T-3352-77
The Queen (Plaintiff)
v.
Nest Mfg. Ltd. (Defendant)
Trial Division, Mahoney J. Calgary, October 6;
Vancouver, October 11, 1977.
Crown — Executions — Excise tax and penalty owed by
defendant — Certificate registered under s. 52(4) of Excise
Tax Act Proceedings as if judgment of Court — Goods
seized on writ of fieri facias — Bank claiming priority for
security under s. 88 of Bank Act — Issue of priority — Excise
Tax Act, R.S.C. 1970, c. E-13, s. 52(4) — Bank Act, R.S.C.
1970, c. B-1, s. 88.
ACTION.
COUNSEL:
Arthur M. Lutz for plaintiff.
James P. Low for defendant.
B. K. O'Ferrall for Bank of Commerce.
Burton Shields for E. W. Nisky.
SOLICITORS:
Deputy Attorney General of Canada for
plaintiff.
Craig & Salmon, Calgary, for defendant.
Jones, Black & Company, Calgary, for Bank
of Commerce.
i.ockwood & Shields, Calgary, for E. W.
Nisky.
The following are the reasons for order ren
dered in English by
MAHONEY J.: The plaintiff has registered a
certificate under subsection 52(4) of the Excise
Tax Act' in respect of $35,850.58 excise tax and
penalty assessed against the defendant thereby
becoming entitled to take proceedings on the cer
tificate as if it were a judgment of this Court.
Certain goods manufactured by the defendant
were seized in Alberta on writs of fieri facias.
Claims of priority were entered with the sheriffs
' R.S.C. 1970, c. E-13.
concerned by the Canadian Imperial Bank of
Commerce, the validity of whose security under
section 88 of the Bank Act 2 is not challenged. An
order for the private sale of the goods by the bank,
the proceeds to be accounted for and paid to the
sheriff of Calgary, was made on consent. — The
priority of the plaintiff and bank remains to be
decided.
I find nothing in the Excise Tax Act giving the
Crown priority over a secured creditor in respect
of assets subject to the security. This case involves
excise tax accrued due in respect of goods, other
than those seized, sold by the defendant. It is to be
distinguished from the situation considered by
Rowbotham L.J.S.C. in Attorney General of
Canada v. Canadian Imperial Bank of Commerce'
where he dealt with the excise tax attributable to
the goods sold by the bank in realization of its
section 88 security. There, the effect of pertinent
provisions of the Excise Tax Act was to place the
bank in the taxpayer's shoes in so far as the goods
sold by it was concerned. That is not, however, to
say that it is also in the taxpayer's shoes in so far
as other excise tax liability is concerned.
ORDER
IT IS ORDERED AND ADJUDGED that the goods
seized herein are not exempt from seizure and that
the Canadian Imperial Bank of Commerce has
priority over the plaintiff in respect of the proceeds
of their sale. In the circumstances the plaintiff is
entitled to her costs which I fix at $200 in lieu of
taxation exclusive of disbursements.
2 R.S.C. 1970, c. B-1.
3 [1974] 1 W.W.R. 186.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.