T-1844-77
The Queen (Plaintiff)
v.
Star Treck Holdings Ltd., Star Treck Holdings
Ltd. operating as The Sultan's Palace, and the
said The Sultan's Palace, Star Treck Holdings
Ltd. operating as Tahiti Retreat, and the said
Tahiti Retreat, Star Treck Holdings Ltd. operat
ing as Neptune's Hideaway and the said Neptune's
Hideaway, Star Treck Holdings Ltd. operating as
The Golden Girls and the said The Golden Girls
(Defendants)
Trial Division, Cattanach J.—Ottawa, August 24,
1977.
Practice — Rule 337(6) — Correction of clerical error —
Certificate registered by Minister of National Revenue in
Federal Court — Whether Court has jurisdiction to cure the
error — Federal Court Rule 337(6) — Income Tax Act, S.C.
1970-71-72, c. 63, s. 223.
Applicant, under authority of Rule 337(6) applies to have a
clerical error amended in a certificate that had been issued by
the Minister of National Revenue and registered in the Court
pursuant to section 223 of the Income Tax Act.
Held, the application is dismissed. A certificate is not a
judgment nor does it become a judgment of the Court when
registered but it remains merely a certificate of the Minister
even though such a certificate when registered has the same
force and effect, and all proceedings may be taken thereon as if
the certificate were a judgment obtained in the Court. Rule
337(6) under which the present application is made is inappli
cable. Rule 337 is applicable to judgments pronounced by the
Court and since a certificate is not a judgment pronounced by
the Court it follows that a clerical error in a certificate cannot
be cured by resort to Rule 337(6).
M.N.R. v. Bolduc [1961] Ex.C.R. 115; International
Brotherhood of Electrical Workers, Local Union, No. 529
v. Central Broadcasting Company Ltd. [1977] 2 F.C. 78
and The Public Service Alliance of Canada, Local 660 v.
The Canadian Broadcasting Corporation [1976] 2 F.C.
151, applied.
APPLICATION in writing under Rule 324.
COUNSEL:
Beverley J. T. Delong for plaintiff.
SOLICITORS:
Deputy Attorney General of Canada for
plaintiff.
The following are the reasons for judgment
rendered in English by
CATTANACH J.: This is an application request
ing this Court to amend a clerical error in a
certificate certified by the Director, Collections
Division, Department of National Revenue, Taxa
tion, under date of May 9, 1977 and registered in
this Court under section 223 of the Income Tax
Act on the same date, that an amount of $15,000
is payable under the Income Tax Act by the
defendants named in the above style and interest
thereon in the amount of $225 has not been paid
constituting a total amount of $15,225 together
with additional interest at the rate of 6% per
annum on the sum of $15,000 from the date of the
filing of the certificate to the date of payment. The
obligation to pay additional interest at the rate
specified from the date of the certificate to the
date of payment is provided for in the Income Tax
Act.
The application was made by way of an ex parte
notice of motion purportedly pursuant to Rule
337(6) for correction of the clerical error in the
certificate and a consequential change in a writ of
fieri facias issued pursuant to the request of the
applicant. The style in the writ of fieri facias
coincides with the style in the certificate and no
error was made in this respect by the officials of
the Registry of the Court. The error occurred in
the certificate and the writ of fieri fadas merely
perpetuated the error in the certificate.
Section 223 of the Income Tax Act (S.C. 1970-
71-72, c. 63) reads:
223. (1) An amount payable under this Act that has not
been paid or such part of an amount payable under this Act as
has not been paid may be certified by the Minister
(a) where there has been a direction by the Minister under
subsection 158(2), forthwith after such direction, and
(b) otherwise, upon the expiration of 30 days after the
default.
(2) On production to the Federal Court of Canada, a certifi
cate made under this section shall be registered in the Court
and when registered has the same force and effect, and all
proceedings may be taken thereon, as if the certificate were a
judgment obtained in the said Court for a debt of the amount
specified in the certificate plus interest to the day of payment
as provided for in this Act.
(3) All reasonable costs and charges attendant upon the
registration of the certificate are recoverable in like manner as
if they had been certified and the certificate had been regis
tered under this section.
It was requested that the application to correct
the clerical error in the certificate be disposed of
without the personal appearance by the solicitor
for the applicant in accordance with Rule 324.
When the application first came before me for
disposition in that manner I directed the Registry
to invite representations from the solicitor for the
applicant as to the authority of this Court to
amend a certificate registered in this Court under
section 223 of the Income Tax Act (quoted above)
as was requested in the motion to that end as well
as the propriety of the applicant seeking to amend
a writ issued consequent upon the registration of
the certificate in question.
Those representations have now been received.
Incidentally the clerical error is of a very minor
nature. Where the word "Treck" appears in the
names of the defendants in the style utilized, it
should have read "Trek". Despite the minor nature
of the error that does not detract from the magni
tude of the issue upon which I invited written
representations which simply put is whether this
Court has authority to correct a clerical error in a
certificate by the Minister and registered under
section 223 of the Income Tax Act, and similarly
whether a writ issued consequent upon the regis
tration of a certificate and which reproduces there
in precisely the pertinent language used in the
certificate can be corrected which in turn depends
on whether the certificate itself can be corrected
by this Court. Accordingly the vital consideration
is whether the certificate can be amended by this
Court.
In M.N.R. v. Bolduc [1961] Ex.C.R. 115, Thur-
low J. (as he then was) had occasion to consider
section 119(2) of the Income Tax Act, R.S.C.
1952, chapter 148. Section 119(2) was in the
identical language of section 223(2).
At page 118 he said:
For, though s. 119(2) provides that, when registered, the cer
tificate has the same force and effect and all proceedings may
be taken thereon as if it were a judgment obtained in this
Court, such a certificate is not in fact a judgment, nor does s.
119(2) say that, on registration, it is to be or becomes a
judgment of this Court. The effect of the making and registra
tion of the certificate is precisely what the Income Tax Act says
it is, no more and no less, and as I read the statute that effect is
not that the certificate is or is to be deemed to be a judgment
but simply to provide that such a certificate . may be made and
registered in this Court and that, upon this being done, it has
the same force and effect and the same proceedings may be
taken upon it as if it were a judgment. The certificate, however,
in my opinion, remains merely a certificate, albeit one of a
unique nature, upon which the proceedings authorized by the
statute may be taken.
Succinctly put he said that a certificate is not a
judgment nor does it become a judgment of the
Court when registered but it remains merely a
certificate of the Minister even though such a
certificate when registered has the same force and
effect, and all proceedings may be taken thereon
as if the certificate were a judgment obtained in
the Court.
This being so Rule 337(6) under which the
present application is made is not applicable. Rule
337 is applicable to judgments pronounced by the
Court and since a certificate is not a judgment
pronounced by the Court it follows that a clerical
error in a certificate cannot be cured by resort to
Rule 337(6).
It seems to me therefore that the proper person
to correct a certificate must be the Minister or
person to whom the pertinent powers and duties of
the Minister are delegated under Part IX of the
Income Tax Regulations.
The solicitor for the applicant cites as authority
for the proposition that this Court has the power to
correct errors in certificates, of this nature which
have been registered in accordance with a statu
tory provision, a passage from the decision of my
brother Thurlow in the Bolduc case (supra) which
follows in the paragraph immediately after the
passage which I have quoted at pages 118-119:
It does not follow, however, that the making of such a
certificate and its registration are not open to attack of any
kind. The certificate is a creature of s. 119 of the Income Tax
Act and that Act is the sole authority for its registration in the
records of this Court. The interpretation and enforcement of s.
119 itself is a matter over which this Court has jurisdiction
under s. 29 of The Exchequer Court Act, if not under any other
statutory provision, and a person affected by the registration of
such ' a certificate is entitled to invoke the exercise of the
Court's jurisdiction to determine the regularity or otherwise of
its making and registration. Moreover, as the registration of the
certificate is an act carried out in the Court, I think the Court
has jurisdiction to examine both the constitutional validity of
the statute authorizing such procedure and the facts upon
which the right of the Minister to make such a certificate and
to have it registered in this Court depends, the whole as an
incident of its inherent authority to secure and maintain the
legality of its records and to correct or avoid abuse of its
processes.
As I appreciate that passage it is not authority
for the proposition for which it is advanced, that is
to say, that this Court may correct a certificate as
registered.
On the contrary it is authority for the proposi
tion that a person affected by the registration of
such a certificate is entitled to invoke the exercise
of this Court's jurisdiction to determine the pro
priety or otherwise of the registration and that it is
open to a person against whom such a certificate is
registered to contest it by way of an independent
proceeding claiming invalidity in the certificate or
its registration. He adds that the Court has juris
diction to examine the constitutional validity of the
statute authorizing the registration of a certificate
and the facts upon which the right of the Minister
to make such a certificate and to have it registered
depends.
To say that the person affected by the certificate
may attack the certificate by impugning the con
stitutional validity of the statute authorizing the
procedure, the making of the certificate by the
Minister and the registration thereof in contraven
tion of the conditions precedent to registration is a
far different thing from saying that the Court has
jurisdiction to correct a certificate which has been
registered. To correct a registered certificate is
tantamount to amending or varying the certificate
and this, I think, is beyond the jurisdiction of this
Court to do.
When Mr. Justice Thurlow used the word "cor-
rect" in the context of the passage cited from the
Bolduc case he used it in the sense of the Court's
inherent jurisdiction to maintain the "legality of
its records" and to "correct or avoid" abuse of its
processes. There is no doubt that the rule of nos-
citur a sociis is applicable and the word "correct"
as so used is controlled by reference to its context
and in that context the word "correct" assumes the
colour of its neighbouring word "avoid" and the
grammatical object which both the words "correct
or avoid" govern and that object is "abuse of its
processes".
A somewhat analogous situation has arisen with
respect to the registration of maintenance orders
under Reciprocal Enforcement of Maintenance
Orders Acts which are uniform statutes enacted by
most, if not all, of the provinces of Canada.
Those statutes consistently provide, in effect
somewhat similar to section 223(2) of the Income
Tax Act, that upon registration of an order given
by the court of a reciprocating province, all pro
ceedings may be taken thereon as if the order has
been an order originally obtained in the court in
which the order is registered. It has been held that
the court in which the order is registered does not
have the power to vary the order given by the court
of the other province for the obvious reason that
the order is not the order of the court in which it is
registered but remains the order of the court which
made the order and the court in which the order is
registered is limited to enforcement of the order by
its processes (see Re Pasowysty and Foreman
(1969) 5 D.L.R. (3d) 427 (B.C.S.C.) followed in
Re Rhinhart v. Rhinhart (1973) 35 D.L.R. (3d)
555 (N.W.T.T.C.) and in Falkner v. Falkner
[1974] 3 W.W.R. 446 (B.C.S.C.) but see Re Short
v. Short (1962) 40 W.W.R. 592 (Alta. S.C.) to
the contrary disapproved and not followed in Re
Pasowysty and Foreman (supra)).
Recently in International Brotherhood of Elec
trical Workers, Local Union, No. 529 v. Central
Broadcasting Company Ltd. [ 1977] 2 F.C. 78 I
had occasion to consider, amongst other things, the
authority of this Court to order that an order of
the Canada Labour Relations Board dated Febru-
ary 19, 1975 filed and registered in this Court
under section 123 of the Canada Labour Code
(R.S.C. 1970, c. L-1 as amended by S.C. 1972, c.
18) on March 12, 1975 should be filed and regis
tered with retrospective effect to March 12, 1975.
This request was inspired by the decision of my
brother Walsh in The Public Service Alliance of
Canada, Local 660 v. The Canadian Broadcasting
Corporation [ 1976] 2 F.C. 151 granting a petition
to strike out the registration of an arbitration
award made by the Labour Relations Board and
purporting to be registered with this Court under
section 159 of the Canada Labour Code.
Except for minor differences in language dictat
ed by the subject matter the language of section
159 before Walsh J. and section 123 which was
before me is identical.
Mr. Justice Walsh held that for the registration
of the order of the Board to be valid it must have
been registered pursuant to a notice of motion
served on the opposite party and supported by
affidavits establishing the conditions precedent to
registration in section 159(1) that the decision or
order of the Board had not been complied with.
This had not been done and accordingly the regis
tration was struck as invalid.
In the case before me I followed and applied the
decision of my brother Walsh. In fact I went
further than Mr. Justice Walsh and held the regis
tration of the order of the Board to be a nullity.
Counsel for the applicant in that matter recog
nized that for the order of the Board to be suscept
ible of enforcement by the processes of this Court
that the order should have specifically set forth the
time within which that which was ordered to be
done must be done. Accordingly I was requested in
the notice of motion to fix a time for compliance
with the Board's order.
This I refused to do because what I was being
asked to do was to tamper with the Board's order
which I do not have the authority to do for the
simple reason that the order remains an order of
the Board and does not become an order of this
Court on filing and registration even though sec
tion 123(2) provides that when the order is regis
tered it shall have the same force and effect and all
proceedings may be taken thereon as if the order
or decision of the Board were a judgment obtained
in this Court.
The similarity of the language of sections 123
and 159 of the Canada Labour Code and section
223 of the Income Tax Act is striking. The sec-
tions in each statute provide first for the conditions
precedent to registration of the order and then
provide the consequences which flow from that
registration. However if the registration is found to
be a nullity no consequences follow from the regis
tration and my brother Thurlow has made it abun
dantly clear in the Bolduc case (supra) that the
validity of the making of the certificate and of its
registration are the proper subjects of attack by a
person affected by the certificate and its
registration.
As I did in International Brotherhood of Elec
trical Workers, Local Union, No. 529 v. Central
Broadcasting Company Ltd. I cannot refrain from
emphasizing that the Minister, and in so referring
to the Minister I am not to be construed as
referring to the Minister personally but only in his
representative capacity knowing, as I do, that the
powers and duties of the Minister in these respects
are delegated to responsible officers of the Depart
ment of National Revenue, should know and
understand the unique nature of these certificates
authorized by section 223 of the Income Tax Act
and in the making and registering of these certifi
cates, which is done in multitudinous numbers,
extreme caution should be exercised to ensure the
complete accuracy of what these responsible offi
cers are called upon to certify and that all condi
tions precedent to the registration of a certificate
have been fulfilled. That a person affected by the
certificate can impugn the making thereof and the
validity of its registration is not subject to doubt
and not to establish the conditions precedent to
registration is to invite the registration being found
to be a nullity in an appropriate proceeding. In the
present matter it is not incumbent upon me to
make any finding as to the validity of the registra
tion and I do not do so but if one or other of the
two conditions precedent imposed by section
223(1) quoted above have not been established
prior to registration under subsection (2) it follows
that an attack on the validity of the registration
would be well founded and that subsequent estab
lishment that one or other of those conditions in
fact existed cannot retrospectively render the
registration valid.
That the affiant of the affidavit submitted in
support of the present motion or the draftsman of
that affidavit fails to appreciate the nature of the
certificate is abundantly clear from paragraphs 2
and 4 of that affidavit.
In paragraphs 2 and 4 the affiant swears that he
has "reviewed the Certificate issued by this Hon
ourable Court on the 9th day of May, A.D. 1977
as Court file No. T-1844-77" attached as Exhibits
1 and 2 respectively.
This Court did no such thing. The Court issued
no certificate. What was issued, made or created,
or whatever descriptive word is to be used, ema
nated from the author of the certificate, in this
instance an officer bearing the title, Director, Col
lections Division, Department of National Reve
nue, Taxation.
Only these bare certificates identified as Exhib
its 1 and 2 in the supporting affidavit to the
present motion were tendered for registration on
May 9, 1977 and were simply registered by offi
cials of the Court Registry on that date. It was not
established by affidavit or other means that there
was a direction by the Minister under section
158(2) of the Income Tax Act or that a period of
30 days had expired after default of payment
either of which circumstance must first be present
by virtue of section 223(1) before the Minister
may certify that an amount payable under the Act
has not been paid in full or in part.
At one time the form of certificate stated that a
period of 30 days from the date of assessment had
elapsed and the officer who signed the certificate
must be taken to have certified. That statement
has been eliminated from the printed forms now in
use which in itself is a retrograde step and I
entertain grave doubts if the inclusion of the state
ment formerly used was sufficient to establish
compliance with the requirements of section
223(1) or its predecessor section and the validity
of the registration in the event of an attack on the
validity of the registration which I am not obliged
to determine in the present matter and I do not do
so.
The form of certificate presently in use is
fraught with inaccuracies and those inaccuracies
follow from a failure to appreciate the significance
of what was stated by Thurlow J. in the Bolduc
case (supra). He stated unequivocally that the
certificate is not a judgment obtained in this Court
nor does it become a judgment of this Court when
registered. It remains what it was originally and
that is merely a certificate made by the author of
the document which by virtue of section 223(2) of
the Income Tax Act may be enforced as if it were
a judgment of this Court which it is not.
Accordingly it is inaccurate for the form of
certificate in use by the Minister to be styled, as it
is, "In the Federal Court of Canada, Trial Divi
sion". Rather the form should be directed "To the
Federal Court of Canada, Trial Division".
Further it is equally inaccurate to recite a style
of cause as between Her Majesty the Queen, as
plaintiff and named persons as defendants. There
is no authority in the Income Tax Act, in the
Federal Court Act, in the Rules of Court or
elsewhere of which I am aware or that I can find
that there is deemed to be an action between the
parties so named. There is in fact no action nor
can there be an action until a statement of claim is
filed with an appropriate style of cause and section
223 of the Income Tax Act does not contemplate
an action being launched but specifically avoids
the necessity thereof. The section provides a short
cut without actual suit. That being so it is incum
bent upon those in whose hands this weapon is
placed to fully appreciate its use and to be meticu
lous and accurate in the detail of using it.
Obviously the proper style to be used should be
somewhat as follows:
To the Federal Court of Canada, Trial Division
In the matter of the Income Tax Act
(and it might be advisable to include an appropri
ate citation and reference to the section of that
Act),
and
In the matter of an assessment by the Minister under the
Income Tax Act (for the appropriate taxation year) against
(the taxpayer as identified by name and address) then followed
by the word "Certificate" and the body which will certify the
amount payable by the taxpayer under the Income Tax Act
which has not been paid.
I have perpetuated this inaccuracy in the form
in these reasons by using the style of cause used in
the motion but I do so merely for the purpose of
the convenience of the Registry in placing the
material on the appropriate file which is desig
nated by a style of cause and an assigned number
and in so doing I am not to be construed as
condoning an inaccurate practice by the authors of
these certificates.
As previously intimated and for the reasons
expressed in that regard, Rule 337(6) is not avail
able to the applicant to correct errors in the certifi
cate produced by the applicant for registration and
I have been unable to find in the Income Tax Act
any provision under which the Minister may move
to correct errors in a certificate compiled by him
which have been found to exist after registration
nor has any such provision been cited to me.
Accordingly, for the foregoing reasons, the
application to correct the certificate is refused and
it follows from such refusal that the consequential
application to correct the writ of fieri facias is
likewise refused for the additional reason that no
error has occurred in the issuance of that writ by
the Registry officials.
The error in the certificate is an insignificant
one but the principle involved in the motion is not.
While it is not my function, at this time, to say it
might well be, since the error in the certificate is
the addition of a single letter of the alphabet to
one word in the corporate name of one taxpayer,
comprised of four words and many letters, which
operates presumably as an individual carrying on
business under other names in which no error has
been made, that the taxpayers against whom exe
cution is sought are sufficiently identified to
permit the sheriff to execute the writ against those
taxpayers who are correctly identified as well as
the taxpayer whose name includes a slight error
which might not be sufficient to destroy the iden
tification of that taxpayer.
This is a gratuitous comment and is not to be
construed as binding or authoritative in any way.
In the light of the dismissal of the motion herein
what further course or courses to be adopted
remain the decision of the applicant.
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.