ITA-2808-91
IN THE MATTER OF the Income Tax Act,
- and -
| IN THE MATTER OF an assessment or assessments by the Minister of National Revenue under one or more of the Income Tax Act, Canada Pension Plan, Unemployment Insurance Act, 1971; |
| Against: WILLIAM ARCHER, Executor of the Last |
Will and Testament of
MARGARET PASSER, deceased
c/o Hughes, Archer, Dorsch
372 Bay Street, Suite 1405
of Toronto
in the province of Ontario
REASONS FOR ORDER AND ORDER
GILES, A.S.P.:
In the motion before me seeking leave to issue a Writ of Fieri Facias, it is said that a former Writ of Fieri Facias failed to be renewed through inadvertence. I note from the Shorter Oxford Dictionary that "inadvertence" is the fact or habit of being inadvertent. Because of the large numbers of Writs of Fieri Facias which I am asked to extend before they expire, I am open to being persuaded that I am not being asked to endorse habitual negligence. If that were the case, I might have difficulty granting leave, particularly, if, as in this case, no representations were made to indicate what steps had been taken to prevent recurrence.
In this case, the Writ was issued in April, 1991, and therefore expired in April, 1996 notwithstanding the contrary statement in the material filed. Although more than one year has passed since the Writ expired, the significant fact is that more than six years has passed since the Certificate having the effect of a judgment was filed. Because more than six years has elapsed Rule 2001(1)(a) applies and leave of the Court is required before a Writ may issue.
In addition, I notice that the debtor is an estate of a deceased person. In the usual case, one would expect all the assets of such an estate to have been distributed to creditors or others within the six years which has expired. The reason for a new Writ to be required may be that it is anticipated that assets are expected to come into the hands of the executors against which it is sought to issue execution, if that is the case, Rule 2001(1)(c) will also apply to require leave.
The procedure to follow when requesting leave is set in Rule 2003. One of the matters to be addressed is the reason for the delay in enforcing the judgment (not in renewing the Writ). To answer this prerequisite, counsel should inform the Court of the efforts made to collect the sums owing. In addition, to satisfy the Court with respect to Rule 2001(1)(c), I would anticipate some statements as to what new assets were expected to fall into the hands of the executors.
In the circumstances, I intent to dismiss this motion without prejudice to the applicant's right to reapply on better evidence.
ORDER
Motion dismissed without prejudice to the applicant's right to reapply on better evidence.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
June 4, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: ITA-2808-91
STYLE OF CAUSE: I N THE MATTER OF the Income Tax Act,
- and -
| IN THE MATTER OF an assessment or assessments by the Minister of National Revenue under one or more of the Income Tax Act, Canada Pension Plan, Unemployment Insurance Act, 1971; |
| AGAINST: |
| WILLIAM ARCHER, Executor of the Last Will and Testament of |
MARGARET PASSER, deceased
c/o Hughes, Archer, Dorsch
372 Bay Street, Suite 1405
of Toronto
in the province of Ontario
CONSIDERED AT TORONTO, ONTARIO UNDER THE PROVISION OF RULE 324.
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JUNE 4, 1997
REASONS FOR ORDER
AND ORDER BY: GILES, A.S.P.
DATED: JUNE 4, 1997
APPEARANCES:
Ms. Celia Rasbach
For Her Majesty the Queen
SOLICITORS OF RECORD:
George Thomson
| Deputy Attorney General |
Canada
For Her Majesty the Queen
FEDERAL COURT OF CANADA
Court No. ITA-2808-91
BETWEEN:
| I N THE MATTER OF the Income Tax Act, |
- and -
| IN THE MATTER OF an assessment or assessments by the Minister of National Revenue under one or more of the Income Tax Act, Canada Pension Plan, Unemployment Insurance Act, 1971; |
| AGAINST: |
| WILLIAM ARCHER, Executor of the Last Will and Testament of |
MARGARET PASSER, deceased
c/o Hughes, Archer, Dorsch
372 Bay Street, Suite 1405
of Toronto
in the province of Ontario
REASONS FOR ORDER & ORDER