on
the
relevant
date
(August
17,
1971,
the
date
of
the
demand)
not
indebted
to
the
partnership
(the
licensee)
but
to
someone
(Kristensen)
who
was
not
a
licensee;
the
demand
was
therefore
ineffective.
Alternatively,
it
is
submitted
that
if
the
demand
was
effective
in
respect
of
Kristensen,
it
could
only
ensnare
$50
and
not
the
full
amount
said
to
be
owing;
in
other
words,
the
demand
could
not
be
a
continuing
demand
until
the
whole
sum
had
been
paid.
Before
dealing
with
the
particular
claims
advanced
and
the
submissions
made,
I
feel
I
should
make
some
observations
about
the
way
in
which
this
action
proceeded
at
trial.
At
the
opening,
I
expressed
doubts
whether
the
agreed
statement
of
facts,
as
originally
presented,
and
in
the
absence
of
any
further
evidence,
contained
sufficient
facts
for
the
Court
to
be
able
to
come
to
a
decision
having
regard
to
the
allegations
in
the
statement
of
claim,
the
relief
claimed,
and
the
defences
pleaded.
All
three
counsel
indicated
they
could
not
see
any
difficulty
in
that
regard.
During
the
course
of
argument,
it
became
apparent
that
the
initial
statement
of
facts
was
indeed
insufficient
and
further
facts
were
then
agreed
to.
Further
reflection
has
confirmed
my
view
that
the
statement
of
facts,
in
a
number
of
respects,
is
not
truly
apt
to
the
pleadings
and
relief
sought.
All
counsel,
however,
appeared
anxious
to
proceed
on
the
basis
of
the
agreed
facts
as
added
to.
I
have,
therefore,
endeavoured
to
reach
my
decision
on
that
basis.
I
turn
now
to
the
claim
against
the
defendant
Creative
Graphic
Services.
It
is
convenient,
at
this
stage,
to
set
out
certain
portions
of
sections
52
(formerly
section
50)
and
55
of
the
Excise
Tax
Act.
These
sections
are
found
in
Part
VI
of
the
statute:
52.
(1)
All
taxes
or
sums
payable
under
this
Act
shall
be
recoverable
at
any
time
after
the
same
ought
to
have
been
accounted
for
and
paid,
and
all
such
taxes
and
sums
shall
be
recoverable,
and
all
rights
of
Her
Majesty
hereunder
enforced,
with
full
costs
of
suit,
as
a
debt
due
to
or
as
a
right
enforceable
by
Her
Majesty,
in
the
Exchequer
Court
of
Canada
or
in
any
other
court
of
competent
jurisdiction.
(2)
Every
penalty
incurred
for
any
violation
of
this
Act
may
be
sued
for
and
recovered
(a)
in
the
Exchequer
Court
of
Canada
or
any
court
of
competent
jurisdiction;
or
(b)
by
summary
conviction
under
the
provisions
of
the
Criminal
Code
relating
thereto.
(3)
Every
penalty
imposed
by
this
Act,
when
no
other
procedure
for
the
recovery
thereof
is
provided
by
this
Act,
may
be
sued
for,
prosecuted
and
recovered
with
costs
by
the
Attorney
General
of
Canada
or,
in
the
case
of
penalties
under
Part
I,
in
the
name
of
the
Minister
of
Finance
and,
in
the
case
of
penalties
under
any
other
Part,
in
the
name
of
the
Minister
of
National
Revenue.
(4)
Any
amount
payable
in
respect
of
taxes,
interest
and
penalties
under
Part
Il
or
Parts
III
to
VI,
remaining
unpaid
whether
in
whole
or
in
part
after
fifteen
days
from
the
date
of
the
sending
by
registered
mail
of
a
notice
of
arrears
addressed
to
the
licensed
air
carrier
or
taxpayer,
as
the
case
may
be,
may
be
certified
by
the
Deputy
Minister
of
National
Revenue
for
Customs
and
Excise
and
on
the
production
to
the
Exchequer
Court
of
Canada
or
a
judge
thereof
or
such
officer
as
the
Court
or
a
judge
thereof
may
direct,
the
certificate
shall
be
registered
in
that
Court
and
shall,
from
the
date
of
such
registration,
be
of
the
same
force
and
effect,
and
all
proceedings
may
be
taken
thereon,
as
if
the
certificate
were
a
judgment
obtained
in
that
Court
for
the
recovery
of
a
debt
of
the
amount
specified
in
the
certificate,
including
penalties
to
date
of
payment
as
provided
for
in
Part
Il
or
Parts
III
to
VI,
and
entered
upon
the
date
of
such
registration,
and
all
reasonable
costs
and
charges
attendant
upon
the
registration
of
such
certificate
are
recoverable
in
like
manner
as
if
they
were
part
of
such
judgment.
(5)
In
any
case
where
judgment
is
obtained
for
any
taxes
payable
under
Part
II
or
Parts
III
to
VI,
the
provisions
in
such
part
or
Parts
by
which
a
penalty
is
imposed
for
non-payment
of
such
taxes
or
for
failure
to
remit
such
taxes
are
applicable,
with
such
modifications
as
circumstances
require,
to
non-payment
of
such
judgment,
and
the
penalty
is
recoverable
in
like
manner
as
the
judgment
debt.
(6)
When
the
Minister
has
knowledge
or
suspects
that
any
person
is
or
is
about
to
become
indebted
to
a
licensee
he
may,
by
registered
letter,
demand
of
such
person
that
the
moneys
otherwise
payable
to
the
licensee
be
in
whole
or
in
part
paid
over
to
the
Receiver
General
on
account
of
the
licensee’s
liability
under
this
Act.
(7)
The
receipt
of
the
Minister
therefor
constitutes
a
good
and
sufficient
discharge
of
the
liability
of
such
person
to
the
licensee
to
the
extent
of
the
amount
referred
to
in
the
receipt.
(8)
Any
person
discharging
any
liability
to
a
licensee
after
receipt
of
the
registered
letter
referred
to
is
personally
liable
to
the
Receiver
General
to
the
extent
of
the
liability
discharged
as
between
him
and
the
licensee
or
to
the
extent
of
the
liability
of
the
licensee
for
taxes
and
penalties,
whichever
is
the
lesser
amount.
55.
(1)
Every
person
who,
being
required,
by
or
pursuant
to
this
Act,
to
pay
or
collect
taxes
or
other
sums,
or
to
affix
or
cancel
stamps,
fails
to
do
so
as
required
is
guilty
of
an
offence
and,
in
addition
to
any
other
penalty
or
liability
imposed
by
law
for
such
failure,
is
liable
on
summary
conviction
to
a
penalty
(a)
not
being
less
than
the
aggregate
of
twenty-five
dollars
and
an
amount
equal
to
the
tax
or
other
sum
that
he
should
have
paid
or
collected
or
the
amount
of
stamps
that
he
should
have
affixed
or
cancelled,
as
the
case
may
be,
and
(b)
not
exceeding
the
aggregate
of
one
thousand
dollars
and
an
amount
equal
to
the
aforesaid
tax
or
other
sum
or
aforesaid
amount
of
stamps,
as
the
case
may
be;
and
in
default
of
payment
thereof
to
imprisonment
for
a
term
of
not
less
than
thirty
days
and
not
more
than
twelve
months.
(2)
Every
person
who
has
contravened
any
of
the
requirements
of
this
Act
or
of
a
regulation
made
by
the
Minister
under
this
Act
for
which
no
other
penalty
is
provided
is
liable,
on
summary
conviction,
to
a
penalty
of
not
less
than
fifty
dollars
and
not
exceeding
one
thousand
dollars.
The
first
submission
by
Mr
Dunn
is
that
the
Minister
of
National
Revenue
is
the
proper
and
only
plaintiff,
or
alternatively,
the
Minister
should
be
a
co-plaintiff.
Reference
is
particularly
made
to
‘subsection
52(3).
I
do
not
find
any
merit
in
this
argument.
Her
Majesty,
in
my
view,
is
a
proper
plaintiff.
It
is
not
necessary
to
have
the
Minister
of
National
Revenue
as
a
plaintiff.
The
word
used
in
the
subsection
is
“may”.
The
Attorney
General
can,
if
he
wishes,
bring
proceedings
such
as
this
in
the
name
of
the
Minister.
In
my
view,
he
is
not
required
to
do
so.
The
second
submission
is
that
the
plaintiff
has
taken
proceedings
under
section
55
against
Kristensen
and
Douglas;
the
total
tax
owing
at
that
time
was
ordered
to
be
paid;
in
addition
fines
were
assessed;
all
those
amounts
have
been
paid;
the
plaintiff,
having
taken
that
particular
course
and
effected
recovery
thereby,
cannot
now
seek
to
recover
the
same
tax,
or
an
amount
based
on
it,
in
these
civil
proceedings.
I
am
unable
to
accede
to
this
second
submission
for
two
reasons.
Firstly,
there
is
nothing
in
the
statute
to
prevent
the
plaintiff
from
in
effect,
recovering
twice-over
the
amount
of
tax,
penalty
and
interest
owing,
however
unconscionable
that
might
be.
No
authority
to
the
contrary
was
cited
to
me.
Secondly,
there
is
nothing
in
the
agreed
facts
to
indicate
the
sum
now
claimed
($1,715)
has
already
been
recovered
from
either
Kristensen
or
Douglas,
or
both,
as
a
result
of
the
decision
of
the
Provincial
Court
Judge
ordering
payment
of
$9,482.22,
the
amount
of
tax
accruing
between
June
1,
1967
and
April
30,
1969.
I
cannot
infer
that
the
amount
now
claimed
was
part
of
the
$9,482.22.
In
fact,
after
considering
the
statement
of
claim
and
the
figures
there
set
out,
it
seems
likely
the
present
sum
claimed
is
something
additional
to
the
amount
in
respect
of
which
the
prosecutions
were
laid.
The
plaintiff
is
therefore
entitled
to
judgment
against
Creative
Graphic
Services
for
$1,715.
It
was
contended
that
if
judgment
were
given
against
Creative
Graphic
Services,
some
direction
should
be
included
that
the
judgment
not
apply
against
Kristensen.
I
am
unable
to
understand
why
such
a
direction
ought
to
be
made,
but
in
any
event,
I
cannot
give
effect
to
it
having
in
mind
the
way
in
which
this
action
is
framed,
and
the
agreed
facts.
In
paragraph
1
of
the
agreed
facts,
Creative
Graphic
Services
is
described
as
a
partnership
between
Kristensen
and
Douglas.
In
paragraph
9,
it
is
agreed:
“The
amount
presently
owed
by
Creative
Graphic
Services
is
$1,715.00.”
The
defendant
in
the
style
of
cause
is
Creative
Graphic
Services
and
it
is
against
that
entity
I
give
judgment.
I
do
not
express
any
views
as
to
whether
or
not
that
judgment
can
be
realized
against
Kristensen.
I
do
not
allow
the
plaintiff
any
amount
by
way
of
further
penalty
or
interest
over
and
above
the
specific
sum
of
$1,715.
The
plaintiff
has
not
indicated
how
the
sum
claimed
was
arrived
at,
nor
the
dates
from
and
to
which
the
penalty
and
interest
have
been
or
ought
to
be
calculated.
The
plaintiff
also
claims
a
declaration
that
Kristensen
and
Douglas
are
partners
in
the
firm
Creative
Graphic
Services.
In
my
opinion,
the
plaintiff
is
not
entitled,
in
this
proceeding
and
as
it
is
framed,
to
such
a
declaration.
The
plaintiff
did
not
choose
to
name
Kristensen
and
Douglas
personally
as
defendants.
She
chose
to
sue
the
firm.
Again,
I
express
no
opinion
as
to
what
legal
results
against
the
individuals
flow
from
a
judgment
against
the
firm.
I
turn
now
to
the
case
against
the
company.
Counsel
for
the
Crown
relies
on
subsections
52(6)
and
(7).
He
submits:
on
the
date
of
the
demand,
Kristensen
was
an
employee
of
the
company;
the
company
was
indebted
to
him
from
August
17,
1971
to
February
1,
1973
in
amounts
in
excess
of
$50
per
week;
the
company
paid
Kristensen
during
that
period
amounts
in
excess
of
$50
per
week;
those
amounts
in
excess
of
$50
per
week
ought
to
have
been
paid
to
the
Receiver
General
(subsection
(6));
the
company
is
liable
to
the
Receiver
General
for
the
amounts
so
paid
to
Kristensen
(in
excess
of
$50
per
week,
or
for
the
amount
of
the
tax
penalty
owing
by
the
“licensee”,
whichever
is
the
lesser
amount
(subsection
(8)).
Counsel
for
the
company
raises
several
defences:
Kristensen
was
not
a
“licensee”
within
subsection
(6);
Creative
Graphic
Services
was
the
“licensee”;
the
relevant
sections
of
the
statute
must
be
strictly
construed.
By
section
40
of
the
Act,
every
“person”
who
is
required
to
pay
taxes,
must
apply
for
a
licence.
Creative
Graphic
Services,
a
partnership,
applied
in
this
case
and
the
licence
was
issued
in
the
firm
name.
“Person”
is
given
the
following
meaning
by
subsection
2(1)
of
the
Act:
“person”
includes
any
body
corporate
or
association,
syndicate,
trust
or
other
body
and
the
heirs,
executors,
and
administrators
thereof
and
the
curators
and
assigns
or
other
legal
representatives
of
such
person
according
to
the
law
of
that
part
of
Canada
to
which
the
context
extends;
I
am
in
agreement
that
the
provisions
of
the
statute
conferring
this
special
right
of
collection
must
be
strictly
construed.
Subsection
52(6)
is
a
wide
form
of
garnishment.
The
Minister
need
not,
before
issuing
a
demand,
prove
or
establish
to
anybody
that
any
tax
is
owing
by
anybody,
nor
issue,
obtain
or
file
anywhere
a
certificate
of
indebtedness,
nor
obtain
a
judgment
against
the
licensee.
If
the
Minister’s
demand
seeks
to
attach
salary,
the
subsection
appears
to
be
wide
enough
to
entrap
all
salary
(at
least
that
portion
owing
at
the
date
of
the
demand)
without
any
statutory
allowance
or
exemption
so
that
the
alleged
debtor
and
his
family
may,
for
practical
purposes,
financially
survive.
The
Minister,
having
been
given
such
an
extraordinary
remedy,
must
rigidly
comply
with
the
provisions
of
the
Act.
I
refer
to
Royal
Trust
Co
v
Montex
Apparel
Industries
Ltd,
[1972]
3
OR
132.
A
demand,
pursuant
to
subsection
52(10)
(formerly
subsection
50(10))
had
been
issued
by
the
Minister
purportedly
directed
to
a
receiver
appointed
by
the
Court
in
the
course
of
a
foreclosure
proceeding.
The
facts
there
are,
as
usual,
differ
from
the
facts
before
me.
The
following
passage
from
the
judgment
of
the
Ontario
Court
of
Appeal
is,
I
think,
of
some
assisstance
on
the
point
of
strict
compliance
(pages
136-7):
We
therefore
conclude
that
the
Minister
has
not
brought
the
receiver
within
the
definition
of
“person”
in
the
Act
and
that
therefore
the
receiver
is
not
an
assignee
of
a
book
debt.
Consequently
any
demand
directed
to
the
receiver
as
such
assignee
is,
in
our
opinion,
ineffective
in
law.
This
conclusion
is
sufficient
to
dispose
of
the
appeal
by
the
trustee
but
In
addition
to
this
ground
we
rely
upon
the
facts
also
with
respect
-to
the
delivery
of
the
demand.
The
relevant
sections
of
the
Excise
Tax
Act
create
substantive
rights
in
the
Minister;
that
is
to
say,
if
the
Minister
complies
with
the
statutory
provisions
in
issuing
and
delivering
the
demand
contemplated
by
those
provisions
and
if
the
person
to
whom
that
demand
is
directed
is
an
assignee
of
a
book
debt,
as
contemplated
by
the
statute
then,
but
not
otherwise,
the
Minister
has
conferred
upon
him
by
the
statute
the
extra
right
of
being
able
to
collect
the
debtor’s
debt
to
the
Minister
from
a
third
party,
that
is
to
say,
the
assignee
of
the
debtor’s
book
debt.
It
is
abundantly
apparent,
of
course,
that
corresponding
to
that
right
so
conferred
upon
the
Minister
is
an
obligation
imposed
upon
the
assignee
to
make
payment
to
the
Minister
and
it
is
trite,
I
think,
to
observe
that
in
the
creation
or
attempted
creation
of
such
a
right
in
the
Minister,
the
Minister
is
bound
to
strict
observance
of
the
conditions
precedent
upon
which
that
special
right
granted
to
the
Minister
depends.
The
form
of
notice
adopted
by
the
Minister
and
actually
delivered
in
the
case
at
bar
makes
it
abundantly
clear
that
it
is
a
notice,
personal
to
the
assignee
and
to
no
one
else
and,
of
course,
that
is
the
only
type
of
notice
contemplated
by
s
50(9)
and
(10)
of
the
Act.
That
notice
in
the
case
at
bar
was
addressed
not
to
J
S
Whitehead,
the
receiver,
but
to
McDonald,
Currie
and
Co,
Chartered
Accountants,
Attn:
Mr
J
S
Whiteside.
While
it
is
true
that
the
receiver
is
a
partner
or
associate
of
the
named
firm
of
chartered
accountants,
the
demand
was
not
directed
either
to
him
or,
in
its
terms,
to
his
attention,
and
on
that
ground
also
we
would
negate
the
Minister’s
claim
for
priority.
In
my
opinion,
a
“person”
who
applies
for
and
receives
a
license,
can
be
a
firm,
in
contradistinction
to
the
individuals
who
comprise
the
partnership.
Creative
Graphic
Services,
to
my
mind,
falls
within
the
words
“.
.
.
body
corporate
or
association,
syndicate,
trust
or
other
body
.
.
.”
as
found
in
the
description
of
“person”
in
subsection
2(1).
The
Minister
chose
to
grant
a
licence
to
this
particular
person,
Creative
Graphic
Services
(see
subsection
40(2)).
It
alone
became
the
licensee,
in
my
opinion,
referred
to
in
subsection
52(6),
and
not
Kristensen
or
Douglas,
or
all
three.
The
company
was
never
at
any
time
indebted
to
its
co-defendant,
the
licensee.
The
demand,
therefore,
is
ineffective.
It
seems
to
me
also
the
demand,
in
the
way
in
which
it
describes
the
alleged
licensee,
could
be
set
aside
for
vagueness.
It
states
in
part:
“.
.
.
you
are,
or
about
to
become,
indebted
to
Creative
Graphic
Services
and/or
Carl
Kristensen
.
.
.
hereinafter
called
the
licensee”.
The
garnishee
(that
word
is
not
used
in
the
Statute,
but
it
is
a
convenient
one
to
describe
the
person
to
whom
a
demand
is
directed)
is
to
my
mind
left
in
doubt
as
to
the
precise
person
to
whom
he
is
allegedly
indebted.
I
am
not
convinced
the
unhappy
combination
“and/or”
is
capable
of
precise
meaning,
nor
that
it
is
in
strict
compliance
with
the
terms
of
the
statute.
I
express
no
final
view.
The
next
defence
is
an
alternative
to
the
first
one:
if
Kristensen
was
a
licensee,
then
the
Company,
as
of
August
17,
1971
was
indebted
to
him
in
respect
of
earnings
owing
at
that
date
only;
the
demand
required
payment
of
$50
of
that
amount;
the
demand
cannot
embrace
possible
future
indebtedness;
the
liability
of
the
company
is
therefore
limited
to
the
$50.
The
essence
of
this
contention
is
that
the
demand
could
not,
on
the
facts
here,
require
payment
to
the
Receiver
General
of
Kristensen’s
salary,
or
the
portion
specified,
from
August
17,
1971
on
into
the
future
until
the
full
amount
demanded
had
been
satisfied.
I
am
in
agreement
with
that
submission.
There
must,
in
my
view,
be
clear
words
in
the
statute,
enabling
the
Minister
to
garnishee
to
the
extent
urged
on
behalf
of
the
plaintiff.
I
find
no
such
clear
words.
The
Minister
is,
by
virtue
of
subsection
(6),
entitled
to
demand
“..
.
.
the
moneys
otherwise
payable
.
.
.”
from
a
person
who
is
indebted
to
a
licensee
or
is
about
to
become
indebted
to
a
licensee.
The
construction
advanced
on
behalf
of
the
plaintiff
seems
to
me
largely
to
disregard
the
words
“the
moneys
otherwise
payable”.
As
I
see
it,
the
words
“is
or
about
to
become
indebted”
are
not
the
sole
or
controlling
description
when
one
endeavours
to
ascertain
precisely
what
moneys
the
Minister
may
garnishee.
The
words
“is
or
about
to
become
indebted”
have
another
function.
Before
the
Minister
may
issue
a
demand
he
must
have
knowledge
or
suspicion
of
an
indebtedness,
or
of
what
I
shall
term,
an
imminent
indebtedness.
The
quoted
words
thus
provide,
in
one
context
at
least,
guidance
as
to
the
point
in
time,
and
the
grounds
on
which,
the
demand
may
issue.
The
moneys
sought
to
be
attached
must
arise
out
of
an
already
existing
debt,
or
an
imminently
pending
debt,*
but
at
the
same
time,
in
my
opinion,
they
must
be
“payable”
at
the
date
of
the
demand.
I
was
referred
to
Bank
of
Montreal
v
Union
Gas
Company
of
Canada
Ltd,
[1969]
CTC
686;
69
DTC
5441,
and
Re
Royal
Bank
of
Canada
and
Attorney-General
of
Canada,
[1970]
CTC
440.
Subsection
120(1)
of
the
former
Income
Tax
Act,
which
is
similar
to
subsection
52(6)
of
the
Excise
Tax
Act,
was
considered
in
those
two
decisions,
but
the
facts
and
the
problems
were
quite
different
from
the
matter
before
me.
The
decisions
appear
to
hold,
however,
that
a
demand
under
subsection
120(1)
of
the
Income
Tax
Act
creates
a
charge
”.
.
.
not
on
monies
owing
or
accruing
due
as
in
the
case
of
an
attaching
or
garnishee
order
but
on
‘moneys
otherwise
payable’
at
the
time
of
delivery
of
the
demand’’^
In
this
case,
the
moneys
exigible
at
the
date
of
the
demand
were
whatever
moneys
were
payable
at
that
time
as
éarninds.
The
inference
to
be
drawn
frôm
the
agreed
facts
is
that
Kristensen’s
earnings
were
calculated
and
paid
on
a
weekly
basis.
If
the
demand
had
been
an
effective
one,
I
would
have
held
the
amount
the
company
were
required
to
pay
was
the.
amount
owing
at
the
date
of
the
demand.
In
this
case,
the
Minister
in
the
demand,
appears
to
have
limited
himself
to
$50.
My
notes
of
argument
indicate
counsel
for
the
company
suggested
an
alternative
limited
figure
would
be
$312.
I
assume
that
figure
to
be
Kristensen’s
weekly
earnings
at
the
time,
but
there
is
nothing
in
the
agreed
statement
of
facts
or
in
the
transcribed
portion
of
the
argument
where
additional
facts
were
agreed
upon,
to
allow
me
to
use
the
figure
of
$312.
The
demand
is,
as
I
see
it,
ineffective
or
invalid
for
other
reasons
not
raised
by
counsel.
The
demand
requires
the
company
to
pay
“.
.
.
an
amount
sufficient
to
retire
the
liability
of
the
licence
.
.
.
($4,210.51
federal
sales
tax
and
accrued
penalty
interest)
.
.
.
or
the
amount
by
which
you
are
or
may
become
indebted,
whichever
is
the
lesser
amount”.
In
my
view,
the
demand
must
conform
to
the
words
of
the
statute.
It
does
not.
The
amount
“by
which
you
may
become
indebted”
is
not
the
same
thing
as
the
amount
“by
which
you
are
about
to
become
indebted.”*
Next,
the
subsection
in
question
provides
that
the
Minister
may
demand
that
the
moneys
otherwise
payable
be
in
whole
or
in
part
paid
over
to
the
Receiver
General.
In
the
demand
here,
it
is
stated:
“Payment
at
the
rate
of
$50.00
per
week
from
salary,
income,
or
other
monies
received
will
be
satisfactory
.
.
.”.
In
my
view,
the
Minister
must
precisely
specify
what
part,
if
any,
of
the
monies
payable
are,
in
effect,
exempt.
In
the
demand
in
question,
the
amount
payable
by
the
company
is
discretionary,
provided
a
minimum
amount
of
$50
is
paid
over.
That
to
me,
is
not
strict
compliance
with
the
terms
of
the
statute.
I
should
add
this
final
observation.
Even
if
I
had
been
able
to
reject
all
arguments
advanced
on
behalf
of
the
company,
and
to
hold
the
demand
to
be
effective
to
attach
future
earnings
payable
to
Kristensen,
there
still
would
have
been
insufficient
facts
on
which
to
base
the
judgment
sought.
Subsection
52(8)
provides
that
the
company
is
liable
to
the
Receiver
General
to
the
extent
of
the
monies
paid
by
the
company
to
Kristensen
which
ought
to
have
been
paid
over
to
the
Receiver
General,
or
to
the
extent
of
the
liability
of
the
licensee
for
taxes
and
penalties—whichever
is
the
lesser.
I
am
unable
to
ascertain
from
the
facts
here
which
is
the
lesser.
All
I
know
is
that
the
company
paid
Kristensen
in
excess
of
$50
per
week
for
a
period
of
two
years
and
five
to
six
months
from
the
date
of
the
demand.
For
all
I
am
aware,
the
excess
may
have
been
merely
$1
per
week.
On
the
facts
here,
I
cannot
determine
what
is
the
lesser
amount.
In
the
result,
the
plaintiff
will
have
judgment
against
Creative
Graphic
Services
for
$1,715
and
its
costs
of
that
part
of
the
action.
The
action
as
against
the
defendant
Craft
Graphic
Services
Ltd,
is
dismissed.
That
defendant
is
entitled
to
its
costs
against
the
plaintiff.
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