Maguire, DJ:—This matter came before me at Regina, Saskatchewan, on October 15, 1980. An event beyond my control has resulted in rather a lengthy delay in delivery of my judgment.
By order issued at Ottawa, Ontario, on July 25, 1980, it was ordered that all debts due or accruing due by the Garnishee to the above named judgment debtor, including registered retirement savings plans, be attached to answer a judgment recovered against the said judgment debtor by the above named judgment creditor on April 27, 1980, for the sum of $10,046.74 together with costs.
The order was directed to the garnishee requiring it to attend before this Court on an application by the judgment creditor requiring the garnishee to pay to said judgment creditor the debt due from said garnishee to said judgment debtor, or so much thereof as might be sufficient to satisfy said judgment and costs of the proceedings.
Division E, rule 2300, of general rules and orders of this Court.
On the case being called, counsel for the Garnishee advised the Court that the judgment debtor had instructed the garnishee to pay from moneys to the credit of the judgment debtor by the garnishee under a retirement Savings plan such amount as might be determined by the Court to be owing by the judgment debtor to the judgment creditor.
Mr Rendek was then excused from further attendance before the Court.
Counsel for the judgment creditor (creditor) objected to Mr Kaufman, counsel for the judgment debtor (debtor) being heard on the application on the ground that he did not represent a party involved in the application.
I had before me a motion on behalf of the debtor, asking for a stay of execution of the judgment obtained by the creditor on filing a certificate of income tax payable in this Court, having the effect of a judgment of the Court. I decided to hear the applications together.
I do not have before me a copy of the reassessment for tax made by the Minister against the debtor. This was not required in this creditor application, but is established by the letter of the debtor’s accountants attached as an exhibit to the affidavit of Mr Kaufman. The date of the reassessment is not important.
I have no jurisdiction at this stage of the proceedings to adjudicate on the issue of the actual balance of tax owing by the debtor. Paragraph 5 of Mr Kaufman’s affidavit cannot be accepted as proof of the facts alleged there being no basis set forth for the purported knowledge.
The affidavit was undoubtedly filed to support the application for stay of execution.
The jurisprudence established by this Court is against the granting of such a stay in the circumstances here existing.
Section 158 of the Income Tax Act is imperative, requiring immediate payment of tax assessed even though the taxpayer has objected in proper form to the assessment or has taken an appeal to the Tax Review Board or to this Court.
The judgment obtained by the filing of a certificate is not a judgment in the full sense, in that the taxpayer is still entitled to object to the assess- ment and take other steps by appeal, provided he has met the requirement of the Income Tax Act relative to objection to the assessment and this within the time specified. Sections 165 and 169, Income Tax Act.
If the taxpayer established that the assessment is in error, an obligation rests upon the Minister to refund the over-payment made.
The only instance were a stay such as asked for here will be granted is were seizure has been made or property real or personal of the taxpayer, who has, or does within the specified time, objected to the assessment, or taken a proper appeal therefrom, and such sale, prior to final determination of the actual liability may be prejudicial to the taxpayer.
O Lambert v The Queen, [1975] FCR 548; [1975] CTC 120; 75 DTC 5065;
MNR v B Bolduc, [1961] Ex CR 115; [1961] CTC 265; 61 DTC 1148;
MNR v J A Simard, [1962] CTC 310; 62 DTC 1192.
The judgment debtor’s application for a stay is dismissed with costs.
The garnishee, Pioneer Trust Company, is directed and ordered to pay to the judgment creditor from all debts due or accruing due by it to the judgment debtor, the sum of $10,046.74 together with interest at the rate per annum as from time to time prescribed for subsection 161(1) of the Income Tax Act on the sum of $4,890.97 from April 12,1980, to the date of payment, plus the judgment creditor’s cost of these proceedings to be taxed.