[2012] 2 F.C.R. D-6
Customs and Excise
Excise Tax Act
Appeal from Tax Court of Canada (T.C.C.) decision (2010 TCC 298) vacating assessment for unpaid GST levied pursuant to director’s liability provisions in accordance with Excise Tax Act, R.S.C., 1985, c. E-15, s. 323(2)(a)—T.C.C. finding Minister of National Revenue not making reasonable efforts herein to execute writ of seizure, sale; therefore, requirements of Act, s. 323(2)(a) not met—Under Act, directors of corporations may be personally liable to pay unremitted GST unless liability limited thereunder—Whether T.C.C. misinterpreting, misapplying Act, s. 323(2)(a), which limits directors’ liability—Respondent (Barrett), director of corporation which failed to remit GST—T.C.C. finding that Miotto v. Canada, 2008 TCC 128 supporting conclusion that reasonableness of actions of collections officer, bailiff in executing writ of seizure, sale must be considered—Act, s. 323(2)(a) only requiring that corporate liability be registered in Federal Court, that execution be returned unsatisfied—S. 323(2)(a) not requiring that Minister take reasonable steps to search for corporate debtor’s assets prior to execution of writ—Federal Courts Act, R.S.C., 1985, c. F-7, Federal Courts Rules, SOR/98-106 not obliging judgment creditor to make reasonable efforts to search for assets of judgment debtor before instructing sheriff on collection of debt—Nothing in nature of tax debt or nature of director’s relationship with corporate debtor consistent with obligation imposed on Minister by T.C.C. to take reasonable steps to search for corporate debtor’s assets, especially where director, found liable under s. 323(1)(a), can be indemnified from existing corporate assets—T.C.C. erring in application of Miotto since Miotto not intending to impose burden other than one of good faith on Minister—Therefore, T.C.C. misinterpreting Act, s. 323(2)(a) by imposing obligation on Minister to make reasonable efforts when directing sheriff, to search for specific asset—Appeal allowed.
Barrett v. Canada (A-308-10, 2012 FCA 33, Dawson J.A., judgment dated January 30, 2012, 15 pp.)