Date: 19971217
Docket: T-104-97
BETWEEN:
CAROLE L. BARRONS
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
(MINISTER OF NATIONAL REVENUE)
Defendant
REASONS FOR ORDER
GIBSON, J.:
[1] By notice of motion filed the 3rd of December, 1997, the plaintiff seeks an order under Rule 2100 of the Federal Court Rules1 and section 50 of the Federal Court Act2 staying execution of the Certificate related to a Requirement To Pay dated the 4th of December, 1996, or alternative relief.
[2] The motion is filed in an action based upon an alleged failure of the defendant:
| ... to honour the agreement between [the then Deputy Minister of National Revenue] and the plaintiff for mutually acceptable terms of payment of taxes, ... . |
[3] The "Requirement to Pay" dated the 4th of December, 1996, was directed by the defendant to the plaintiff's employer. In effect, it amounted to a garnishee of the plaintiff's wages at a rate in excess of the payment schedule proposed by the plaintiff and alleged by her to be provided for in the "agreement".
[4] Subsection 50(1) of the Federal Court Act provides as follows:
| 50(1) The Court may, in its discretion, stay proceedings in any cause or matter, |
| (a) on the ground that the claim is being proceeded with in another court or jurisdiction: or |
| (b) where for any other reason it is in the interest of justice that the proceedings be stayed. |
[5] Counsel for the defendant urged that the Court lacked jurisdiction under section 50 to stay recovery under the Requirement To Pay because, whether or not a stay might be in the interest of justice, such action by the Court would not amount to a stay of proceedings "... in any cause or matter ...". The defendant stated the issue in the following terms:
| Can this Court, acting under authority of Federal Court Rule 2100 and section 50 of the Federal Court Act, stay the continuing application of a non-judicial collection device that has been validly implemented under section 224(1.1) of the Income Tax Act?3 |
For the purposes of these reasons, I find it unnecessary to recite the words of Federal Court Rule 2100. In Re YRI-York Ltd. et al. v. Attorney General of Canada et al.4, Mr. Justice Heald wrote:
| Since I think, for the reasons expressed, supra,that the s. 17 procedure herein constitutes a proceeding, it seems to me that the dicta articulated by Stone J. in the case of New Brunswick Electric Power Com'n v. Maritime Electric Co. Ltd., [1985] 2 F.C. 13, ... would apply to the situation at bar. At p. 24 of the reasons, Mr. Justice Stone said: |
| Subsection 50(1) of the Act is not on its face limited to proceedings "before the Court". The inclusion of those words or words of like effect would, I think have removed any doubt as to the intention of Parliament. Omission of them from subsection 50(1) lends some support to an argument that by "proceedings" Parliament intended to confer power, in appropriate circumstances, to stay proceedings in addition to those pending in the Court itself. |
| I find that view of the matter to be persuasive indeed. |
| [underlying added by me for emphasis] |
[6] On the material before, I am satisfied that the "non-judicial collection device" of a Requirement To Pay, authorized as it is by subsection 224(1.1) of the Income Tax Act, is a proceeding in a cause or matter notwithstanding that it is not a cause or matter before this Court. Thus, I find that it is within the jurisdiction of this Court under subsection 50(1) of the Federal Court Act to stay such a proceeding.
[7] The issue then arises, are the circumstances that were before me "appropriate circumstances" in which to exercise this Court's discretionary jurisdiction to stay. I conclude that the answer to that question must be no. The "Requirement To Pay" was first issued by the defendant in December, 1996, just over a year ago. The action in which this motion was filed, relating to the Requirement To Pay was commenced the 22nd of January, 1997. Now, almost a year later, the plaintiff seeks this stay. Whatever the hardship she alleges, and I make no finding in that regard, I am satisfied that to be entitled to a stay, the plaintiff/applicant must move at an early date following the day on which the right to seek the stay arises. Where there is failure, as here, to do so, I am satisfied that it is open to the Court to conclude that the plaintiff/applicant simply has failed to demonstrate "appropriate circumstances" as referred to in the quotation from New Brunswick Electric Power Com'n, above.
[8] In the result, this application for a stay should be dismissed. The alternative remedy sought by the plaintiff was not seriously pursued before me. Accordingly, the plaintiff 's application in its entirety was dismissed.
"Frederick E. Gibson"
Judge
Toronto, Ontario
December 17, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: T-104-97
| STYLE OF CAUSE: CAROLE L. BARRONS |
- and -
| HER MAJESTY THE QUEEN |
| IN RIGHT OF CANADA |
| (MINISTER OF NATIONAL REVENUE) |
DATE OF HEARING: DECEMBER 15, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: GIBSON, J.
DATED: DECEMBER 17, 1997
APPEARANCES:
Ms. Carole L. Barrons
For the Plaintiff
Mr. John Spencer
For the Defendant
SOLICITORS OF RECORD:
Ms. Carole L. Barrons
258 Lorindale Drive
Oshawa, Ontario
L1H 6X4
For the Plaintiff
George Thomson
Deputy Attorney General
of Canada
For the Defendant
FEDERAL COURT OF CANADA
Date: 19971217
Docket: T-104-97
BETWEEN:
CAROLE L. BARRONS
Plaintiff
- and -
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
(MINISTER OF NATIONAL REVENUE)
Defendant
REASONS FOR ORDER
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