Hokanson ( Re )
ITA-6551-93
Hargrave P.
24/10/94
10 pp.
Motion under R. 324 arising out of challenge to bailiff's right to poundage where goods seized under writ of execution but not realized upon by reason of subsequent payment of debt to MNR-Whether there was seizure, levy-If so, applicant asking Court to exercise discretion by decreasing poundage-Crown obtaining writ of execution under Income Tax Act for $54,000 against applicant-Writ sent to Pacific Court Bailiff Execution Services Inc. requesting seizure of vehicle-Applicant advising attending bailiff real property over which Crown's judgment registered to be sold to meet judgment-Bailiff satisfied judgment would be paid-Seizure of 1990 Nissan pick-up truck-Applicant agreeing withdrawal of man in possession not abandonment of seizure-Crown's judgment paid out-Whether there was seizure question of fact-Facts in favour of finding seizure strong as Pacific Bailiff obtained bailment agreement from vehicle owner, applicant-Onus on Pacific Bailiff to show payment of debt from proceeds of sale of land consequence of seizure of vehicle-Presumption seizure had something to do with payment not satisfactorily rebutted by applicant-Seizure effective cause in levying money, through sale of real property, to satisfy judgment-Court Order Enforcement Act, s. 106(3) allowing poundage at lesser rate in some instances not applicable-Poundage claimed by sheriff not leading to absurd results-Bailiff showing initiative by leaving vehicle with applicant on bailee's undertaking, and willingness to make reasonable decision outside of instructions-Bailiff's decision later approved by Crown as judgment creditor-No compelling reason to fix poundage at lesser rate-Application dismissed-Federal Court Rules, C.R.C., c. 663, R. 324-Court Order Enforcement Act, R.S.B.C., 1979, c. 75, s. 106(3).