Excise Act, 2001 (S.C. 2002, c. 22)

Marginal note:Over $10,000,000 — security

• 286.1 (1) The Minister may, by sending a notice to a person, require security in a form satisfactory to the Minister and in an amount up to a specified amount that is the greater of $0 and the amount that is determined by the formula

  (A/2) – B – $10,000,000

  where

  A

  is the total of all amounts, each of which is

  • (a) an amount that the person has been assessed under this Act in respect of which a portion remains unpaid, or

  • (b) a penalty that the person is liable to pay under this Act in respect of which a portion remains unpaid; and

  B

  is the greater of $0 and the amount that is determined by the formula

  C – (D/2)

  where

  C

  is the total of all amounts that the person has paid against the amount determined for A in the first formula in this subsection, and

  D

  is the amount determined for A in the first formula in this subsection.

• Marginal note:When security to be furnished

  (2) The security required under subsection (1) shall be furnished to the Minister no later than 60 days following the day on which the Minister required the security.

• Marginal note:Types of security

  (3) The types of security acceptable for the purpose of subsection (1) are those types of security that are acceptable for the purpose of paragraph 23(3)(b).

• Marginal note:Failure to comply

  (4) Despite subsections 286(1) to (7), the Minister may collect an amount equivalent to the amount of security that was required under subsection (1) if the security required under that subsection is not furnished to the Minister as set out in this section.

Marginal note:Authorization to proceed without delay

• 287 (1) Despite section 286, if, on ex parte application by the Minister, a judge is satisfied that there are reasonable grounds to believe that the collection of all or any part of an amount assessed in respect of a person would be jeopardized by a delay in the collection of the amount, the judge shall, on such terms as the judge considers reasonable in the circumstances, authorize the Minister to take without delay any of the actions described in subsection 286(1) with respect to the amount.

• Marginal note:Notice of assessment not sent

  (2) An authorization under subsection (1) in respect of an amount assessed may be granted by a judge even though a notice of assessment in respect of that amount has not been sent to the person at or before the time the application is made if the judge is satisfied that the receipt of the notice of assessment by the person would likely further jeopardize the collection of the amount, and for the purposes of sections 284, 288 to 290, 292 and 293, the amount in respect of which an authorization is so granted is deemed to be an amount payable under this Act.

• Marginal note:Affidavits

  (3) Statements contained in an affidavit of a person filed in the context of an application under this section may be based on the belief of the person.

• Marginal note:Service of authorization and of notice of assessment

  (4) An authorization granted under this section in respect of a person shall be served by the Minister on the person within 72 hours after it is granted unless the judge orders the authorization to be served at some other time specified in the authorization. If a notice of assessment has not been sent to the person at or before the time of the application, the notice of assessment shall be served together with the authorization.

• Marginal note:How service effected

  (5) For the purposes of subsection (4), service on a person shall be effected by

  • (a) personal service on the person; or

  • (b) service in accordance with the directions, if any, of a judge.

• Marginal note:Application to judge for direction

  (6) If service on a person cannot reasonably be effected as and when required under this section, the Minister may, as soon as practicable, apply to a judge for further direction.

• Marginal note:Review of authorization

  (7) If a judge of a court has granted an authorization under this section in respect of a person, the person may, on six clear days notice to the Deputy Attorney General of Canada, apply to a judge of the court to review the authorization.

• Marginal note:Limitation period for review application

  (8) An application under subsection (7) shall be made

  • (a) within 30 days after the authorization was served on the person in accordance with this section; or

  • (b) within such further time as a judge may allow, on being satisfied that the application was made as soon as practicable.

• Marginal note:Hearing in camera

  (9) An application under subsection (7) may, on the application of the person, be heard in camera, if the person establishes to the satisfaction of the judge that the circumstances of the case justify in camera proceedings.

• Marginal note:Disposition of application

  (10) On an application under subsection (7), the judge shall determine the question summarily and may confirm, set aside or vary the authorization and make any other order the judge considers appropriate.

• Marginal note:Directions

  (11) If any question arises as to the course to be followed in connection with anything done or being done under this section and there is no direction in this section with respect to it, a judge may give any direction the judge considers appropriate.

• Marginal note:No appeal from review order

  (12) No appeal lies from an order of a judge made under subsection (10).

Marginal note:Certificates

• 288 (1) Any duty, interest or other amount payable by a person (in this section referred to as the “debtor”) under this Act, or any part of the duty, interest or amount, that has not been paid as and when required under this Act may be certified by the Minister as an amount payable by the debtor.

• Marginal note:Registration in court

  (2) On production to the Federal Court, a certificate in respect of a debtor shall be registered in the Court and when so registered has the same effect, and all proceedings may be taken on the certificate, as if it were a judgment obtained in the Court against the debtor for a debt in the amount certified plus interest on the amount as provided under this Act to the day of payment and, for the purposes of those proceedings, the certificate is deemed to be a judgment of the Court against the debtor for a debt due to Her Majesty and enforceable as such.

• Marginal note:Costs

  (3) All reasonable costs and charges incurred or paid for the registration in the Court of a certificate or in respect of any proceedings taken to collect the amount certified are recoverable in like manner as if they had been included in the amount certified in the certificate when it was registered.

• Marginal note:Charge on property

  (4) A document issued by the Federal Court evidencing a registered certificate in respect of a debtor, a writ of that Court issued pursuant to the certificate or any notification of the document or writ (such document, writ or notification in this section referred to as a “memorial”) may be filed, registered or otherwise recorded for the purpose of creating a charge, lien or priority on, or a binding interest in, property in a province, or any interest in such property, held by the debtor, in the same manner as a document evidencing

  • (a) a judgment of the superior court of the province against a person for a debt owing by the person, or

  • (b) an amount payable or required to be remitted by a person in the province in respect of a debt owing to Her Majesty in right of the province

  may be filed, registered or otherwise recorded in accordance with the law of the province to create a charge, lien or priority on, or a binding interest in, the property or interest.

• Marginal note:Creation of charge

  (5) If a memorial has been filed, registered or otherwise recorded under subsection (4),

  • (a) a charge, lien or priority is created on, or a binding interest is created in, property in the province, or any interest in such property, held by the debtor, or

  • (b) such property or interest in the property is otherwise bound,

  in the same manner and to the same extent as if the memorial were a document evidencing a judgment referred to in paragraph (4)(a) or an amount referred to in paragraph (4)(b), and the charge, lien, priority or binding interest created shall be subordinate to any charge, lien, priority or binding interest in respect of which all steps necessary to make it effective against other creditors were taken before the time the memorial was filed, registered or otherwise recorded.

• Marginal note:Proceedings in respect of memorial

  (6) If a memorial is filed, registered or otherwise recorded in a province under subsection (4), proceedings may be taken in the province in respect of the memorial, including proceedings

  • (a) to enforce payment of the amount evidenced by the memorial, interest on the amount and all costs and charges paid or incurred in respect of

    • (i) the filing, registration or other recording of the memorial, and

    • (ii) proceedings taken to collect the amount,

  • (b) to renew or otherwise prolong the effectiveness of the filing, registration or other recording of the memorial,

  • (c) to cancel or withdraw the memorial wholly or in respect of any of the property or interests affected by the memorial, or

  • (d) to postpone the effectiveness of the filing, registration or other recording of the memorial in favour of any right, charge, lien or priority that has been or is intended to be filed, registered or otherwise recorded in respect of any property or interest affected by the memorial,

  in the same manner and to the same extent as if the memorial were a document evidencing a judgment referred to in paragraph (4)(a) or an amount referred to in paragraph (4)(b), except that, if in any such proceeding or as a condition precedent to any such proceeding, any order, consent or ruling is required under the law of the province to be made or given by the superior court of the province or by a judge or official of the court, a like order, consent or ruling may be made or given by the Federal Court or by a judge or official of the Federal Court and, when so made or given, has the same effect for the purposes of the proceeding as if it were made or given by the superior court of the province or by a judge or official of the court.

• Marginal note:Presentation of documents

  (7) If

  • (a) a memorial is presented for filing, registration or other recording under subsection (4), or a document relating to the memorial is presented for filing, registration or other recording for the purpose of any proceeding described in subsection (6), to any official of a property registry system of a province, or

  • (b) access is sought to any person, place or thing in a province to make the filing, registration or other recording,

  the memorial or document shall be accepted for filing, registration or other recording or the access shall be granted, as the case may be, in the same manner and to the same extent as if the memorial or document relating to the memorial were a document evidencing a judgment referred to in paragraph (4)(a) or an amount referred to in paragraph (4)(b) for the purpose of a like proceeding, except that, if the memorial or document is issued by the Federal Court or signed or certified by a judge or official of the Court, any affidavit, declaration or other evidence required under the law of the province to be provided with or to accompany the memorial or document in the proceedings is deemed to have been provided with or to have accompanied the memorial or document as so required.

• Marginal note:Sale, etc.

  (8) Despite any law of Canada or of a province, a sheriff or other person shall not, without the written consent of the Minister, sell or otherwise dispose of any property or publish any notice or otherwise advertise in respect of any sale or other disposition of any property pursuant to any process issued or charge, lien, priority or binding interest created in any proceeding to collect an amount certified in a certificate made under subsection (1), interest on the amount or costs, but if that consent is subsequently given, any property that would have been affected by such a process, charge, lien, priority or binding interest if the Minister’s consent had been given at the time the process was issued or the charge, lien, priority or binding interest was created, as the case may be, shall be bound, seized, attached, charged or otherwise affected as it would be if that consent had been given at the time the process was issued or the charge, lien, priority or binding interest was created, as the case may be.

• Marginal note:Completion of notices, etc.

  (9) If information required to be set out by any sheriff or other person in a minute, notice or document required to be completed for any purpose cannot, because of subsection (8), be so set out without the written consent of the Minister, the sheriff or other person shall complete the minute, notice or document to the extent possible without that information and, when that consent of the Minister is given, a further minute, notice or document setting out all the information shall be completed for the same purpose, and the sheriff or other person, having complied with this subsection, is deemed to have complied with the Act, regulation or rule requiring the information to be set out in the minute, notice or document.

• Marginal note:Application for an order

  (10) A sheriff or other person who is unable, because of subsection (8) or (9), to comply with any law or rule of court is bound by any order made by a judge of the Federal Court, on an ex parte application by the Minister, for the purpose of giving effect to the proceeding, charge, lien, priority or binding interest.

• Marginal note:Deemed security

  (11) If a charge, lien, priority or binding interest created under subsection (5) by filing, registering or otherwise recording a memorial under subsection (4) is registered in accordance with subsection 87(1) of the Bankruptcy and Insolvency Act, it is deemed

  • (a) to be a claim that is secured by a security and that, subject to subsection 87(2) of that Act, ranks as a secured claim under that Act; and

  • (b) to also be a claim referred to in paragraph 86(2)(a) of that Act.

• Marginal note:Details in certificates and memorials

  (12) Despite any law of Canada or of the legislature of a province, in any certificate in respect of a debtor, any memorial evidencing a certificate or any writ or document issued for the purpose of collecting an amount certified, it is sufficient for all purposes

  • (a) to set out, as the amount payable by the debtor, the total of amounts payable by the debtor without setting out the separate amounts making up that total;

  • (b) to refer to the rate of interest to be charged on the separate amounts making up the amount payable in general terms as interest at the prescribed rate under this Act applicable from time to time on amounts payable to the Receiver General, without indicating the specific rates of interest to be charged on each of the separate amounts or to be charged for any period; and

  • (c) to refer to the penalty calculated under section 251.1 to be charged on the separate amounts making up the amount payable in general terms as a penalty under that section on amounts payable to the Receiver General.

Marginal note:Garnishment

• 289 (1) If the Minister has knowledge or suspects that a person is, or will be within one year, liable to make a payment to another person who is liable to pay an amount under this Act (in this section referred to as a “debtor”), the Minister may, by notice in writing, require the person to pay without delay, if the money is immediately payable, and in any other case, as and when the money becomes payable, the money otherwise payable to the debtor in whole or in part to the Receiver General on account of the debtor’s liability under this Act.

• Marginal note:Garnishment of loans or advances

  (2) Without limiting the generality of subsection (1), if the Minister has knowledge or suspects that within 90 days

  • (a) a bank, credit union, trust company or other similar person (in this section referred to as the “institution”) will loan or advance money to, or make a payment on behalf of, or make a payment in respect of a negotiable instrument issued by, a debtor who is indebted to the institution and who has granted security in respect of the indebtedness, or

  • (b) a person, other than an institution, will loan or advance money to, or make a payment on behalf of, a debtor who the Minister knows or suspects

    • (i) is employed by, or is engaged in providing services or property to, that person or was or will be, within 90 days, so employed or engaged, or

    • (ii) if that person is a corporation, is not dealing at arm’s length with that person,

  the Minister may, by notice in writing, require the institution or person, as the case may be, to pay in whole or in part to the Receiver General on account of the debtor’s liability under this Act the money that would otherwise be so loaned, advanced or paid.

• Marginal note:Effect of receipt

  (3) A receipt issued by the Minister for money paid as required under this section is a good and sufficient discharge of the original liability to the extent of the payment.

• Marginal note:Effect of requirement

  (4) If the Minister has, under this section, required a person to pay to the Receiver General on account of the liability under this Act of a debtor money otherwise payable by the person to the debtor as interest, rent, remuneration, a dividend, an annuity or other periodic payment, the requirement applies to all such payments to be made by the person to the debtor until the liability under this Act is satisfied, and operates to require payments to the Receiver General out of each such payment of any amount that is stipulated by the Minister in a notice in writing.

• Marginal note:Failure to comply

  (5) Every person who fails to comply with a requirement under subsection (1) or (4) is liable to pay to Her Majesty an amount equal to the amount that the person was required under that subsection to pay to the Receiver General.

• Marginal note:Other failures to comply

  (6) Every institution or person that fails to comply with a requirement under subsection (2) with respect to money to be loaned, advanced or paid is liable to pay to Her Majesty an amount equal to the lesser of

  • (a) the total of money so loaned, advanced or paid, and

  • (b) the amount that the institution or person was required under that subsection to pay to the Receiver General.

• Marginal note:Assessment

  (7) The Minister may assess any person for any amount payable under this section by the person to the Receiver General and, if the Minister sends a notice of assessment, sections 188 to 205 apply with any modifications that the circumstances require.

• Marginal note:Time limit

  (8) An assessment of an amount payable under this section by a person to the Receiver General shall not be made more than four years after the notice from the Minister requiring the payment was received by the person.

• Marginal note:Effect of payment as required

  (9) If an amount that would otherwise have been advanced, loaned or paid to or on behalf of the debtor is paid by a person to the Receiver General in accordance with a notice from the Minister issued under this section or with an assessment under subsection (7), the person is deemed for all purposes to have advanced, loaned or paid the amount to or on behalf of the debtor.